[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2013 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 48

Federal Acquisition Regulations System


________________________

Chapters 7 to 14

                         Revised as of October 1, 2013

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2013
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 48:
          Chapter 7--Agency for International Development            3
          Chapter 8--Department of Veterans Affairs                147
          Chapter 9--Department of Energy                          303
          Chapter 10--Department of the Treasury                   581
          Chapter 12--Department of Transportation                 605
          Chapter 13--Department of Commerce                       669
          Chapter 14--Department of the Interior                   775
  Finding Aids:
      Table of CFR Titles and Chapters........................     857
      Alphabetical List of Agencies Appearing in the CFR......     877
      List of CFR Sections Affected...........................     887

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 48 CFR 701.105 
                       refers to title 48, part 
                       701, section 105.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2013), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
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Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
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CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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the top of odd-numbered pages.
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    Charles A. Barth,
    Director,
    Office of the Federal Register.
    October 1, 2013.







[[Page ix]]



                               THIS TITLE

    Title 48--Federal Acquisition Regulations System is composed of 
seven volumes. The chapters in these volumes are arranged as follows: 
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts 
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and 
chapter 29 to end. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 2013.

    The Federal acquisition regulations in chapter 1 are those 
government-wide acquisition regulations jointly issued by the General 
Services Administration, the Department of Defense, and the National 
Aeronautics and Space Administration. Chapters 2 through 99 are 
acquisition regulations issued by individual government agencies. Parts 
1 to 69 in each of chapters 2 through 99 are reserved for agency 
regulations implementing the Federal acquisition regulations in chapter 
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2 
through 99 contain agency regulations supplementing the Federal 
acquisition regulations.

    The OMB control numbers for the Federal Acquisition Regulations 
System appear in section 1.106 of chapter 1. For the convenience of the 
user section 1.106 is reprinted in the Finding Aids section of the 
second volume containing chapter 1 (parts 52 to 99).

    For this volume, Robert J. Sheehan, III was Chief Editor. The Code 
of Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

[[Page 1]]



            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM




                  (This book contains chapters 7 to 14)

  --------------------------------------------------------------------
                                                                    Part

chapter 7--Agency for International Development.............         701

chapter 8--Department of Veterans Affairs...................         801

chapter 9--Department of Energy.............................         901

chapter 10--Department of the Treasury......................        1033

chapter 12--Department of Transportation....................        1201

chapter 13--Department of Commerce..........................        1301

chapter 14--Department of the Interior......................        1401

[[Page 3]]



             CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT




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


  Editorial Note: Nomenclature changes to chapter 7 appear at 62 FR 
40466, July 29, 1997, and corrected at 62 FR 45334, August 27, 1997.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
701             Federal Acquisition Regulation System.......           5
702             Definitions of words and terms..............          10
703             Improper business practices and personal 
                    conflicts of interest...................          12
704             Administrative matters......................          12
                   SUBCHAPTER B--ACQUISITION PLANNING
705             Publicizing contract actions................          15
706             Competition requirements....................          15
707             Acquisition planning........................          18
709             Contractor qualifications...................          18
711             Describing agency needs.....................          18
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
713             Simplified acquisition procedures...........          20
714             Sealed bidding..............................          20
715             Contracting by negotiation..................          20
716             Types of contracts..........................          25
717             Special contracting methods.................          26
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
719             Small business programs.....................          27
722             Application of labor laws to Government 
                    acquisition.............................          36
724             Protection of privacy and freedom of 
                    information.............................          39
725             Foreign acquisition.........................          39
726             Other socioeconomic programs................          40
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
727             Patents, data, and copyrights...............          44

[[Page 4]]

728             Bonds and insurance.........................          44
731             Contract cost principles and procedures.....          46
732             Contract financing..........................          49
733             Protests, disputes, and appeals.............          51
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
734             Major system acquisition....................          55
736             Construction and architect-engineer 
                    contracts...............................          55
737             [Reserved]

                    SUBCHAPTER G--CONTRACT MANAGEMENT
742             Contract administration.....................          57
744             Subcontracting policies and procedures......          59
745             Government property.........................          59
747             Transportation..............................          59
749             Termination of contracts....................          59
750             Extraordinary contractual actions...........          61
                     SUBCHAPTER H--CLAUSES AND FORMS
752             Solicitation provisions and contract clauses          66
753             Forms.......................................          98
Appendixes A-C to Chapter 7 [Reserved]
Appendix D to Chapter 7--Direct USAID Contracts With a U.S. 
  Citizen or a U.S. Resident Alien for Personal Services 
  Abroad....................................................          98
Appendix E to Chapter 7 [Reserved]
Appendix F to Chapter 7--Use of Collaborative Assistance 
  Method for Title XII Activities...........................         124
Appendixes G-H to Chapter 7 [Reserved]
Appendix I to Chapter 7--USAID's Academic Publication Policy         128
Appendix J to Chapter 7--Direct USAID Contracts With a 
  Cooperating Country National and With a Third Country 
  National for Personal Services Abroad.....................         129

[[Page 5]]

                          SUBCHAPTER A_GENERAL

             PART 701_FEDERAL ACQUISITION REGULATION SYSTEM

               Subpart 701.1_Purpose, Authority, Issuance

Sec.

Sec. 701.105 OMB approval under the Paperwork Reduction Act.

  Subpart 701.3_U.S. Agency for International Development Acquisition 
                               Regulation


Sec. 701.301 Policy.

Sec. 701.303 Publication and codification.

             Subpart 701.4_Deviations from the FAR or AIDAR


Sec. 701.402 Policy.

Sec. 701.470 Procedure.

      Subpart 701.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 701.601 General.

Sec. 701.602-1 Authority of contracting officers in resolving audit 
          recommendations.

Sec. 701.602-3 Ratification of unauthorized commitments.

Sec. 701.603 Selection, appointment, and termination of appointment.

Sec. 701.603-70 Designation of contracting officers.

                Subpart 701.7_Determinations and Findings


Sec. 701.704 Content.

Sec. 701.707 Signatory authority.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13236, Apr. 3, 1984, unless otherwise noted.

               Subpart 701.1_Purpose, Authority, Issuance



Sec. 701.105  OMB approval under the Paperwork Reduction Act.

    (a) The following information collection and record keeping 
requirements established by USAID have been approved by OMB, and 
assigned an OMB control number and approval/expiration dates as 
specified below:

------------------------------------------------------------------------
                                                                 Burden
                                      OMB control   Expiration    hours
            AIDAR segment                 No.          date        per
                                                                 report
------------------------------------------------------------------------
733.7003(c).........................    0412-0520   08/31/2000        40
752.209-70..........................    0412-0520   08/31/2000         4
752.219-8...........................    0412-0520   08/31/2000         1
752.245-70..........................    0412-0520   08/31/2000        .5
752.245-71..........................    0412-0520   08/31/2000         1
752.7001(a).........................    0412-0520   08/31/2000        .5
752.7001(b).........................    0412-0520   08/31/2000        .5
752.7002(j).........................    0412-0520   08/31/2000         1
752.7003............................    0412-0520   08/31/2000         8
752.7004(b)(4)......................    0412-0520   08/31/2000        .5
752.7032............................    0412-0520   08/31/2000         2
752.7033............................    0412-0536   08/31/2000         4
------------------------------------------------------------------------

    (b) The information requested by the AIDAR sections listed in 
paragraph (a) is necessary to allow USAID to prudently administer public 
funds. It lets USAID make reasonable assessments of contractor 
capabilities and responsibility of costs. Information is required in 
order for a contractor and/or its employee to obtain a benefit-usually 
taking the form of payment under a government contract.
    (c) Public reporting burden for these collections of information is 
estimated as shown in paragraph (a) of this section. The estimated 
burden includes the time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collection of information. Send comments regarding the 
burden estimates or any other aspects of these collections of 
information, including suggestions for reducing the burden, to: U.S. 
Agency for International (USAID), Office of Acquisition and Assistance, 
Policy Division (M/OAA/P), Room 7.08-082U, 1300 Pennsylvania Avenue, 
N.W. Washington, D.C. 20523-7801; and Office of Management and Budget 
(OMB), Paperwork Reduction Project (0412-0520), Washington, D.C. 20503.

[59 FR 33445, June 29, 1994, as amended at 61 FR 39090, July 26, 1996; 
62 FR 40466, July 29, 1997; 64 FR 16648, Apr. 6, 1999; 72 FR 19670, Apr. 
19, 2007]

[[Page 6]]

  Subpart 701.3_U.S. Agency for International Development Acquisition 
                               Regulation

    Source: 64 FR 42040, Aug. 3, 1999, unless otherwise noted.



Sec. 701.301  Policy.

    (a) Responsibility. Subject to the direction of the Administrator, 
the Director, Office of Acquisition and Assistance (``M/OAA Director'') 
is responsible for:
    (1) Developing and maintaining necessary uniform procurement 
policies, procedures, and standards;
    (2) Providing assistance to the contracting activities as 
appropriate;
    (3) Keeping the Administrator and Executive Staff fully informed on 
procurement matters which should be brought to their attention; and
    (4) All agency head duties and authorities stated in (48 CFR) FAR 
subpart 1.3, in accordance with (48 CFR) AIDAR 701.601. These 
responsibilities include but are not limited to developing, issuing, and 
maintaining the USAID Acquisition Regulation (``AIDAR'', 48 CFR chapter 
7), USAID's supplement to the Federal Acquisition Regulation (48 CFR 
chapter 1), in coordination with the General counsel and such other 
offices as may be appropriate.
    (b) Applicability. (1) Unless a deviation is specifically authorized 
in accordance with subpart 701.4, or unless otherwise provided, the FAR 
and AIDAR apply to all contracts (regardless of currency of payment, or 
whether funds are appropriated or non-appropriated) to which USAID is a 
direct party.
    (2) At Missions where joint administrative services are arranged, 
procuring offices may apply the Department of State Acquisition 
Regulation (48 CFR chapter 6) for all administrative and technical 
support contracts except in defined areas. The Office of Administrative 
Services will furnish the defined areas and administrative guidelines 
for procurement to the overseas Missions. Administrative and local 
support services include the procurement accountability, maintenance and 
disposal of all office and residential equipment and furnishings, 
vehicles and expendable supplies purchased with administrative and/or 
technical support funds, either dollars or local currency.

[64 FR 42040, Aug. 3, 1999, as amended at 72 FR 19670, Apr. 19, 2007]



Sec. 701.303  Publication and codification.

    (a) The AIDAR is USAID's Acquisition Regulation supplementing the 
FAR (48 CFR chapter 1) and is published as chapter 7 of title 48, Code 
of Federal Regulations. AIDAR Circulars shall be used to promulgate 
changes to the AIDAR and shall be published in compliance with (48 CFR) 
FAR part 1.
    (b) Appendices. Significant procurement policies and procedures that 
do not correspond to or conveniently fit into the FAR system described 
in FAR 1.1 and 1.303 may be published as Appendices to the AIDAR. 
Appendices follow the main text of the AIDAR in a section entitled 
``Appendices to Chapter 7'' and contain a table of contents and the 
individual appendices identified by letter and subject title (e.g., 
``Appendix D--Direct USAID Contracts with a U.S. Citizen or a U.S. 
Resident Alien for Personal Services Abroad'').
    (c) Only the M/OAA Director has the authority to issue internal 
agency guidance applicable to all agency contracts. The heads of the 
various USAID contracting activities (see subparts 701.6 and 702.10) may 
issue operating instructions and procedures consistent with the FAR, 
AIDAR, and other Agency regulations, policies, and procedures for 
application within their organizations. One copy of each such issuance 
shall be forwarded to the Office of Acquisition and Assistance, Policy 
Division (M/OAA/POL). Insofar as possible, such material will be 
numerically keyed to the AIDAR.

[64 FR 42040, Aug. 3, 1999, as amended at 72 FR 19670, Apr. 19, 2007]

             Subpart 701.4_Deviations from the FAR or AIDAR



Sec. 701.402  Policy.

    It is the policy of USAID that deviation from the mandatory 
requirements of the FAR and AIDAR shall be kept at a minimum and be 
granted

[[Page 7]]

only if it is essential to effect necessary procurement and when special 
and exceptional circumstances make such deviation clearly in the best 
interest of the Government.



Sec. 701.470  Procedure.

    (a) Deviation from the FAR or AIDAR affecting one contract or 
transaction. (1) Deviations which affect only one contract or 
procurement will be made only after prior approval by the head of the 
contracting activity. Deviation requests containing the information 
listed in paragraph (c) of this section shall be submitted sufficiently 
in advance of the effective date of such deviation to allow adequate 
time for consideration and evaluation by the head of the contracting 
activity.
    (2) Requests for such deviations may be initiated by the responsible 
USAID contracting officer who shall obtain clearance and approvals as 
may be required by the head of the contracting activity. Prior to 
submission of the deviation request to the head of the contracting 
activity for approval, the contracting officer shall obtain written 
comments from the Office of Acquisition and Assistance, Policy Division 
(M/OAA/P), hereinafter referred to as ``M/OAA/P''. The M/OAA/P shall 
normally be allowed 10 working days prior to the submission of the 
deviation request to the head of the contracting activity to review the 
request and to submit comments. If the exigency of the situation 
requires more immediate action, the requesting office may arrange with 
the M/OAA/P for a shorter review period. In addition to a copy of the 
deviation request, the M/OAA/P shall be furnished any background or 
historical data which will contribute to a more complete understanding 
of the deviation. The comments of the M/OAA/P shall be made a part of 
the deviation request file which is forwarded to the head of the 
contracting activity.
    (3) Coordination with the Office of General Counsel, as appropriate, 
should also be effected prior to approval of a deviation by the head of 
the contracting activity.
    (b) Class deviations from the FAR or AIDAR. Class deviations are 
those which affect more than one contract or contractor.
    (1) Class deviations from the AIDAR will be processed in the same 
manner as prescribed in paragraph (a) of this section. Individual heads 
of contracting activities have authority to approve class deviations 
affecting only contracts within their own contracting activities, except 
that the Director, M/OAA, has authority to approve class deviations that 
affect more than one contracting activity.
    (2) Class deviations from the FAR shall be considered jointly by 
USAID and the Chairperson of the Civilian Agency Acquisition Council (C/
CAAC) (FAR 1.404) unless, in the judgement of the head of the 
contracting activity, after due consideration of the objective of 
uniformity, circumstances preclude such consultation. The head of the 
contracting activity shall certify on the face of the deviation the 
reason for not coordinating with the C/CAAC. In such cases, the M/OAA/P, 
shall be responsible for notifying the C/CAAC of the class deviation.
    (3) Class deviations from the FAR shall be processed as follows:
    (i) The request shall be processed in the same manner as paragraph 
(a) of this section, except that the M/OAA/P, shall be allowed 15 
working days prior to the submission of the deviation request to the 
head of the contracting activity to effect the necessary coordination 
with the C/CAAC and to submit comments. If the exigency of the situation 
requires more immediate action, the requesting office may arrange with 
the M/OAA/P for a shorter review and coordination period. The comments 
of the C/CAAC and the M/OAA/P shall be made a part of the deviation 
request file which is forwarded to the head of the contracting activity.
    (ii) The request shall be processed in the same manner as paragraph 
(a) of this section if the request is not being jointly considered by 
USAID and the C/CAAC.
    (4) Deviations involving basic agreements or other master type 
contracts are considered to involve more than one contract.
    (5) Unless the approval is sooner rescinded, class deviations shall 
expire 2 years from the date of approval provided that deviation 
authority shall continue to apply to contracts or task

[[Page 8]]

orders which are active at the time the class deviation expires. 
Authority to continue the use of such deviation beyond 2 years may be 
requested in accordance with the procedures prescribed in paragraph (a) 
of this section.
    (6) Expiration dates shall be shown on all class deviations.
    (c) Requests for deviation shall contain a complete description of 
the deviation, the effective date of the deviation, the circumstances in 
which the deviation will be used, a specific reference to the regulation 
being deviated from, an indication as to whether any identical or 
similar deviations have been approved in the past, a complete 
justification of the deviation including any added or decreased cost to 
the Government, the name of the contractor, and the contract or task 
order number.
    (d) Register of deviations. Separate registers shall be maintained 
by the procuring activities of the deviations granted from the FAR and 
AIDAR. Each deviation shall be recorded in its appropriate register and 
shall be assigned a control number as follows: the symbol of the 
procuring activity, the abbreviation ``DEV'', the fiscal year, the 
serial number [issued in consecutive order during each fiscal year] 
assigned to the particular deviation and the suffix ``c'' if it is a 
class deviation, e.g. CM-DEV-85-1, CM-DEV-85-2c. The control number 
shall be embodied in the document authorizing the deviation and shall be 
cited in all references to the deviation.
    (e) Central record of deviations. Copies of approved deviations 
shall be furnished promptly to the M/OAA/P, who shall be responsible for 
maintaining a central record of all deviations that are granted.
    (f) Semiannual report of class deviations. (1) USAID contracting 
officers shall submit a semiannual report to the M/OAA/P of all contract 
actions effected under class deviations to the FAR and AIDAR which have 
been approved pursuant to paragraph (b) of this section.
    (2) The report shall contain the applicable deviation control 
number, the contractor's name, contract number and task order number (if 
appropriate).
    (3) The report shall cover the 6-month periods ending June 30 and 
December 31, respectively, and shall be submitted within 20 working days 
after the end of the reporting period.

[49 FR 13236, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 55 
FR 6802, Feb. 27, 1990; 56 FR 67224, Dec. 30, 1991; 59 FR 33445, June 
29, 1994; 61 FR 39090, July 26, 1996; 72 FR 19670, Apr. 19, 2007]

      Subpart 701.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 701.601  General

    (a)(1) Pursuant to the delegations in ADS 103.5.10, the M/OAA 
Director is authorized to act as the Head of the Agency for all purposes 
described in the Federal Acquisition Regulation (FAR, 48 CFR Chapter 1), 
except for the authority in (48 CFR) FAR sections 6.302-7(a)(2), 6.302-
7(c)(1), 17.602(a), 19.201(c), 27.306(a), 27.306(b), and 30.201-5, or 
where the ``head of the agency'' authority is expressly not delegable 
under the FAR or AIDAR. Further, the M/OAA Director is responsible for 
implementing the procurement related aspects of the Foreign Assistance 
Act, Executive Order 11223, the Office of Federal Procurement Policy 
Act, and other statutory and Executive Branch procurement policies and 
requirements applicable to USAID operations, except for those 
authorities and responsibilities delegated to the Procurement Executive 
as specified in ADS 103.5.10f.
    (2) The M/OAA Director has specified authority to:
    (i) Select and appoint contracting officers and terminate their 
appointments in accordance with section 1.603 of the Federal Acquisition 
Regulation; and
    (ii) Exercise in person or by delegation the authorities stated in 
subpart 1.4 of the Federal Acquisition Regulation with regard to 
deviations from that regulation.
    (b) Except as otherwise prescribed, the head of each contracting 
activity (as defined in 702.170) is responsible for the procurement of 
supplies and services under or assigned to the procurement cognizance of 
his or her activity. The heads of USAID contracting activities are 
vested with broad authority to carry out the programs and activities

[[Page 9]]

for which they are responsible. This authority includes authority to 
execute contracts and the establishment of procurement policies, 
procedures, and standards appropriate for their programs and activities, 
subject to government-wide and USAID requirements and restrictions, such 
as those found at 701.376-4 and particularly 701.603-70, the USAID 
policy regarding the direct-hire status of contracting officers.
    (c) The authority of heads of contracting activities to execute 
contracts is limited as follows:
    (1) Director, Office of U.S. Foreign Disaster Assistance. Authority 
to execute contracts for disaster relief purposes during the first 72 
hours of a disaster in a cumulative total amount not to exceed $500,000. 
Authority to execute simplified acquisitions up to $50,000 at any time. 
May issue warrants for simplified acquisitions up to $50,000 to 
qualified individuals on his or her staff.
    (2) Director, Center for Human Capacity Development (G/HCD). 
Authority to execute simplified acquisitions up to $10,000. Unlimited 
authority for procuring participant training based on published catalog 
prices, using M/OAA/E approved forms. May issue warrants for simplified 
acquisitions up to $10,000 to qualified individuals on his or her staff.
    (3) Overseas heads of contracting activities. Authority to sign 
contracts where the cumulative amount of the contract, as amended, does 
not exceed $250,000 (or local currency equivalent) for personal services 
contracts or $100,000 (or local currency equivalent) for all other 
contracts. May issue warrants for simplified acquisitions up to $50,000 
to qualified individuals on his or her staff.

[53 FR 4980, Feb. 19, 1988, as amended at 55 FR 6802, Feb. 27, 1990; 56 
FR 67224, Dec. 30, 1991; 58 FR 8702, Feb. 17, 1993; 59 FR 33445, June 
29, 1994; 60 FR 11912, Mar. 3, 1995; 61 FR 39090, July 26, 1996; 62 FR 
40466, July 29, 1997; 64 FR 42041, Aug. 3, 1999; 72 FR 19670, Apr. 19, 
2007]



Sec. 701.602-1  Authority of contracting officers in resolving audit 
          recommendations.

    With the exception of termination settlements subject to part 749, 
Termination of Contracts, contracting officers shall have the authority 
to negotiate and enter into settlerments with contractors for costs 
questioned under audit reports, or to issue a contracting officer's 
final decision pursuant to the disputes clauses (in the event that 
questioned costs are not settled by negotiated agreement) in accordance 
with ADS Chapter 591.5.20. The negotiated settlement or final decision 
shall be final, subject only to a contractor's appeal, either under the 
provisions of the Contract Disputes Act of 1978, as amended (41 U.S.C. 
601-613), or to the courts. Policies and procedures for resolving audit 
recommendations are in accordance with ADS Chapters 591 and 592.

[62 FR 40466, July 29, 1997]



Sec. 701.602-3  Ratification of unauthorized commitments.

    (a) [Reserved]
    (b) Policy. (1) [Reserved]
    (2) In order to maintain management oversight and controls on 
unauthorized commitments, authority to ratify unauthorized commitments 
within USAID is reserved to the M/OAA Director.

[53 FR 6829, Mar. 3, 1988, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 701.603  Selection, appointment, and termination of appointment.



Sec. 701.603-70  Designation of contracting officers.

    A contracting officer represents the U.S. Government through the 
exercise of his/her delegated authority to negotiate, sign, and 
administer contracts on behalf of the U.S. Government. The contracting 
officer's duties are sensitive, specialized, and responsible. In order 
to insure proper accountability, and to preclude possible security, 
conflict of interest, or jurisdiction problems, it is USAID policy that 
USAID contracting officers must be U.S. citizen direct-hire employees of 
the U.S. Government.

[49 FR 13236, Apr. 3, 1984, as amended at 61 FR 39091, July 26, 1996]

[[Page 10]]

                Subpart 701.7_Determinations and Findings



Sec. 701.704  Content.

    There is no USAID-prescribed format or form for determinations and 
findings (D&Fs). D&Fs are to contain the information specified in FAR 
1.704 and any information which may be required by the FAR or AIDAR 
section under which the D&F is issued.

[58 FR 8702, Feb. 17, 1993, as amended at 62 FR 40466, July 29, 1997]



Sec. 701.707  Signatory authority.

    Unless otherwise specified in the FAR or AIDAR section under which 
the D&F is issued, the Contracting Officer is the signing official.

[58 FR 8702, Feb. 17, 1993]

                 PART 702_DEFINITIONS OF WORDS AND TERMS

                       Subpart 702.170_Definitions

Sec.

Sec. 702.170-1 USAID.

Sec. 702.170-2 Administrator.

Sec. 702.170-3 Contracting activities.

Sec. 702.170-4 Cooperating country.

Sec. 702.170-5 Cooperating country national (CCN).

Sec. 702.170-6 Executive agency.

Sec. 702.170-7 Foreign Assistance Act.

Sec. 702.170-8 Government, Federal, State, local and political 
          subdivisions.

Sec. 702.170-9 Head of agency.

Sec. 702.170-10 Head of the contracting activity.

Sec. 702.170-11 Mission.

Sec. 702.170-12 Overseas.

Sec. 702.170-13 Procurement Executive.

Sec. 702.170-14 [Reserved]

Sec. 702.170-15 Third country national (TCN).

Sec. 702.170-16 U.S. national (USN).

Sec. 702.170-17 Automated Directives System.

                   Subpart 702.270_Definitions Clause


Sec. 702.270-1 Definitions clause.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13238, Apr. 3, 1984, unless otherwise noted.

                       Subpart 702.170_Definitions



Sec. 702.170-1  USAID.

    USAID means the U.S. Agency for International Development and its 
predecessor agencies, including the International Cooperation 
Administration (ICA).



Sec. 702.170-2  Administrator.

    Administrator means the Administrator or Deputy Administrator of the 
U.S. Agency for International Development.



Sec. 702.170-3  Contracting activities.

    The contracting activities within USAID are:
    (a) The USAID/Washington activities. The contracting activities 
located in Washington are the Office of Acquisition and Assistance, 
Office of Foreign Disaster Assistance, and Center for Human Capacity 
Development (G/HCD). Subject to the limitations stated in 702.170-10, 
these contracting activities are responsible for procurement related to 
programs and activities for their areas. The Office of Acquisition and 
Assistance is responsible for procurements which do not fall within the 
responsibility of other contracting activities, or which are otherwise 
assigned to it.
    (b) The overseas field contracting activities. Each USAID Mission or 
post overseas is a contracting activity, responsible for procurement 
related to its programs and activities, subject to the limitations in 
702.170-10(b), which sets forth the contracting authority for Mission 
Directors and principal USAID officers at posts.

[50 FR 16085, Apr. 24, 1985, as amended at 50 FR 40528, Oct. 4, 1985; 50 
FR 50302, Dec. 10, 1985; 51 FR 20651, June 6, 1986; 56 FR 67224, Dec. 
30, 1991; 61 FR 39091, July 26, 1996; 62 FR 40466, July 29, 1997; 72 FR 
19670, Apr. 19, 2007]



Sec. 702.170-4  Cooperating country.

    Cooperating country means a foreign country in which there is a 
program or activity administered by USAID.

[[Page 11]]



Sec. 702.170-5  Cooperating country national (CCN).

    Cooperating country national (CCN) means an individual who is a 
cooperating country citizen or a non-cooperating country citizen 
lawfully admitted for permanent residence in the cooperating country.



Sec. 702.170-6  Executive agency.

    Executive agency includes the U.S. Agency for International 
Development (USAID) and its predecessor agencies, including the 
International Cooperation Administration.



Sec. 702.170-7  Foreign Assistance Act.

    Foreign Assistance Act means the Foreign Assistance Act of 1961, as 
amended (22 U.S.C., Chapter 32).



Sec. 702.170-8  Government, Federal, State, local and political 
          subdivisions.

    As used in the FAR and AIDAR, these terms do not refer to foreign 
entities except as otherwise stated.



Sec. 702.170-9  Head of agency.

    Head of agency means, for USAID, the Administrator, and the Deputy 
Administrator, and in accordance with the responsibilities and 
limitations set forth in 701.601(a)(1), the M/OAA Director.

[50 FR 52780, Dec. 26, 1985, as amended at 64 FR 42041, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 702.170-10  Head of the contracting activity.

    (a) The heads of USAID contracting activities are listed below. The 
limits of their contracting authority are set forth in 701.601.
    (1) USAID/Washington Heads of Contracting Activities:
    (i) Director, Office of Acquisition and Assistance;
    (ii) Director, Office of U.S. Foreign Disaster Assistance; and
    (iii) Director, Center for Human Capacity Development (G/HCD).
    (2) Overseas Heads of Contracting Activities: Each Mission Director 
or principal USAID officer at post (e.g. USAID Representative, USAID 
Affairs Officer, etc.)
    (b) Individuals serving in the positions listed in (a)(1) and (a)(2) 
of this section in an ``Acting'' capacity may exercise the authority 
delegated to that position.

[53 FR 4980, Feb. 19, 1988, as amended at 56 FR 67224, Dec. 30, 1991; 61 
FR 39091, July 26, 1996; 62 FR 40466, July 29, 1997; 72 FR 19670, Apr. 
19, 2007]



Sec. 702.170-11  Mission.

    Mission means the USAID mission or the principal USAID office or 
representative (including an embassy designated to so act) in a foreign 
country in which there is a program or activity administered by USAID.



Sec. 702.170-12  Overseas.

    Overseas means outside the United States, its possessions, and 
Puerto Rico.



Sec. 702.170-13  Procurement Executive.

    ``Procurement Executive'' is synonymous with ``Senior Procurement 
Executive'' as defined in FAR 2.101 and means the USAID official who is 
responsible for the management direction of USAID's assistance and 
acquisition (``A&A'') system, as so delegated and more fully described 
in ADS 103.5.10f.

[64 FR 42041, Aug. 3, 1999]



Sec. 702.170-14  [Reserved]



Sec. 702.170-15  Third country national (TCN).

    Third country national (TCN) means an individual who is neither a 
cooperating country national nor a U.S. national, but is a citizen of a 
country included in Geographic Code 935 (see 22 CFR 228.3).

[49 FR 13238, Apr. 3, 1984. Redesignated at 50 FR 16086, Apr. 24, 1985, 
as amended at 62 FR 40466, July 29, 1997]



Sec. 702.170-16  U.S. national (USN).

    U.S. national (USN) means an individual who is a U.S. citizen or a 
non-U.S. citizen lawfully admitted for permanent residence in the United 
States.

[49 FR 13238, Apr. 3, 1984. Redesignated at 50 FR 16086, Apr. 24, 1985]

[[Page 12]]



Sec. 702.170-17  Automated Directives System.

    ``Automated Directives System'' (``ADS'') sets forth the Agency's 
policies and essential procedures, as well as supplementary 
informational references. It contains six functional series, interim 
policy updates, valid USAID handbook chapters, a resource library, and a 
glossary. References to ``ADS'' throughout this chapter 7 are references 
to the Automated Directives System. Procurement-related sections of this 
system are accessible to the general public at the following internet 
address: http://www.info.usaid.gov/pubs/ads. The entire ADS is available 
on the ADS Compact Disk (ADS CD), which may be purchased from the Agency 
at cost by submitting a completed ADS CD order form. To request a fax 
copy of the ADS CD order form, send an e-mail with your fax number to 
[email protected].

[64 FR 42041, Aug. 3, 1999]

                   Subpart 702.270_Definitions Clause



Sec. 702.270-1  Definitions clause.

    Use the appropriate clause in 752.202-1, in addition to the clause 
in FAR 52.202-1.

 PART 703_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 703.1_Safeguards

Sec.

Sec. 703.104-5 Disclosure, protection, and marking of proprietary and 
          source information.

Sec. 703.104-10.1 Violations or possible violations.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

                        Subpart 703.1_Safeguards



Sec. 703.104-5  Disclosure, protection, and marking of proprietary and 
          source information.

    A Contracting Office may authorize release of proprietary and/or 
source selection information outside the Government for evaluation 
purposes pursuant to FAR 15.305(c) and (AIDAR) 48 CFR 715.305(c).

[64 FR 16648, Apr. 6, 1999]



Sec. 703.104-10.1  Violations or possible violations.

    Requests for concurrence under paragraph (a)(1) of FAR 3.104-10 
shall be forwarded to one level above the Contracting Officer.

[64 FR 16648, Apr. 6, 1999]

                     PART 704_ADMINISTRATIVE MATTERS

    Subpart 704.4_Safeguarding Classified Information Within Industry

Sec.

Sec. 704.404 Contract clause.

Subpart 704.8--Contract Files [Reserved]

                     Subpart 704.70_Partner Vetting


Sec. 704.7001 Scope of subpart.

Sec. 704.7002 Definitions.

Sec. 704.7003 Policy.

Sec. 704.7004 Procedures.

Sec. 704.7004-1 Preaward requirements.

Sec. 704.7004-2 Post award requirements.

Sec. 704.7004-3 Subcontracts.

Sec. 704.7005 Solicitation provision and contract clause.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Subpart 704.4_Safeguarding Classified Information Within Industry



Sec. 704.404  Contract clause.

    If the contract involves access to classified (``Confidential'', 
``Secret'', or ``Top Secret''), or administratively controlled 
(``Sensitive But Unclassified'') information, use the contract clause in 
752.204-2.

[49 FR 13239, Apr. 3, 1984. Redesignated at 54 FR 16122, Apr. 21, 1989, 
as amended at 62 FR 40467, July 29, 1997]

Subpart 704.8--Contract Files [Reserved]

[[Page 13]]

                     Subpart 704.70_Partner Vetting

    Source: 77 FR 8170, Feb. 14, 2012, unless otherwise noted.



Sec. 704.7001  Scope of subpart.

    This subpart prescribes the policies and procedures to apply partner 
vetting to USAID acquisitions.



Sec. 704.7002  Definitions.

    As used in this subpart--
    Key individual means:
    (1) Principal officers of the organization's governing body (e.g., 
chairman, vice chairman, treasurer and secretary of the board of 
directors or board of trustees);
    (2) The principal officer and deputy principal officer of the 
organization (e.g., executive director, deputy director, president, vice 
president);
    (3) The program manager or chief of party for the USG-financed 
program; and
    (4) Any other person with significant responsibilities for 
administration of the USG-financed activities or resources, such as key 
personnel as described in Automated Directives System Chapter 302. Key 
personnel, whether or not they are employees of the prime contractor, 
must be vetted.
    Vetting official means the USAID employee identified in the 
solicitation or contract as having responsibility for receiving vetting 
information, responding to questions about information to be included on 
the Partner Information Form, coordinating with the USAID Office of 
Security (SEC), and conveying the vetting determination to each offeror, 
potential subcontractors subject to vetting, and the contracting 
officer. The vetting official is not part of the contracting office and 
has no involvement in the source selection process.



Sec. 704.7003  Policy.

    In the interest of national security, USAID may determine that a 
particular acquisition is subject to vetting. In that case, USAID will 
require vetting of all key individuals of offerors, first tier 
subcontractors, and any other class of subcontracts if identified in the 
solicitation and resulting contract. When USAID conducts partner 
vetting, it will not award a contract to any offeror who does not pass 
vetting.



Sec. 704.7004  Procedures.



Sec. 704.7004-1  Preaward requirements.

    (a) When USAID determines an acquisition to be subject to vetting, 
the contracting officer determines the appropriate stage of the 
acquisition cycle to require offerors to submit the completed USAID 
Partner Information Form, USAID Form 500-13, to the vetting official 
identified in the solicitation. The contracting officer must specify in 
the solicitation the stage at which the offerors will be required to 
submit the USAID Partner Information Form.
    (b) For negotiated procurements using FAR part 15, this stage will 
typically be when the contracting officer establishes the competitive 
range (48 CFR 15.306(c)). However, the contracting officer may determine 
that vetting is more appropriate at a different stage of the source 
selection process, such as immediately prior to award, and then require 
only the apparently successful offeror to submit the completed USAID 
Partner Information Form.
    (c) For Indefinite Delivery contracts under FAR subpart 16.5, 
vetting will occur prior to award of the basic contract if the 
contracting officer anticipates placing orders subject to vetting under 
that contract. Vetting will also occur before USAID places any orders 
subject to vetting. The contracting officer will notify awardees of the 
appropriate timing for vetting in the request for task or delivery order 
proposals. See AIDAR subpart 716.5 for vetting procedures for task and 
delivery orders.
    (d) For all other acquisitions, including those under FAR parts 13 
and 14, the contracting officer determines the appropriate time to 
require potential awardee(s) to submit the completed USAID Partner 
Information Form to the vetting official.
    (e) Source selection proceeds separately from vetting. The source 
selection authority makes the source selection determination separately 
from the vetting process and without knowledge of vetting-related 
information other

[[Page 14]]

than that the apparently successful offeror has passed or not passed 
vetting.
    (f) The contracting officer may only award to an offeror who has 
passed vetting.



Sec. 704.7004-2  Post award requirements.

    (a) For those contracts and task orders the agency has determined 
are subject to vetting, the contractor must submit the completed USAID 
Partner Information Form any time it changes:
    (1) Key individuals, and
    (2) Subcontractors for which vetting is required.
    (b) USAID may vet key individuals of the contractor and any required 
subcontractors periodically during contract performance using the 
information already submitted on the Form.



Sec. 704.7004-3  Subcontracts.

    (a) When the prime contract is subject to vetting, vetting is 
required for key individuals of all subcontracts under that contract for 
which consent is required under FAR clause 52.244-2, Subcontracts.
    (b) The contracting officer must not consent to a subcontract with 
any subcontractor subject to vetting until that subcontractor has passed 
vetting.
    (c) Vetting may be required for key individuals of subcontracts at 
any tier for certain classes of items (supplies and services). The 
contracting officer must identify these classes of items in the 
solicitation.
    (d) The contractor may instruct prospective subcontractors who are 
subject to vetting to submit the USAID Partner Information Form to the 
vetting official as soon as the contractor submits the USAID Partner 
Information Form for its key individuals.



Sec. 704.7005  Solicitation provision and contract clause.

    (a) The contracting officer will insert the provision at 752.204-70 
Partner Vetting Pre-Award Requirements, in all solicitations USAID 
identifies as subject to vetting.
    (b) Except for awards made under FAR part 16, the contracting 
officer will--
    (1) Insert the clause at 752.204-71 Partner Vetting, in all 
solicitations and contracts USAID identifies as subject to vetting, or
    (2) Use the clause with its Alternate I when USAID determines that 
subcontracts at any tier for certain classes of supplies or services are 
subject to vetting.
    (c) For awards made under FAR part 16, see (48 CFR) subpart 716.5.

[[Page 15]]

                    SUBCHAPTER B_ACQUISITION PLANNING

                  PART 705_PUBLICIZING CONTRACT ACTIONS

Sec.

Sec. 705.002 Policy.

           Subpart 705.2_Synopsis of Proposed Contract Actions


Sec. 705.202 Exceptions.

Sec. 705.207 Preparation and transmittal of certain synopses.

Sec. 705.502 Authority.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp., 
p. 435; 40 U.S.C. 474.



Sec. 705.002  Policy.

    (a) USAID's Office of Small and Disadvantaged Business Utilization 
maintains an USAID Consultant Registry Information System (ACRIS), which 
serves as a reference source and an indication of a prospective 
contractor's interest in performing USAID contracts. Prospective 
contractors are invited to file the appropriate form (Standard Forms 
254/255, Architect-Engineer and Related Services Questionnaire; or USAID 
Form 1420-50, USAID Consultant Registry Information System (ACRIS) 
Organization and Individual Profile) with USAID's Office of Small and 
Disadvantaged Business Utilization (Department of State, U.S. Agency for 
International Development, Washington, DC 20523-1414--Attention: Office 
of Small and Disadvantaged Business Utilization). These forms should be 
updated annually.
    (b) USAID policy is to include all Commerce Business Daily Notices 
and solicitations on the Internet.

[50 FR 40976, Oct. 8, 1985, and 50 FR 51396, Dec. 17, 1985, as amended 
at 52 FR 21058, June 4, 1987; 56 FR 2699, Jan. 24, 1991; 62 FR 40467, 
July 29, 1997]

           Subpart 705.2_Synopsis of Proposed Contract Actions



Sec. 705.202  Exceptions.

    (a) [Reserved]
    (b) The head of the U.S. Agency for International Development has 
determined after consultation with the Administrator for Federal 
Procurement Policy and the Administrator of the Small Business 
Administration, that advance notice is not appropriate or reasonable for 
contract actions described in 706.302-70(b)(1) through (b)(3).
    (c) Advance notice is not required for contract actions undertaken 
in accordance with 706.302-71.

[51 FR 42845, Nov. 26, 1986, as amended at 54 FR 28069, July 5, 1989; 55 
FR 8469, Mar. 8, 1990; 55 FR 39154, Sept. 25, 1990; 56 FR 27208, June 
13, 1991; 57 FR 5235, Feb. 13, 1992]



Sec. 705.207  Preparation and transmittal of certain synopses.

    The responsible contracting officer shall notify USAID's Office of 
Small and Disadvantaged Business Utilization (OSDBU) at least seven 
business days before publicizing a solicitation in the Commerce Business 
Daily for an acquisition:
    (a) Which is to be funded from amounts referred to in section 
706.302-71(a); and
    (b) Which is expected to exceed $100,000.

For exceptions, see 726.7005.

[56 FR 27208, June 13, 1991, as amended at 62 FR 40467, July 29, 1997]



Sec. 705.502  Authority.

    (a) The M/OAA Director, acting as head of the Agency under the 
authority of 701.601(a)(1), hereby authorizes USAID contracting officers 
to place paid advertisements and notices in newspapers and periodicals. 
Contracting officers shall document the contract file to reflect 
consideration of the requirements of (48 CFR) FAR 5.101(b)(4).

[64 FR 5006, Feb. 2, 1999, as amended at 64 FR 42042, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]

                    PART 706_COMPETITION REQUIREMENTS

Sec.

Sec. 706.003 Definitions.

Subparts 706.1-706.2 [Reserved]

[[Page 16]]

           Subpart 706.3_Other Than Full and Open Competition


Sec. 706.302-5 Authorized or required by statute.

Sec. 706.302-70 Impairment of foreign aid programs.

Sec. 706.302-71 Small disadvantaged businesses.

Sec. 706.303-1 Requirements.

                   Subpart 706.5_Competition Advocates


Sec. 706.501 Requirement.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp., 
p. 435; 40 U.S.C. 474.



Sec. 706.003  Definitions.

    Procuring activity means ``contracting activity'', as defined in 
702.170-3.

[50 FR 40528, Oct. 4, 1985]

Subparts 706.1-706.2 [Reserved]

           Subpart 706.3_Other Than Full and Open Competition



Sec. 706.302-5  Authorized or required by statute.

    Certain annual appropriations acts authorize USAID to contract with 
certain disadvantaged enterprises using other than full and open 
competition. The provisions implementing this authority are set forth in 
706.302-71 and part 726.

[58 FR 8702, Feb. 17, 1993, as amended at 62 FR 40467, July 29, 1997]



Sec. 706.302-70  Impairment of foreign aid programs.

    (a) Authority. (1) Citation: 40 U.S.C. 474.
    (2) Full and open competition need not be obtained when it would 
impair or otherwise have an adverse effect on programs conducted for the 
purposes of foreign aid, relief, and rehabilitation.
    (b) Application. This authority may be used for:
    (1) An award under section 636(a)(3) of the Foreign Assistance Act 
of 1961, as amended, involving a personal services contractor serving 
abroad;
    (2) An award of $250,000 or less by an overseas contracting 
activity;
    (3)(i) An award for which the Assistant Administrator responsible 
for the project or program makes a formal written determination, with 
supporting findings, that compliance with full and open competition 
procedures would impair foreign assistance objectives, and would be 
inconsistent with the fulfillment of the foreign assistance program; or
    (ii) Awards for countries, regions, projects, or programs for which 
the Administrator of USAID makes a formal written determination, with 
supporting findings, that compliance with full and open competition 
procedures would impair foreign assistance objectives, and would be 
inconsistent with the fulfillment of the foreign assistance program.
    (4) Awards under AIDAR 715.370-1 (Title XII selection procedure--
general) or 715.370-2 (Title XII selection procedure--collaborative 
assistance).
    (5) An award for the continued provision of highly specialized 
services when award to another resource would result in substantial 
additional costs to the government or would result in unacceptable 
delays.
    (c) Limitations. (1) Offers shall be requested from as many 
potential offerors as is practicable under the circumstances. While the 
authority at 706.302-70(b)(5) is for use when the contracting officer 
determines that the incumbent contractor is the only practicable, 
potential offeror, the requirement to publicize the intended award, as 
required in FAR 5.201, still applies.
    (2) The contract file must include appropriate explanation and 
support justifying the award without full and open competition, as 
provided in FAR 6.303, except that determinations made under 706.302-
70(b)(3) will not be subject to the requirement for contracting officer 
certification or to approvals in accord with FAR 6.304.
    (3) The authority in 706.302-70(b)(3)(i) shall be used only when no 
other authority provided in FAR 6.302 or AIDAR 706.302 is suitable. The 
specific foreign assistance objective which would be impaired must be 
identified and explained in the written determination and finding. Prior 
consultation with the Agency Competition Advocate (see 706.501) is 
required before executing the written determination and finding, and 
this consultation must

[[Page 17]]

be reflected in the determination and finding.
    (4) Use of the authority in 706.302-70(b)(5) for proposed follow-on 
amendments in excess of one year or over $250,000 is subject to the 
approval of the Agency Competition Advocate. For all other follow-on 
amendments using this authority, the contracting officer's certification 
required in FAR 6.303-2(a)(12) will serve as approval.

[50 FR 40976, Oct. 8, 1985, and 50 FR 51395, Dec. 17, 1985, as amended 
at 54 FR 28069, July 5, 1989; 54 FR 46389, Nov. 3, 1989; 57 FR 5235, 
Feb. 13, 1992; 61 FR 39091, July 26, 1996; 62 FR 40467, July 29, 1997; 
64 FR 42042, Aug. 3, 1999]



Sec. 706.302-71  Small disadvantaged businesses.

    (a) Authority. (1) Citations: Sec. 579, Pub. L. 101-167 (Fiscal Year 
(FY) 1990), Sec. 567, Pub. L. 101-513 (FY 1991), Sec. 567, Pbu. L. 102-
145 (FY 1992), Sec. 562, Pub. L. 102-391 (FY 1993), Sec. 558, Pub. L. 
103-87 (FY 1994), and Sec. 555, Pub. L. 103-306 (FY 1995).
    (2) Except to the extent otherwise determined by the Administrator, 
not less than ten percent of the amounts made available through the 
appropriations cited in paragraph (a)(1) of this section for development 
assistance and for assistance for famine recovery and development in 
Africa shall be used only for activities of disadvantaged enterprises 
(as defined in 726.7002). In order to achieve its goal, USAID is 
authorized in the cited statutes to use other than full and open 
competition to award contracts to small business concerns owned and 
controlled by socially and economically disadvantaged individuals (small 
disadvantaged businesses as defined in 726.7002), historically black 
colleges and universities, colleges and universities having a student 
body of which more than 40 percent of the students are Hispanic 
Americans, and private voluntary organizations which are controlled by 
individuals who are socially and economically disadvantaged, as the 
terms are defined in 726.7002.
    (b) Application. This authority may be used only if the Agency 
determines in accordance with 726.7004 that:
    (1) The acquisition is to be funded from amounts referred to in 
paragraph (a) of this section;
    (2) Award of the acquisition to an eligible organization is 
appropriate to meet the requirement in paragraph (a)(2) of this section; 
and
    (3) After considering whether the acquisition can be made under the 
authority of section 8(a), award under section 8(a) is not practicable.
    (c) Limitations. (1) Offers shall be requested from as many 
potential offerors as is practicable under the circumstances.
    (2) Use of this authority is not subject to the requirements in FAR 
6.303 and FAR 6.304, provided that the contract file includes a 
certification by the contracting officer stating that the procurement is 
being awarded pursuant to 706.302-71 and that the application 
requirements and limitations of 706.302-71 (b) and (c) have been 
complied with.

[56 FR 27208, June 13, 1991, as amended at 58 FR 8702, Feb. 17, 1993; 61 
FR 51235, Oct. 1, 1996; 62 FR 40467, July 29, 1997]



Sec. 706.303-1  Requirements.

    (a)-(c) [Reserved]
    (d) USAID project procurements are generally not subject to the 
Trade Agreements Acts of 1979 (see 725.403 of this chapter). To the 
extent procurements are made under the authority of FAR 6.302-3(a)(2)(i) 
or FAR 6.302-7 with Operating Expenses (OE) Funds, the Contracting 
Officer shall send a copy of the justification to the Office of the 
United States Trade Representative, 600 17th Street, NW., Washington, DC 
20506, ATTN: Director, International Procurement Policy.

[50 FR 16086, Apr. 24, 1985]

                   Subpart 706.5_Competition Advocates



Sec. 706.501  Requirement.

    The USAID Administrator delegated the authority to designate the 
agency competition advocate and a competition advocate for each agency 
procuring activity (see 706.003 of this part) to the M/OAA Director. The 
M/OAA Director, under the Administrator's delegation, has designated the 
M/OAA Deputy Director for Policy, Evaluation and Support as the Agency's 
competition advocate and the deputy head of each

[[Page 18]]

contracting activity as the competition advocate for each activity. The 
competition advocate for M/OAA is the Deputy Director for Operations. If 
there is no deputy, the head of the contracting activity is designated 
the competition advocate for that activity. The competition advocate's 
duties may not be redelegated, but can be exercised by persons serving 
as acting deputy (or acting head) of the contracting activity. For 
definitions of contracting activity and head of contracting activity, 
see 702.170-3 and 702.170-10, respectively.

[59 FR 33446, June 29, 1994, as amended at 64 FR 5006, Feb. 2, 1999; 64 
FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]

                      PART 707_ACQUISITION PLANNING

Subpart 707.1--Acquisition Plans [Reserved]

                   PART 709_CONTRACTOR QUALIFICATIONS

Sec.

          Subpart 709.4_Debarment, Suspension and Ineligibility


Sec. 709.403 Definitions.

           Subpart 709.5_Organizational Conflicts of Interest


Sec. 709.503 Waiver.

Sec. 709.507-2 Contract clause.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

          Subpart 709.4_Debarment, Suspension and Ineligibility



Sec. 709.403  Definitions.

    Debarring official in USAID is the M/OAA Director.
    Suspending official in USAID is the M/OAA Director.

[62 FR 40467, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]

           Subpart 709.5_Organizational Conflicts of Interest



Sec. 709.503  Waiver.

    For purposes of approving waivers or further delegating the 
authority to approve waivers pursuant to FAR 9.503, the M/OAA Director 
is the Agency head (see AIDAR 701.601(a)(1)). The M/OAA Director hereby 
delegates the authority to approve waivers pursuant to FAR 9.503 to the 
heads of USAID contracting activities, as defined in AIDAR 702.170-10.

[64 FR 42042, Aug. 3, 1999, as amended at 72 FR 19670, Apr. 19, 2007]



Sec. 709.507-2  Contract clause.

    (a)-(b) [Reserved]
    (c) In order to avoid problems from organizational conflicts of 
interest that may be discovered after award of a contract, the clause 
found at 752.209-71 shall be inserted in all contracts whenever the 
solicitation or resulting contract or both include a provision in 
accordance with (48 CFR) FAR 9.507-1, or a clause in accordance with (48 
CFR) FAR 9.507-2, establishing a restraint on the contractor's 
eligibility for future contracts.

[58 FR 42255, Aug. 9, 1993, as amended at 64 FR 5006, Feb. 2, 1999]

                    PART 711_DESCRIBING AGENCY NEEDS

Sec.

Sec. 711.002-70 Metric system waivers.

Sec. 711.002-71 Solicitation provisions and contract clauses.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.



Sec. 711.002-70  Metric system waivers.

    (a) Criteria. The FAR 11.002(b) requirement to use the metric system 
of measurement for specifications and quantitative data that are 
incorporated in or required by USAID contracts may be waived when USAID 
determines in writing that such usage is impractical or is likely to 
cause U.S. firms to experience significant inefficiencies or the loss of 
markets.

[[Page 19]]

    (b) Authorization. (1) The USAID Metric Executive (as designated in 
ADS chapter 323), the contracting officer, and the USAID official who 
approves the procurement requirement are authorized to waive the metric 
requirement for one of the above reasons. The USAID Metric Executive is 
authorized to overrule a decision to grant a waiver, or to nullify a 
blanket waiver made by another approving official so long as a 
contractor's rights under an executed contract are not infringed upon.
    (2) A blanket waiver for a class of multiple transactions may be 
issued for a term not to exceed three years.
    (3) When a waiver will be based upon the adverse impact on U.S. 
firms, clearance from the USAID Metric Executive and the Office of Small 
and Disadvantaged Business Utilization (SDB) will be obtained prior to 
authorization.
    (c) Records and reporting. (1) The basis for each waiver and any 
plans to adapt similar requirements to metric specifications in future 
procurements should be documented in the contract file.
    (2) Each procurement activity will maintain a log of the waivers 
from the metric requirements which are authorized for its procurements. 
The logs shall list the commodity/service being procured, total dollar 
value of the procured item(s), waiver date, authorizing official, basis 
for waiver, and USAID actions that can promote metrication and lessen 
the need for future waivers.
    (3) Within 30 days of the closing of each fiscal year, each USAID/W 
procurement activity and each Mission will submit a copy of the metric 
waiver log for the year to the USAID Metric Executive. (Mission logs are 
to be consolidated in a Mission report for the procurement activity and 
for the nonprocurement activities maintaining such logs under the USAID 
Metric Transition Plan.) Repetitive purchases of commercially produced 
and marketed items and classes of items may be consolidated in reporting 
procurements that do not exceed $10,000 cumulatively during the 
reporting period.

[57 FR 23321, June 3, 1992, as amended at 59 FR 33446, June 29, 1994. 
Redesignated and amended at 61 FR 39091, July 26, 1996. Redesignated and 
amended at 62 FR 40467, July 29, 1997]



Sec. 711.002-71  Solicitation provisions and contract clauses.

    The contracting officer shall insert the clause at 752.211-70 in all 
USAID-direct solicitations and contracts.

[57 FR 23321, June 3, 1992. Redesignated and amended at 61 FR 39091, 
July 26, 1996]

[[Page 20]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 713_SIMPLIFIED ACQUISITION PROCEDURES

Sec.

Sec. 713.000 Scope of part.

                          Subpart 713.1_General


Sec. 713.101 Definitions.

Sec. 713.106-370 Partner vetting.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp., 
p. 435.

    Source: 61 FR 39091, July 26, 1996, unless otherwise noted.



Sec. 713.000  Scope of part.

    The simplified acquisition threshold applies to the cost of supplies 
and services, exclusive of the cost of transportation and other 
accessorial costs if their destination is outside the United States.

                          Subpart 713.1_General



Sec. 713.101  Definitions.

    Accessorial costs means the cost of getting supplies or services to 
their destination in the cooperating country (and the travel costs of 
returning personnel to the U.S. or other point of hire). It does not 
include costs such as allowances or differentials related to maintaining 
personnel at post which are to be considered as part of the base costs 
within the simplified acquisition threshold.



Sec. 713.106-370  Partner vetting.

    If an acquisition is identified as subject to vetting, see (48 CFR) 
AIDAR 704.70 for the applicable procedures and requirements.

[77 FR 8171, Feb. 14, 2012]

                         PART 714_SEALED BIDDING

           Subpart 714.4_Opening of Bids and Award of Contract

Sec.

Sec. 714.406-3 Other mistakes disclosed before award.

Sec. 714.406-4 Disclosure of mistakes after award.

Sec. 714.408-170 Partner vetting.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

           Subpart 714.4_Opening of Bids and Award of Contract



Sec. 714.406-3  Other mistakes disclosed before award.

    The M/OAA Director is the designated central authority to make the 
determinations described in FAR 14.406-3.

[49 FR 13240, Apr. 3, 1984, as amended at 54 FR 46389, Nov. 3, 1989; 64 
FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]



Sec. 714.406-4  Disclosure of mistakes after award.

    The M/OAA Director is the designated central authority to make the 
determinations described in FAR 14.406-4.

[49 FR 13240, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 714.408-170  Partner vetting.

    If an acquisition is identified as subject to vetting, see (48 CFR) 
AIDAR 704.70 for the applicable procedures and requirements.

[77 FR 8171, Feb. 14, 2012]

                   PART 715_CONTRACTING BY NEGOTIATION

                     Subpart 715.3_Source Selection

Sec.

Sec. 715.303 Responsibilities.

[[Page 21]]


Sec. 715.303-70 Responsibilities of USAID evaluation committees.

Sec. 715.305 Proposal evaluation.

Sec. 715.370 Alternative source selection procedures.

Sec. 715.370-1 Title XII selection procedure--general.

Sec. 715.370-2 Title XII selection procedure--collaborative assistance.

                   Subpart 715.6_Unsolicited Proposals


Sec. 715.602 Policy.

Sec. 715.604 Agency points of contact.

                     Subpart 715.70_Partner Vetting


Sec. 715.70 Partner vetting.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13240, Apr. 3, 1984, unless otherwise noted.

                     Subpart 715.3_Source Selection



Sec. 715.303  Responsibilities.



Sec. 715.303-70  Responsibilities of USAID evaluation committees.

    (a) Establishment and composition of USAID evaluation committees. A 
technical evaluation committee shall be established for each proposed 
procurement. In each case, the committee shall be composed of a chair 
representing the cognizant technical office, a representative of the 
contracting office (who shall be a non-voting member of the committee), 
and representatives from other concerned offices as appropriate.
    (b) Technical evaluation procedures. (1) The contracting officer 
will receive all proposals and provide to the chair a listing and copies 
of the technical proposals and instructions for conducting the 
evaluation.
    (2) The chair will promptly call a meeting of the committee to 
evaluate the proposals received. The evaluation shall be based on the 
evaluation factors set forth in the solicitation document.
    (3) The chair shall prepare and provide to the Contracting Officer 
written documentation summarizing the results of the evaluation of each 
proposal, including an assessment of past performance information in 
accordance with FAR 15.305(a)(2). The documentation shall include 
narrative justification of the evaluation results.
    (4) The contracting officer is responsible for reviewing the 
documentation justifying the evaluation results to determine that it is 
adequate and complete. The contracting officer shall return a 
justification determined to be inadequate to the chair for revision.
    (5) No member of the USAID evaluation committee shall hold 
discussions with any offeror before or during the USAID evaluation 
committee's proceedings, nor shall any information about the proposals 
be provided to anyone not on the committee without first obtaining the 
contracting officer's consent.

[61 FR 39091, July 26, 1996. Redesignated and amended at 64 FR 16648, 
Apr. 6, 1999]



Sec. 715.305  Proposal evaluation.

    (a)(1) [Reserved]
    (2) USAID shall use the information on offerors made available from 
the NIH Contractor Performance System to evaluate past performance. 
(Access to the system by USAID contracting office personnel is 
authorized by the USAID Past Performance Coordinator, E-mail address: 
AIDNET: Past [email protected]@aidw/Internet: 
[email protected].)
    (b) A justification is to be written by the Contracting Officer and 
placed in the official file to support the decision to reject all 
proposals and to cancel the procurement.
    (c) The Contracting Officer may authorize release of proposals 
outside the Government for evaluation--
    (1) When an Evaluation Assistance Contract (EAC) is required to 
provide technical advisory or other services relating to the evaluation 
of proposals; or
    (2) When an individual other than a government employee, known as a 
Non-Government Evaluator (NGE), is selected to serve as a member of a 
USAID technical evaluation committee, the Contracting Officer shall 
obtain a signed and dated certification and agreement from each NGE and 
EAC that they will safeguard the proposals and information therein and

[[Page 22]]

that they perceive no actual or potential conflict of interests. (An 
acceptable certification appears under ADS Chapter 302).

[64 FR 16648, Apr. 6, 1999; 64 FR 25405, May 11, 1999, as amended at 65 
FR 36642, June 9, 2000]



Sec. 715.370  Alternative source selection procedures.

    The following selection procedures may be used, when appropriate, 
for activities covered under Title XII of the Foreign Assistance Act of 
1961, as amended.

[64 FR 16649, Apr. 6, 1999]



Sec. 715.370-1  Title XII selection procedure--general.

    (a) General. The Deputy Administrator has determined, as provided in 
AIDAR 706.302-70(b)(3)(ii) that use of this Title XII source selection 
procedure is necessary so as not to impair or affect USAID's ability to 
administer Title XII of the Foreign Assistance Act. This determination 
is reflected in AIDAR 706.302-70(b)(4). This constitutes authority for 
other than full and open competition when selecting Title XII 
institutions to perform Title XII projects.
    (b) Scope of subsection. This subsection prescribes policies and 
procedures for the selection of institutions eligible under Title XII of 
the Foreign Assistance Act of 1961, as amended, to perform activities 
authorized under Title XII.
    (c) Applicability. The provisions of this subsection are applicable 
when the project office certifies that the activity is authorized under 
Title XII, and determines that use of the Title XII selection procedure 
is appropriate.
    (d) Solicitation, evaluation, and selection procedures. (1) 
Competition shall be sought among eligible Title XII institutions to the 
maximum practicable extent; this requirement shall be deemed satisfied 
when a contractor is selected under the procedures of this subsection.
    (2) The project office shall--
    (i) Prepare selection criteria for evaluation of eligible 
institutions for use in preparing the source list, determining 
predominantly qualified sources, and selecting the contractor;
    (ii) Prepare an initial list of eligible institutions considered 
qualified to perform the proposed activity;
    (iii) Provide a statement describing qualifications and areas of 
expertise considered essential, a statement of work, estimate of 
personnel requirements, special requirements (logistic support, 
government furnished property, and so forth) for the contracting 
officer's use in preparing the request for technical proposal (RFTP).
    (iv) Send a memorandum incorporating the certification and 
determination required by paragraph (c) of this section, together with 
the information required by paragraphs (d)(2) (i) through (iii) of this 
section, with the ``Action'' copy of the PIO/T to the contracting 
officer, requesting him/her to prepare and distribute the RFTP.
    (3) Upon receipt and acceptance of the project officer's request, 
the contracting officer shall prepare the RFTP. The RFTP shall contain 
sufficient information to enable an offeror to submit a responsive and 
complete technical proposal. This includes a definitive statement of 
work, an estimate of the personnel required, and special provisions 
(such as logistic support, government furnished equipment, and so 
forth), a proposed contract format, and evaluation criteria. No cost or 
pricing data will be requested or required by the RFTP. The RFTP will be 
distributed to the eligible institutions recommended by the project 
office. The RFTP will be synopsized, as required by FAR 5.201, and will 
normally allow a minimum of 60 days for preparation and submission of a 
proposal.
    (4) Upon receipt of responses to the RFTP by the contracting 
officer, an evaluation committee will be established as provided for in 
715.608 of this subpart.
    (5) The evaluation committee will evaluate all proposals in 
accordance with the criteria set forth in the RFTP, and will prepare a 
selection memorandum which shall:
    (i) State the evaluation criteria;
    (ii) List all of the eligible institutions whose proposals were 
reviewed;
    (iii) Report on the ranking and rationale therefor for all 
proposals;

[[Page 23]]

    (iv) Indicate the eligible institution or institutions considered 
best qualified.
    (6) The evaluation committee will submit the selection memorandum to 
the contracting officer for review and approval.
    (7) The contracting officer will either approve the selection 
memorandum, or return it to the evaluation committee for reconsideration 
for specified reasons.
    (8) If the selection memorandum is approved, the contracting officer 
shall obtain cost, pricing, and other necessary data from the 
recommended institution or institutions and shall conduct negotiations. 
If a satisfactory contract cannot be obtained, the contracting officer 
will so advise the evaluation committee. The evaluation committee may 
then recommend an alternate institution or institutions.

[52 FR 6158, Mar. 2, 1987, as amended at 54 FR 28069, July 5, 1989; 55 
FR 6802, Feb. 27, 1990. Redesignated at 64 FR 16648, Apr. 6, 1999]



Sec. 715.370-2  Title XII selection procedure--collaborative assistance.

    (a) General. (48 CFR) AIDAR 706.302-70(b)(4) provides authority for 
other than full and open competition when selecting Title XII 
institutions to perform Title XII activities.
    (b) Scope of subsection. This subsection prescribes policies and 
procedures for the selection of institutions eligible under Title XII of 
the Foreign Assistance Act of 1961, as amended, to perform activities 
authorized under Title XII, where USAID has determined, in accordance 
with paragraph (c) of this subsection, that use of the collaborative 
assistance contracting system is appropriate. See AIDR sppendix F (of 
this chapter)--Use of Collaborative Assistance Method for Title XII 
Activities for a more complete definition and discussion of the 
collaborative assistance method.
    (c) Determinations. The following findings and determinations must 
be made prior to initiating any contract actions under the collaborative 
assistance method:
    (1) The cognizant technical office makes a preliminary finding that 
an activity:
    (i) Is authorized by Title XII; and
    (ii) Should be classed as collaborative assistance because a 
continuing collaborative relationship between USAID, the host country, 
and the contractor is required from design through completion of the 
activity, and USAID, host country, and contractor participation in a 
continuing review and evaluation of the activity is essential for its 
proper execution.
    (2) Based upon this preliminary finding, the cognizant technical 
office shall establish an evaluation panel consisting of a 
representative of the cognizant technical office as chairman, a 
representative of the contracting officer, and any other representatives 
considered appropriate by the chairman to review the proposed activity 
for its appropriateness under the collaborative assistance method.
    (3) If supported by the panel's findings, the chairman will make a 
formal written determination that the collaborative assistance method is 
the appropriate contracting method for the Title XII activity in 
question.
    (d) Evaluation and selection. (1) Competition shall be sought among 
eligible Title XII institutions to the maximum practicable extent; this 
requirement shall be deemed satisfied when a contractor is selected 
under the procedures of this section.
    (2) The evaluation panel shall:
    (i) Prepare evaluation and selection criteria;
    (ii) Prepare an initial source list of eligible institutions 
considered qualified to perform the proposed project; and
    (iii) Evaluate the list, using the evaluation criteria previously 
determined, for the purpose of making a written determination of the 
sources considered most capable of performing the project.
    (3) The chairman of the evaluation panel will prepare a memorandum 
requesting the contracting officer to prepare a request for expressions 
of interest from qualified sources and setting forth:
    (i) The formal determinations required by paragraph (c) of this 
section;
    (ii) The evaluation criteria which have been determined; and
    (iii) The recommended source list and the rationale therefor.

[[Page 24]]

    (4) The contracting officer will prepare a request for an expression 
of interest (REI), containing sufficient information to permit an 
offeror to determine its interest in the project, and to discuss the 
project with USAID representatives, if appropriate. The REI should 
include a concise statement of the purpose of the activity, any special 
conditions or qualifications considered important, a brief description 
of the selection procedure and evaluation criteria which will be used, 
the proposed contract format, and any other information considered 
appropriate. The REI will be issued to the sources recommended by the 
panel, and to others, as appropriate; it will be synopsized, as required 
by FAR 5.201, and it will normally allow a minimum of 60 days for 
preparation of an expression of interest. Guidelines for preparation of 
expressions of interest are contained in attachment 1 to AIDAR appendix 
F.
    (5) The contracting officer will transmit all expressions of 
interest to the evaluation panel for evaluation and selection 
recommendation. The panel may conduct on site evaluations at its 
discretion, as part of the evaluation process.
    (6) The chairman of the evaluation panel will prepare a written 
selection recommendation with supporting justification, recommending 
that negotiations be conducted with the prospective contractor(s) 
selected by the evaluation panel. The selection recommendation shall be 
transmitted to the contracting officer together with the complete 
official file on the project which was being maintained by the 
evaluation panel.
    (7) The contracting officer will review the selection 
recommendation, obtain necessary cost and other data, and proceed to 
negotiate with the recommended sources.

[52 FR 6159, Mar. 2, 1987, as amended at 54 FR 28069, July 5, 1989; 55 
FR 6802, Feb. 27, 1990; 62 FR 40467, July 29, 1997; 62 FR 45334, Aug. 
27, 1997; 62 FR 47532, Sept. 9, 1997. Redesignated at 64 FR 16648, Apr. 
6, 1999]

                     Subpart 715.70_Partner Vetting



Sec. 715.70  Partner vetting.

    If an acquisition is identified as subject to vetting, see (48 CFR) 
AIDAR 704.70 for the applicable procedures and requirements.

[77 FR 8171, Feb. 14, 2012]

                   Subpart 715.6_Unsolicited Proposals



Sec. 715.602  Policy.

    (a) USAID encourages the submission of unsolicited proposals which 
contribute new ideas consistent with and contributing to the 
accomplishment of the Agency's objectives. However, the requirements for 
contractor resources are normally quite program specific, and thus 
widely varied, and must be responsive to host country needs. Futher, 
USAID's projects are usually designed in collaboration with the 
cooperating country. These factors can limit both the need for, and 
USAID's ability to use unsolicited proposals. Therefore, prospective 
offerors are encouraged to contact USAID to determine the Agency's 
technical and geographical requirements as related to the offeror's 
interests before preparing and submitting a formal unsolicited proposal.
    (b) USAID's basic policies and procedures regarding unsolicited 
proposals are those established in FAR subpart 15.6 and this subpart.
    (c) For detailed information on unsolicited proposals, see 715.604; 
for initial contact point within USAID, see 715.604(c).

[49 FR 13240, Apr. 3, 1984. Redesignated and amended at 64 FR 16648, 
16649, Apr. 6, 1999; 64 FR 25405, May 11, 1999]



Sec. 715.604  Agency points of contact.

    (a) Information concerning USAID's policies for unsolicited 
proposals is available from the U.S. Agency for International 
Development, Evaluation Division, Room 7.08-005, 1300 Pennsylvania 
Avenue, NW., Washington, DC 20523-7803.
    (b) The information available concerns:
    (1) Contact points within USAID;
    (2) Definitions;
    (3) Characteristics of a suitable proposal;
    (4) Determination of contractor responsibility;
    (5) Organizational conflict of interest;

[[Page 25]]

    (6) Cost sharing; and
    (7) Procedures for submission and evaluation of proposals.
    (c) Initial inquiries and subsequent unsolicited proposals should be 
submitted to the address specified in paragraph (a) of this section.

[49 FR 13240, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 52 
FR 21058, June 4, 1987; 56 FR 2699, Jan. 24, 1991; 56 FR 67224, Dec. 30, 
1991; 59 FR 33446, June 29, 1994. Redesignated and amended at 64 FR 
16648, 16649, Apr. 6, 1999]

                       PART 716_TYPES OF CONTRACTS

               Subpart 716.3_Cost Reimbursement Contracts

Sec.

Sec. 716.303 Cost-sharing contracts.

Sec. 716.306 [Reserved]

Sec. 716.406 Contract clauses.

               Subpart 716.5_Indefinite-Delivery Contracts


Sec. 716.501-270 Partner vetting--indefinite-delivery contracts.

Sec. 716.505-70 Vetting orders under indefinite delivery contracts.

Sec. 716.506 Solicitation provision and contract clause.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381) 
as amended: E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

               Subpart 716.3_Cost Reimbursement Contracts



Sec. 716.303  Cost-sharing contracts.

    (a)-(b) [Reserved]
    (c) Limitations. In addition to the limitations specified in FAR 
16.301-3, prior approval of the M/OAA Director (see 701.601(a)(1)) is 
required in order to use a cost-sharing contract with an educational 
institution.

[54 FR 46390, Nov. 3, 1989, as amended at 64 FR 42042, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 716.306  [Reserved]



Sec. 716.406  Contract clauses.

    The Contracting Officer shall include the clause at 752.216-70, 
Award Fee, in solicitations and contracts when an award-fee contract is 
contemplated.

[64 FR 5007, Feb. 2, 1999]

               Subpart 716.5_Indefinite-Delivery Contracts

    Source: 77 FR 8171, Feb. 14, 2012, unless otherwise noted.



Sec. 716.501-270  Partner vetting--indefinite-delivery contracts.

    If a task order or delivery order under an indefinite-delivery 
contract has the potential to be subject to vetting, then the contract 
itself will be subject to the applicable procedures and requirements for 
partner vetting in (48 CFR) AIDAR 704.70.



Sec. 716.505-70  Vetting orders under indefinite delivery contracts.

    (a) The task order contracting officer will specify in the request 
for task or delivery order proposals whether the order is subject to 
vetting and when awardees must submit the USAID Partner Information 
Form.
    (b) For orders under multiple award contracts, fair opportunity 
selection procedures are conducted separately from vetting. The 
contracting officer for the order must follow the ordering procedures in 
the contract to select the order awardee without knowledge of vetting-
related information, other than that the contractor has passed or not 
passed vetting.
    (c) The contracting officer may only place an order subject to 
vetting with an awardee that has passed vetting for that order.



Sec. 716.506  Solicitation provision and contract clause.

    (a) As prescribed in 48 CFR 704.7005(a), the contracting officer 
will insert the provision at 752.204-70 Partner Vetting Pre-Award 
Requirements, in solicitations for indefinite delivery contracts when 
USAID anticipates that any orders placed under the contract will be 
subject to vetting.
    (b)(1) The contracting officer will insert the clause at 752.216-71 
Partner Vetting, in those solicitations and contracts for indefinite-
delivery contracts

[[Page 26]]

that USAID identifies as subject to vetting.
    (2) The contracting officer will use the clause with its Alternate I 
when USAID determines that subcontracts at any tier for certain classes 
of supplies or services are subject to vetting.

                  PART 717_SPECIAL CONTRACTING METHODS

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

                 Subpart 717.70_Pharmaceutical Products



Sec. 717.700  General.

    Section 606(c) of the Foreign Assistance Act bars procurement by the 
Government of drug and pharmaceutical products manufactured outside the 
United States if their manufacture involves the use of or is covered by 
an unexpired U.S. patent which has not been held invalid by an 
unappealed or unappealable court decision unless the manufacture is 
expressly authorized by the patent owner. Applicable policies and 
procedures are set forth in USAID Automated Directive System Chapter 
312.

[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]

[[Page 27]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 719_SMALL BUSINESS PROGRAMS

                         Subpart 719.2_Policies

Sec.

Sec. 719.270 Small business policies.

Sec. 719.271 Agency program direction and operation.

Sec. 719.271-1 General.

Sec. 719.271-2 The USAID Office of Small and Disadvantaged Business 
          Utilization (SDB).

Sec. 719.271-3 USAID contracting officers.

Sec. 719.271-4 Heads of contracting activities.

Sec. 719.271-5 Cognizant technical officers.

Sec. 719.271-6 Small business screening procedure.

Sec. 719.271-7 Reports on procurement actions that are exempted from 
          screening.

Sec. 719.272 Small disadvantaged business policies.

 Subpart 719.273_The U.S. Agency for International Development (USAID) 
                  Mentor-Prot[eacute]g[eacute] Program


Sec. 719.273 The U.S. Agency for International Development Mentor-
          Prot[eacute]g[eacute] Program.

Sec. 719.273-1 Purpose.

Sec. 719.273-2 Definitions.

Sec. 719.273-3 Incentives for prime contractor participation.

Sec. 719.273-4 Eligibility of Mentor and Prot[eacute]g[eacute] firms.

Sec. 719.273-5 Selection of Prot[eacute]g[eacute] firms.

Sec. 719.273-6 Application process.

Sec. 719.273-7 OSDBU review of application.

Sec. 719.273-8 Developmental assistance.

Sec. 719.273-9 Obligations under the Mentor-Prot[eacute]g[eacute] 
          Program.

Sec. 719.273-10 Internal controls.

Sec. 719.273-11 Solicitation provision and contract clause.

    Authority: 42 U.S.C. 7254, 40 U.S.C. 486(c), 42 U.S.C. 2201.

    Source: 49 FR 13243, Apr. 3, 1984, unless otherwise noted.

                         Subpart 719.2_Policies



Sec. 719.270  Small business policies.

    (a) In keeping with section 602 of the Foreign Assistance Act of 
1961 (22 U.S.C. 2352), as amended, USAID shall, insofar as practicable 
and to the maximum extent consistent with the accomplishment of the 
purposes of said Act, assist United States small business to participate 
equitably in the furnishing of supplies and services for Foreign 
Assistance activities.
    (b) It is the policy of USAID to:
    (1) Fully endorse and carry out the Government's small business 
program for placing a fair proportion of its purchases and contracts for 
supplies, construction (including maintenance and repair), research and 
development, and services (including personal, professional, and 
technical services) with small business, including minority small 
business concerns; and
    (2) Increase their participation in USAID procurement.
    (c) In furtherance of this policy:
    (1) Cognizant technical officers shall make positive efforts (see 
719.271-5) to identify potentially qualified small and minority business 
firms during precontract development of activities and shall, with the 
responsible contracting officers, assure that such firms are given full 
opportunity to participate equitably;
    (2) Small business set-asides shall be made for all contracts to be 
executed in USAID/Washington which qualify for small business set-aside 
action under Part 19 of the FAR; and
    (3) Consideration shall be given in appropriate cases to the award 
of the contract to the Small Business Administration for subcontracting 
to small business firms pursuant to section 8(a) of the Small Business 
Act (15 U.S.C. 637(a)).
    (d) This program shall be implemented by all USAID/Washington 
contracting activities in order to attain these policy objectives. In 
accordance with 719.271, all USAID/Washington direct-procurement 
requirements which exceed the simplified acquisition threshold shall be 
screened for small business opportunities by the Office of Small and 
Disadvantaged Business Utilization (SDB) except those exempted by 
719.271-6(a).
    (e) Where practicable and desirable, small business and minority 
business enterprise award goals will be established for the respective 
USAID/Washington procuring activities to provide incentive for 
contracting personnel to increase awards to small firms. The

[[Page 28]]

goals will be set by SDB after consultation with the respective head of 
the contracting activity (see subsection 702.170-10).
    (f) In the event of a disagreement between SDB and the contracting 
officer concerning: (1) A recommended set-aside, or (2) a request for 
modification or withdrawal of a class or individual set-aside, complete 
documentation of the case including the reasons for disagreement shall 
be transmitted within five working days to the head of the contracting 
activity (see 719.271-6(e)) for a decision. Procurement action shall be 
suspended pending a decision.
    (g) The above suspension shall not apply where the contracting 
officer:
    (1) Certifies in writing, with supporting information, that in order 
to protect the public interest award must be made without delay;
    (2) Promptly provides a copy of said certification to SDB; and
    (3) Includes a copy of the certification in the contract file.
    (h) SDB shall be the Small Business Advisor and Minority Business 
Procurement Policy Manager for all USAID/Washington procuring 
activities.
    (i) The details on the Agency's direction and operation of the small 
business program are set forth in 719.271.
    (j) No decision rendered, or action taken, under the coverage set 
forth in 719.271 shall preclude the Small Business Administration from 
appealing directly to the USAID Administrator as provided for in part 19 
of the FAR.

[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 56 
FR 67224, Dec. 30, 1991; 61 FR 39092, July 26, 1996; 62 FR 40468, July 
29, 1997]



Sec. 719.271  Agency program direction and operation.



Sec. 719.271-1  General.

    The purpose of this section is to prescribe responsibilities and 
procedures for carrying out the small business program policy set forth 
in 219.270, and in part 19 of the FAR. Small Business concerns are 
defined in FAR subpart 19.1; in addition, small business concerns are 
concerns organized for profit. Nonprofit organizations are not 
considered small business concerns. Small disadvantaged business 
enterprises are defined in FAR subpart 19.1. Small disadvantaged 
business enterprises are included in the term ``small business'' when 
used in this subpart; specific reference to disadvantaged business 
enterprises is for added emphasis.



Sec. 719.271-2  The USAID Office of Small and Disadvantaged Business 
          Utilization (SDB).

    (a) SDB is responsible for administering, implementing, and 
coordinating the Agency's small business (including minority business 
enterprises) program.
    (b) SDB, headed by the Director SDB, who also serves as the Minority 
Business Procurement Manager, shall be specifically responsible for:
    (1) Developing policies, plans, and procedures for a coordinated 
Agency-wide small business and minority business enterprise procurement 
program;
    (2) Advising and consulting regularly with USAID/Washington 
procuring activities on all phases of their small business program, 
including, where practicable and desirable, the establishment of small 
business and minority business enterprise award goals;
    (3) Collaborating with officials of the Small Business 
Administration (SBA), other Government Agencies, and private 
organizations on matters affecting the Agency's small business program;
    (4) Developing and maintaining an USAID Consultant Registry 
Information System (ACRIS) of bidders/offerors (annotated to identify 
small business and minority business enterprise firms) capable of 
furnishing services for use by the USAID contracting activities;
    (5) Cooperating with contracting officers in administering the 
performance of contractors subject to the Small Business and Minority 
Business Enterprises Subcontracting Program clauses;
    (6) Developing a plan of operation designed to increase the share of 
contracts awarded to small business concerns, including small minority 
business enterprises;
    (7) Establishing small business class set-aside for types and 
classes of items of services where appropriate;

[[Page 29]]

    (8) Reviewing each procurement requisition to make certain 
individual or class set-asides are initiated on all suitable USAID/
Washington proposed contract actions in excess of the simplified 
acquisition threshold which are subject to screening (see 719.271-6);
    (9) Maintaining a program designed to:
    (i) Locate capable small business sources for current and future 
procurements through GSA and other methods;
    (ii) Utilize every source available to determine if an item is 
obtainable from small business; and
    (iii) Develop adequate small business competition on all appropriate 
procurements;
    (10) Taking action to assure that unnecessary qualifications, 
restrictive specifications, or other features (such as inadequate 
procurement lead time) of the programming or procurement process, which 
may prevent small business participation in the competitive process, are 
modified to permit such participation where an adequate product or 
service can be obtained;
    (11) Recommending that portions of large planned procurements or 
suitable components of end items or services be purchased separately so 
small firms may compete;
    (12) On proposed non-competitive procurements, recommending to the 
contracting officer that the procurement be made competitive when, in 
the opinion of SDB, there are small business or minority business 
enterprises believed competent to furnish the required goods or 
services, and supplying the contracting officer a list of such firms;
    (13) Assisting small business concerns with individual problems;
    (14) Promoting increased awareness by the technical staff of the 
availability of small business firms;
    (15) Making available to GSA copies of solicitations when so 
requested;
    (16) Counseling non-responsive or non-responsible small business 
bidders/offerors to help them participate more effectively in future 
solicitations; and
    (17) Examining bidders lists to make certain small business firms 
are appropriately identified and adequately represented for both 
negotiated and advertised procurements.

[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61 
FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997]



Sec. 719.271-3  USAID contracting officers.

    With respect to procurement activities within their jurisidiction, 
contracting officers are responsible for:
    (a) Being thoroughly familiar with part 19 of the FAR and this 
section dealing with the small business program;
    (b) Screening abstracts of bids and other award data to determine 
set-aside potential for future procurements;
    (c) Assuring that small business concerns and minority business 
enterprises are appropriately identified on source lists and abstracts 
of bids or proposals by an ``S'' and ``M'', respectively, or other 
appropriate symbol;
    (d) Reviewing types and classes of items and services to determine 
where small business set-asides can be applied;
    (e) Recommending that portions of large planned procurements of 
suitable components of end items or services be purchased separately so 
small firms may compete;
    (f) Making a unilateral determination for total or partial small 
business set-asides in accordance with Subpart 19.5 of the Federal 
Acquisition Regulations;
    (g) Submitting proposed procurement actions for USAID/Washington 
contracts to SDB for screening (see 719.271-6);
    (h) Taking action to assure that unnecessary qualifications, 
restrictive specifications or other features (such as inadequate 
procurement lead time) of the programming or procurement process which 
may prevent small business participation in the competitive process are 
modified to permit such participation where an adequate product or 
service can be obtained;
    (i) Prior to rendering a final decision on a proposed non-
competitive procurement action, and as part of his/her findings and 
determinations, the contracting officer shall consider the 
recommendations, if any, of SDB together

[[Page 30]]

with the latter's list of additional sources;
    (j) As appropriate, referring small business concerns, including 
small minority business enterprises, to SDB for information and advice;
    (k) Promoting increased awareness by the technical staff of the 
availability of small business concerns;
    (l) Making available to SDB copies of solicitations when requested;
    (m) Assisting SDB in counseling non-responsive or non-responsible 
small business bidders/offerors to help them to participate more 
effectively in future solicitations; and
    (n) Including the Small Business and Minority Business Enterprises 
Subcontracting Program clauses in all contracts where required by part 
19 of the FAR.

[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996; 62 
FR 40468, July 29, 1997]



Sec. 719.271-4  Heads of contracting activities.

    In order for the agency small business program to be effective, the 
active support of top management is required. The heads of the 
contracting activities shall be responsible for:
    (a) Rendering decisions in cases resulting from non-acceptances by 
their contracting officers of set-aside recommendations made by SDB;
    (b) Consulting with SDB in establishing small business and minority 
business enterprise award goals, where practicable and desirable; and
    (c) Advising cognizant technical officers of their responsibilities 
as set forth in 719.271-5.

[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]



Sec. 719.271-5  Cognizant technical officers.

    Since the procurement process starts with the establishment of a 
requirement, the actions of the cognizant technical officers can affect 
the opportunity of small business to participate equitably; therefore, 
each cognizant technical officer shall, during the formulation of 
activities which will require contractual implementation:
    (a) Consult with SDB on the availability and capabilities of small 
business firms to permit making a tentative set-aside determination 
where appropriate; and
    (b) Provide sufficient procurement lead time in the activity 
implementation schedule to allow potential small business participation.

[49 FR 13243, Apr. 3, 1984, as amended at 61 FR 39092, July 26, 1996]



Sec. 719.271-6  Small business screening procedure.

    (a) General. All USAID/Washington proposed contract actions in 
excess of the simplified acquisition threshold shall be screened by SDB, 
with the exception of:
    (1) Class set-asides and those unilaterally set-aside by contracting 
officers (719.271-3(f));
    (2) Those where the contracting officer certifies in writing that 
the public exigency will not permit the delay incident to screening 
(719.271-7(b));
    (3) ``Institution building'' contracts (contracts for development of 
a counterpart capability in the host country) with educational or 
nonprofit institutions; or collaborative assistance contracts pursuant 
to AIDAR 715.370-2.
    (4) Those involving the payment of tuition and fees for participant 
training at academic institutions; and
    (5) Personal services contract requirements (see 719.270).
    (b) Preparation of Form USAID 1410-14 (the Small Business/Minority 
Business Enterprise Procurement Review Form). (1) The contracting 
officer shall prepare the subject form in an original and 3 copies and 
forward the original and 2 copies to SDB within one working day of 
receipt by the contracting activity of a procurement requisition.
    (2) The contracting officer will attach to his/her transmittal a 
complete copy of the procurement request and a copy of the recommended 
source list as furnished by the technical office and supplemented by 
him/her.
    (3) The contracting officer shall complete blocks 2, 3, 4, 5, 9, and 
10 (when appropriate) prior to submittal to SDB.
    (c) Screening of Form USAID 1410-14 by SDB. (1) SDB will screen the 
contracting officer's recommendations on set-aside potential, small 
business subcontracting opportunities, and section 8(a) subcontracting, 
and furnish him/her with either a written concurrence

[[Page 31]]

in his/her recommendations or written counter-recommendations on the 
original and duplicate copy within five working days from receipt of the 
form from the contracting officer.
    (2) SDB will complete Blocks 1, 6, 7, 8, 11, and 12 (when 
appropriate) prior to returning the screened form to the contracting 
officer.
    (d) Concurrence or rejection procedure. (1) The contracting officer 
shall complete Block 13 upon receipt of the original and duplicate copy 
of the screened form from SDB.
    (2) If the contracting officer rejects the SDB counter-
recommendation, he/she shall return the original and duplicate forms 
with his/her written reasons for rejection to SDB within two working 
days.
    (3) Upon receipt of the contracting officer's rejection, SDB may: 
(i) accept, or (ii) appeal, the rejection. In the case of acceptance of 
the contracting officer's rejection, SDB shall annotate Block 14 when it 
renders a decision and return the original form to the contracting 
officer within two working days.
    (e) Appeal procedure. (1) When informal efforts fail to resolve the 
set-aside disagreement between the contracting officer and SDB, the 
latter official may appeal the contracting officer's decision to the 
head of the contracting activity. Such an appeal will be made within 
five working days after receipt of the contracting officer's rejection.
    (2) In the case of an appeal, SDB will send the original and 
duplicate form, with the appeal noted in Block 14, directly to the head 
of the contracting activity with its written reasons for appealing. The 
contracting officer will be notified of SDB's appeal by means of a copy 
of the written reasons for appealing.
    (3) The head of the contracting activity shall render a decision on 
the appeal (complete Block 15) within three working days after receipt 
of same and return the original to SDB and the duplicate to the 
contracting officer.

[49 FR 13243, Apr. 3, 1984, as amended at 52 FR 21058, June 4, 1987; 61 
FR 39092, July 26, 1996; 62 FR 40468, July 29, 1997; 64 FR 42042, Aug. 
3, 1999]



Sec. 719.271-7  Reports on procurement actions that are exempted from 
          screening.

    (a) Unilateral and class set-asides. The contracting officer shall 
prepare Form USAID 1410-14 as stated in 719.271-6, but forward only the 
duplicate copy with the documentation required by Block 5 of the form to 
SDB. The original will be filed in the contract file.
    (1) If, upon review of the material submitted under 719.271-7(a) 
above, SDB concludes that it would be practicable to accomplish all or a 
portion of the procurement involved under section 8(a) subcontracting, 
it shall so advise the contracting officer in writing within five days 
after receipt of such material.
    (2) Such advice shall be considered a counter-recommendation and 
shall be processed in accordance with 719.271-6 (d) and (e).
    (b) Public exigency exemption. The contracting officer shall prepare 
Form USAID 1410-14 as stated in 719.271-6, but forward only the 
duplicate copy with the documentation required by Block 5 of the form to 
SDB. In addition to the documentation called for in 719.271-6, the 
contracting officer shall furnish a copy of his/her written 
determination exempting the procurement from screening. The 
determination shall cite the pertinent facts which led to his/her 
decision. This exemption is not intended to be used as substitute for 
good procurement planning and lead-time; SDB will report abuses of this 
exemption to the head of the contracting activity for appropriate action 
in accordance with 719.271-4(c).
    (c) Institution building contract (IBC) exemption. The contracting 
officer shall prepare Form USAID 1410-14 as stated in 719.271-6, but 
forward only the duplicate copy with the documentation required by Block 
5 of the form to SDB.
    (d) Personal services contract exemption. Preparation of Form USAID 
1410-14 is not required for personal services contracts.



Sec. 719.272  Small disadvantaged business policies.

    In addition to the requirements in FAR part 19, part 726 provides 
for contracting and subcontracting with small

[[Page 32]]

disadvantaged businesses and other disadvantaged enterprises based on 
provisions of the foreign assistance appropriations acts.

[58 FR 8702, Feb. 17, 1993]

 Subpart 719.273_The U.S. Agency for International Development (USAID) 
                  Mentor-Prot[eacute]g[eacute] Program

    Source: 72 FR 32543, June 13, 2007, unless otherwise noted.



Sec. 719.273  The U.S. Agency for International Development (USAID) 
          Mentor-Prot[eacute]g[eacute] Program.



Sec. 719.273-1  Purpose.

    The USAID Mentor-Prot[eacute]g[eacute] Program is designed to assist 
small business, including veteran-owned small business, service-disabled 
veteran-owned small business, HUBZone, small socially and economically 
disadvantaged business, and women-owned small business in enhancing 
their capabilities to perform contracts and sub-contracts for USAID and 
other Federal agencies. The Mentor-Prot[eacute]g[eacute] Program is also 
designed to improve the performance of USAID contractors and 
subcontractors by providing developmental assistance to 
Prot[eacute]g[eacute] entities, fostering the establishment of long-term 
business relationships between small business and prime contractors, and 
increasing the overall number of small business that receive USAID 
contract and subcontract awards. A firm's status as a 
Prot[eacute]g[eacute] under a USAID contract shall not have an effect on 
the firm's eligibility to seek other prime contracts or subcontracts.



Sec. 719.273-2  Definitions.

    Throughout, the term ``small business'' includes all categories of 
small firms as defined by the Small Business Administration (SBA) on 
whose behalf the Office of Small and Disadvantaged Business Utilization 
(OSDBU) is chartered to advocate, including small business, small 
disadvantaged business, women-owned small business, veteran-owned and 
service-disabled veteran-owned small business and small business located 
in HUBZones, as those terms are defined in 13 CFR part 124. The 
determination of affiliation is a function of the SBA.
    (a) A ``Mentor'' is a prime contractor that elects to promote and 
develop small business subcontractors by providing developmental 
assistance designed to enhance the business success of the 
Prot[eacute]g[eacute].
    (b) ``Program'' refers to the USAID Mentor-Prot[eacute]g[eacute] 
Program as described in this Chapter.
    (c) ``Prot[eacute]g[eacute]'' means a small business, small 
disadvantaged business, women-owned small business, HUBZone small 
business, veteran-owned small business or service-disabled veteran owned 
small business that is the recipient of developmental assistance 
pursuant to a Mentor-Prot[eacute]g[eacute] Agreement.



Sec. 719.273-3  Incentives for prime contractor participation.

    (a) Under the Small Business Act, 15 U.S.C. 637(d)(4)(E), USAID is 
authorized to provide appropriate incentives to encourage subcontracting 
opportunities for small business consistent with the efficient and 
economical performance of the contract. This authority is limited to 
negotiated procurements. FAR 19.202-1 provides additional guidance.
    (b) Costs incurred by a Mentor to provide developmental assistance, 
as described in 719.273-8 to fulfill the terms of their agreement(s) 
with a Prot[eacute]g[eacute] firm(s), are not reimbursable as a direct 
cost under a USAID contract. If USAID is the mentor's responsible audit 
agency under FAR 42.703-1, USAID will consider these costs in 
determining indirect cost rates. If USAID is not the responsible audit 
agency, mentors are encouraged to enter into an advance agreement with 
their responsible audit agency on the treatment of such costs when 
determining indirect cost rates.
    (c) In addition to subparagraph (b) above, contracting officers may 
give Mentors evaluation credit under FAR 15.101-1 considerations for 
subcontracts awarded pursuant to their Mentor-Prot[eacute]g[eacute] 
Agreements and their subcontracting plans. Therefore:

[[Page 33]]

    (1) Contracting officers may evaluate subcontracting plans 
containing Mentor-Prot[eacute]g[eacute] arrangements more favorably than 
subcontracting plans without Mentor-Prot[eacute]g[eacute] Agreements.
    (2) Contracting officers may assess the prime contractor's 
compliance with the subcontracting plans submitted in previous contracts 
as a factor in evaluating past performance under FAR 15.305(a)(2)(v) and 
determining contractor responsibility 19.705-5(a)(1).
    (d) OSDBU Mentoring Award. A non-monetary award will be presented 
annually to the Mentoring firm providing the most effective 
developmental support of a Prot[eacute]g[eacute]. The Mentor-
Prot[eacute]g[eacute] Program Manager will recommend an award winner to 
the Director of the Office of Small and Disadvantaged Business 
Utilization (OSDBU).
    (e) OSDBU Mentor-Prot[eacute]g[eacute] Annual Conference. At the 
conclusion of each year in the Mentor-Prot[eacute]g[eacute] Program, 
Mentor firms will be invited to brief contracting officers, program 
leaders, office directors and other guests on Program progress.



Sec. 719.273-4  Eligibility of Mentor and Prot[eacute]g[eacute] firms.

    Eligible business entities approved as Mentors may enter into 
agreements (hereafter referred to as ``Mentor-Prot[eacute]g[eacute] 
Agreement'' or ``Agreement'' and explained in section 719.273-6) with 
eligible Prot[eacute]g[eacute]s. Mentors provide appropriate 
developmental assistance to enhance the capabilities of 
Prot[eacute]g[eacute]s to perform as contractors and/or subcontractors. 
Eligible small business entities capable of providing developmental 
assistance may be approved as Mentors. Prot[eacute]g[eacute]s may 
participate in the Program in pursuit of a prime contract or as 
subcontractors under the Mentor's prime contract with the USAID, but are 
not required to be a subcontractor to a USAID prime contractor or be a 
USAID prime contractor. Notwithstanding eligibility requirements in this 
section, USAID reserves the right to limit the number of participants in 
the Program in order to insure its effective management of the Mentor-
Prot[eacute]g[eacute] Program.
    (a) Eligibility. A Mentor:
    (1) May be either a large or small business entity;
    (2) Must be eligible for award of Government contracts;
    (3) Must be able to provide developmental assistance that will 
enhance the ability of Prot[eacute]g[eacute]s to perform as prime 
contractors or subcontractors; and
    (4) Will be encouraged to enter into arrangements with entities with 
which it has established business relationships.
    (b) Eligibility. A Prot[eacute]g[eacute]:
    (1) Must be a small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone, small socially and 
economically disadvantaged business, and women-owned small business);
    (2) Must meet the size standard corresponding to the NAICS code that 
the Mentor prime contractor believes best describes the product or 
service being acquired by the subcontract; and
    (3) Eligible for award of government contracts.
    (c) Prot[eacute]g[eacute]s may have multiple Mentors. 
Prot[eacute]g[eacute]s participating in Mentor-Prot[eacute]g[eacute] 
programs in addition to USAID's Program should maintain a system for 
preparing separate reports of Mentoring activity so that results of the 
USAID Program can be reported separately from any other agency program.
    (d) A Prot[eacute]g[eacute] firm shall self-certify to a Mentor firm 
that it meets the requirements set forth in paragraph (b) of this 
section and possess related certifications granted by the Small Business 
Administration (e.g., HUBZone, 8(a), etc.). Mentors may rely in good 
faith on written representations by potential Prot[eacute]g[eacute]s 
that they meet the specified eligibility requirements. HUBZone and small 
disadvantaged business status eligibility and documentation requirements 
are determined according to 13 CFR part 124.



Sec. 719.273-5  Selection of Prot[eacute]g[eacute] firms.

    (a) Mentor firms will be solely responsible for selecting 
Prot[eacute]g[eacute] firms. Mentors are encouraged to select from a 
broad base of small business including small disadvantaged business, 
women-owned small business, veteran-owned small business, service-
disabled veteran-owned small business, and

[[Page 34]]

HUBZone firms whose core competencies support USAID's mission.
    (b) Mentors may have multiple Prot[eacute]g[eacute]s. However, to 
preserve the integrity of the Program and assure the quality of 
developmental assistance provided to Prot[eacute]g[eacute]s, USAID 
reserves the right to limit the total number of Prot[eacute]g[eacute]s 
participating under each Mentor firm for the Mentor-
Prot[eacute]g[eacute] Program.
    (c) The selection of Prot[eacute]g[eacute] firms by Mentor firms may 
not be protested, except that any protest regarding the size or 
eligibility status of an entity selected by a Mentor shall be handled in 
accordance with the Federal Acquisition Regulation (FAR) and the Small 
Business Administration regulations.



Sec. 719.273-6  Application process.

    Entities interested in becoming a Mentor firm must apply in writing 
to the USAID Office of Small and Disadvantaged Business Utilization 
(OSDBU) by submitting form AID 321-1 (OMB Control number 0412-0574 
approved on 5/22/2007). The application shall contain the Mentor-
Prot[eacute]g[eacute] Agreement and shall be evaluated for approval. 
Evaluations will consider the nature and extent of technical and 
managerial support as well as any proposed financial assistance in the 
form of equity investment, loans, joint-venture, and traditional 
subcontracting support. The Mentor-Prot[eacute]g[eacute] Agreement must 
contain:
    (a) Names, addresses, phone numbers, and e-mail addresses (if 
available) of Mentor and Prot[eacute]g[eacute] firm(s) and a point of 
contact for both Mentor and Prot[eacute]g[eacute];
    (b) A description of the developmental assistance that will be 
provided by the Mentor to the Prot[eacute]g[eacute], including a 
description of the work or product contracted for (if any), a schedule 
for providing assistance, and criteria for evaluation of the 
Prot[eacute]g[eacute]'s developmental success;
    (c) A listing of the number and types of subcontracts to be awarded 
to the Prot[eacute]g[eacute];
    (d) Duration of the Agreement, including rights and responsibilities 
of both parties (Mentor and Prot[eacute]g[eacute]);
    (e) Termination procedures, including procedures for the parties' 
voluntary withdrawal from the Program. The Agreement shall require the 
Mentor or the Prot[eacute]g[eacute] to notify the other firm in writing 
at least 30 days in advance of its intent to voluntarily terminate the 
Agreement;
    (f) Procedures requiring the parties to notify OSDBU immediately 
upon receipt of termination notice from the other party;
    (g) A plan for accomplishing the work or product contracted for 
should the Agreement be terminated; and
    (h) Other terms and conditions, as appropriate.



Sec. 719.273-7  OSDBU review of application.

    (a) OSDBU will review the information to establish the Mentor and 
Prot[eacute]g[eacute] eligibility and to ensure that the information 
that is in section 719.273-6 is included. If the application relates to 
a specific contract, then OSDBU will consult with the responsible 
contracting officer on the adequacy of the proposed Agreement, as 
appropriate. OSDBU will complete its review no later than 30 calendar 
days after receipt of the application or after consultation with the 
contracting officer, whichever is later. Application for and enrollment 
into the Program are free and open to the public.
    (b) After OSDBU completes its review and provides written approval, 
the Mentor may execute the Agreement and implement the developmental 
assistance as provided under the Agreement. OSDBU will provide a copy of 
the Mentor-Prot[eacute]g[eacute] Agreement to the USAID contracting 
officer for any USAID contracts affected by the Agreement.
    (c) The Agreement defines the relationship between the Mentor and 
Prot[eacute]g[eacute] firms only. The Agreement itself does not create 
any privity of contract or contractual relationship between the Mentor 
and USAID nor the Prot[eacute]g[eacute] and USAID.
    (d) If the application is disapproved, the Mentor may provide 
additional information for reconsideration. OSDBU will complete review 
of any supplemental material no later than 30 days after its receipt. 
Upon finding deficiencies that USAID considers correctable, OSDBU will 
notify the Mentor

[[Page 35]]

and Prot[eacute]g[eacute] and request correction of deficiencies to be 
provided within 15 days.



Sec. 719.273-8  Developmental assistance.

    The forms of developmental assistance a Mentor can provide to a 
Prot[eacute]g[eacute] include and are not limited to the following:
    (a) Guidance relating to--
    (1) Financial management;
    (2) Organizational management;
    (3) Overall business management/planning;
    (4) Business development; and
    (5) Technical assistance.
    (b) Loans;
    (c) Rent-free use of facilities and/or equipment;
    (d) Property;
    (e) Temporary assignment of personnel to a Prot[eacute]g[eacute] for 
training; and
    (f) Any other types of permissible, mutually beneficial assistance.



Sec. 719.273-9  Obligations under the Mentor-Prot[eacute]g[eacute] 
          Program.

    (a) A Mentor or Prot[eacute]g[eacute] may voluntarily withdraw from 
the Program. However, in no event shall such withdrawal impact the 
contractual requirements under any prime contract.
    (b) Mentor and Prot[eacute]g[eacute] entities shall submit to the 
USAID Office of Small and Disadvantaged Business Utilization (OSDBU) 
annual reports on progress under the Mentor-Prot[eacute]g[eacute] 
Agreement. USAID will evaluate annual reports by considering the 
following:
    (1) Specific actions taken by the Mentor during the evaluation 
period to increase the participation of their Prot[eacute]g[eacute](s) 
as suppliers to the Federal Government and to commercial entities;
    (2) Specific actions taken by the Mentor during the evaluation 
period to develop technical and administrative expertise of a 
Prot[eacute]g[eacute] as defined in the Agreement;
    (3) The extent to which the Prot[eacute]g[eacute] has met the 
developmental objectives in the Agreement;
    (4) The extent to which the Mentor's participation in the Mentor-
Prot[eacute]g[eacute] Program impacted the Prot[eacute]g[eacute]'(s) 
ability to receive contract(s) and subcontract(s) from private firms and 
Federal agencies other than USAID; and, if deemed necessary;
    (5) Input from the Prot[eacute]g[eacute] on the nature of the 
developmental assistance provided by the Mentor.
    (c) OSDBU will submit annual reports to the relevant contracting 
officer regarding participating prime contractor(s)' performance in the 
Program.
    (d) Mentor and Prot[eacute]g[eacute] firms shall submit an 
evaluation to OSDBU at the conclusion of the mutually agreed upon 
Program period, the conclusion of the contract, or the voluntary 
withdrawal by either party from the Program, whichever comes first.



Sec. 719.273-10  Internal controls.

    (a) OSDBU will oversee the Program and will work in concert with the 
Mentor-Prot[eacute]g[eacute] Program Manager and relevant contracting 
officers to achieve Program objectives. OSDBU will establish internal 
controls as checks and balances applicable to the Program. These 
controls will include:
    (1) Reviewing and evaluating Mentor applications for validity of the 
provided information;
    (2) Reviewing annual progress reports submitted by Mentors and 
Prot[eacute]g[eacute]s on Prot[eacute]g[eacute] development to measure 
Prot[eacute]g[eacute] progress against the plan submitted in the 
approved Agreement;
    (3) Reviewing and evaluating financial reports and invoices 
submitted by the Mentor to verify that USAID is not charged by the 
Mentor for providing developmental assistance to the 
Prot[eacute]g[eacute]; and
    (4) Limiting the number of participants in the Mentor-
Prot[eacute]g[eacute] Program within a reporting period, in order to 
insure the effective management of the Program.
    (b) USAID may rescind approval of an existing Mentor-
Prot[eacute]g[eacute] Agreement if it determines that such action is in 
USAID's best interest. The rescission shall be in writing and sent to 
the Mentor and Prot[eacute]g[eacute] after approval by the Director of 
OSDBU. Rescission of an Agreement does not change the terms of any 
subcontract between the Mentor and the Prot[eacute]g[eacute].

[[Page 36]]



Sec. 719.273-11  Solicitation provision and contract clause.

    (a) The Contracting Officer shall insert the provision at AIDAR 
752.219-70 in all unrestricted solicitations exceeding $550,000 
($1,000,000 for construction) that offer subcontracting opportunities.
    (b) The Contracting Officer shall insert the clause at AIDAR 
752.219-71 in all contracts where the prime contractor has signed a 
Mentor-Prot[eacute]g[eacute] Agreement with USAID.

      PART 722_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

                   Subpart 722.1_Basic Labor Policies

Sec.

Sec. 722.103 Overtime.

Sec. 722.103-1 Definitions.

Sec. 722.103-2 Policy.

Sec. 722.103-3 [Reserved]

Sec. 722.103-4 Approvals.

Sec. 722.170 Employment of third country nationals (TCN's) and 
          cooperating country nationals (CCN's).

               Subpart 722.8_Equal Employment Opportuntity


Sec. 722.805-70 Procedures.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13246, Apr. 3, 1984, unless otherwise noted.

                   Subpart 722.1_Basic Labor Policies



Sec. 722.103  Overtime.



Sec. 722.103-1  Definitions.

    Compensatory time off means leave equal to overtime worked, which, 
unless otherwise authorized in a contract or approved by a contracting 
officer, must be taken not later than the end of the calendar month 
following that in which the overtime is worked.



Sec. 722.103-2  Policy.

    (a) Most contracts covered by this regulation call for the 
performance of professional or technical services overseas on a cost-
reimbursement basis. The compensation for employees performing such 
services is normally fixed on a monthly or annual basis, and the 
contracts usually state minimum work week hours. It is not expected that 
these employees will receive additional pay, overtime or shift premiums, 
or compensatory time off.
    (b) When the contracting officer determines it is in the best 
interests of the Government, specific provision may be made in contracts 
to permit such benefits for non-technical and non-professional employees 
serving overseas, subject to approvals to be required in the contract.

[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]



Sec. 722.103-3  [Reserved]



Sec. 722.103-4  Approvals.

    The contracting officer may make the determinations referred to in 
FAR 22.103-4.

[49 FR 13246, Apr. 3, 1984. Redesignated at 61 FR 39092, July 26, 1996]



Sec. 722.170  Employment of third country nationals (TCN's) and 
          cooperating country nationals (CCN's).

    (a) General. It is USAID policy that cooperating country nationals 
(CCN's) and third country nationals (TCN's), who are hired abroad for 
work in a cooperating country under USAID-direct contracts, generally be 
extended the same benefits, and be subject to the same restrictions as 
TCN's and CCN's employed as direct hires by the USAID Mission. 
Exceptions to this policy may be granted either by the Mission Director 
or the Assistant Administrator having program responsibility for the 
project. (TCN's and CCN's who are hired to work in the United States 
shall be extended benefits and subject to restrictions on the same basis 
as U.S. citizens who work in the United States.)
    (b) Compensation. Compensation, including merit or promotion 
increases paid to TCN's and CCN's may not, without the approval of the 
Mission Director or the Assistant Administrator having program 
responsibility for the project, exceed the prevailing compensation paid 
to personnel performing comparable work in the cooperating

[[Page 37]]

country as determined by the USAID Mission. Unless otherwise authorized 
by the Mission Director or the Assistant Administrator having program 
responsibility for the project, the compensation of such TCN and CCN 
employees shall be paid in the currency of the cooperating country.
    (c) Allowances and differentials. TCN's and CCN's, hired abroad for 
work in a cooperating country, are not eligible for allowances or 
differentials under USAID-direct contracts, unless authorized by the 
Mission Director or the Assistant Administrator having program 
responsibility for the project.
    (d) Country and security clearances. The contractor shall insure 
that the necessary clearances, including security clearances, if 
required, have been obtained for TCN and CCN employees in accordance 
with any such requirements set forth in the contract or required by the 
USAID Mission, prior to the TCN or CCN starting work under the contract.
    (e) Physical fitness. Contractors are required to insure that 
prospective TCN and CCN employees are examined prior to employment to 
determine whether the prospective employee meets the minimum physical 
requirements of the position and is free from any contagious disease.
    (f) Workweek, holidays, and leave. The workweek, holidays, and leave 
for TCN and CCN employees shall be the same as for all other employees 
of the contractor, under the terms of the contract; however, TCN and CCN 
employees are not eligible for home leave or military leave unless 
authorized by the Mission Director or the Assistant Administrator having 
program responsibility for the project.
    (g) Travel and transportation for TCN's and CCN's. Travel and 
transportation shall be provided TCN and CCN employees on the same basis 
as for all other employees of the contractor, under the terms of the 
contract.
    (h) Household effects and motor vehicles. USAID will not provide 
household effects to TCN and CCN employees; such employees may ship 
their household effects and motor vehicles to their place of employment 
on the same basis as for all other employees of the contractor, under 
the terms of the contract unless they are residents of the cooperating 
country.

               Subpart 722.8_Equal Employment Opportunity



Sec. 722.805-70  Procedures.

    (a) The procedures in this section apply, as appropriate, for all 
contracts excluding construction, which shall be handled in accordance 
with (48 CFR) FAR 22.804-2. Contracting officers are responsible for 
ensuring that the requirements of (48 CFR) FAR 22.8 and related clauses 
are met before awarding any contracts or consenting to subcontracts 
subject to these requirements.
    (b) Representations and certifications. The first step in ensuring 
compliance with these requirements is to obtain all necessary 
representations and certifications (Reps and Certs) required by FAR 
22.810. The contracting officer must review the Reps and Certs to 
determine whether they have been completed and signed as required, and 
are acceptable.
    (1) If any of these Reps and Certs are incomplete or unsigned, the 
contracting officer must request that the offeror(s) complete and sign 
them, as necessary, unless the initial evaluation of the offeror's 
proposal results in the contracting officer's concluding that the 
offeror would not, in any event, be within a competitive range 
determined in accordance with (48 CFR) FAR 15.306(c), or would not be 
selected if award is to be made without discussions. A request as 
described in this paragraph (b)(1) constitutes either a clarification 
per (48 CFR) FAR 15.306(a) (``resolving minor or clerical errors'', 
paragraph (a)(2)), or a communication before establishment of 
competitive range per (48 CFR) FAR 15.306(b), not a discussion per (48 
CFR) FAR 15.306(d).
    (2) If completed and signed Reps and Certs raise questions 
concerning the offeror's compliance with EEO requirements, or if the 
contracting officer has information from any other source which calls 
into question the offeror's eligibility for award based on this section 
and (48 CFR) FAR 22.8, the contracting officer must refer the matter to 
the cognizant regional Department of Labor Office of Federal Contract

[[Page 38]]

Compliance Programs (OFCCP) regardless of the estimated value of the 
contract; only OFCCP may make a determination of non-compliance with EEO 
requirements.
    (c) OFCCP's National Preaward Registry. If the Reps and Certs are 
complete, signed, and deemed acceptable, and the contracting officer has 
no reason to doubt their accuracy, the contracting officer must then 
consult the OFCCP's National Preaward Registry at the internet website 
in 48 CFR 22.805(a)(4) (i) to see if the offeror is listed.
    (1) If the conditions stated in FAR 22.805(a) (4) are met (including 
the contract file documentation requirement in paragraph (a)(4)(iii)), 
then the Contracting Officer does not need to take any further action in 
verifying the offeror's compliance with the requirements of this subpart 
and (48 CFR) FAR 22.8.
    (2) If the offeror does not appear in the National Preaward 
Registry, and the estimated amount of the contract or subcontract is 
expected to be under $10 million then the contracting officer may rely 
on the Reps and Certs as sufficient verification of the offeror's 
compliance.
    (3) If the offeror does not appear in the National Preaward Registry 
and the estimated amount of the contract or subcontract is $10 million 
or more, then the contracting officer must request a preaward clearance 
from the appropriate OFCCP regional office, in accordance with 48 CFR 
22.805(a). If the initial contact with OFCCP is by telephone, the 
contracting officer and OFCCP are to mutually determine what information 
is to be included in the written verification request. The contracting 
officer may need to provide the following information in addition to the 
items listed in FAR 22.805(a)(5), if so requested by the OFCCP regional 
office:
    (i) Name, title, address, and telephone number of a contract person 
for the prospective contractor;
    (ii) A description of the type of organization (university, 
nonprofit, etc.) and its ownership (private, foreign, state, etc.).
    (iii) Names and addresses of the organizations in a joint venture 
(if any).
    (iv) Type of procurement (new contract--RFP or IFB, amendment, etc.) 
and the period of the contract.
    (v) Copy of approved Reps and Certs.
    (d) In the event that OFCCP reports that the offeror is not in 
compliance, negotiations with the offeror shall be terminated.
    (e) Documentation for the contract file. Every contract file must 
contain completed and signed Reps and Certs. The file must clearly show 
that these documents have been reviewed and accepted by the contracting 
officer. If the Reps and Certs were revised to make them acceptable (see 
paragraph (b) of this section), the file must also document what changes 
were required and why, and verify that the changes were made. The 
contracting officer shall also document the OFCCP National Preaward 
Registry review (see paragraph (c)(1) of this section), and, if the 
Registry does not include the offeror:
    (1) For contracts or modifications over $10,000 but less than $10 
million, the file must contain a statement from the contracting officer 
that the contractor is considered in compliance with EEO requirements, 
and giving the basis for this statement (see paragraph (c)(2) of this 
section). This statement may be in a separate memorandum to the file or 
in the memorandum of negotiation.
    (2) For contracts or modifications of $10 million or more, the file 
must document all communications with OFCCP regarding the offeror's 
compliance. Such documentation includes copies of any written 
correspondence and a record of telephone conversations, specifying the 
name, address, and telephone number of the person contacted, a summary 
of the information presented, and any advice given by OFCCP.
    (f) Documentation in the event of non-compliance. In the event OFCCP 
determines that a prospective contractor is not in compliance, a copy of 
OFCCP's written determination, and a summary of resultant action taken 
(termination of negotiations, notification of offeror and cognizant 
technical officer, negotiation with next offeror in competitive range, 
resolicitation, etc.) will be placed in the contract file for any 
contract which may result, together with

[[Page 39]]

other records related to unsuccessful offers, and retained for at least 
six months following award.

[64 FR 5007, Feb. 2, 1999; 64 FR 18481, Apr. 14, 1999]

        PART 724_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

                Subpart 724.2_Freedom of Information Act

Sec.

Sec. 724.202 Policy.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13248, Apr. 3, 1984, unless otherwise noted.

                Subpart 724.2_Freedom of Information Act



Sec. 724.202  Policy.

    The U.S. Agency for International Development's policies concerning 
implementation of the Freedom of Information Act are codified in 22 CFR 
part 212 (USAID Regulation 12).

                      PART 725_FOREIGN ACQUISITION

                 Subpart 725.1_Buy American Act_Supplies

Sec.

Sec. 725.170 Exceptions for Foreign Assistance Act functions.

                     Subpart 725.4_Trade Agreements


Sec. 725.403 Exceptions.

             Subpart 725.70_Source, Origin, and Nationality


Sec. 725.701 General.

Sec. 725.702 Designation of authorized geographic code.

Sec. 725.703 Contractor employees.

Sec. 725.704 Source, origin and nationality requirements--Contract 
          clause.

Sec. 725.705 Local procurement--contract clause.

Sec. 725.706 Geographic source waivers.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13248, Apr. 3, 1984, unless otherwise noted.

                 Subpart 725.1_Buy American Act_Supplies



Sec. 725.170  Exceptions for Foreign Assistance Act functions.

    In addition to the exception stated in FAR 25.102 for purchases for 
use outside the United States, there is an exception for economic 
assistance functions performed under authority of the Foreign Assistance 
Act. This exception is stated in Executive Order 11223, dated May 12, 
1965 (30 FR 6635). U.S. procurement restrictions are applied by USAID, 
however, as shown elsewhere in this part. These restrictions are 
generally tighter than the Buy American Act. As a general rule, the 
tighter USAID restrictions will be used. In the case of certain 
procurements for use within the United States, the Buy American 
provision may be used instead in the interest of uniformity among 
Federal Agencies procuring for domestic use.

                     Subpart 725.4_Trade Agreements



Sec. 725.403  Exceptions.

    FAR 25.4 establishes procedures for purchases under the Trade 
Agreements Act of 1979 (including GATT's Agreement on Government 
Procurement) and the North American Free Trade Agreement (NAFTA). Under 
both such agreements, USAID's contracts for the purpose of providing 
foreign assistance are not subject to the procedures set forth in FAR 
25.4. In contrast, USAID's operating expense-type administrative 
purchases (i.e., purchases for the direct benefit and use of USAID) are 
subject to the procedures in FAR 25.4, unless otherwise exempted by one 
of the exemptions specified in FAR 25.4.

[61 FR 39093, July 26, 1996]

             Subpart 725.70_Source, Origin, and Nationality



Sec. 725.701  General.

    USAID's source, origin and nationality requirements for program-
funded contracts and subcontracts are established in 22 CFR part 228, 
Rules on Source, Origin and nationality for Commodities and Services 
Financed by USAID. These policies as they apply to

[[Page 40]]

subcontracts and purchases under USAID program-funded contracts have 
been incorporated into the contract clauses referenced in 725.704 and 
725.705 of this subpart.

[62 FR 40468, July 29, 1997]



Sec. 725.702  Designation of authorized geographic code.

    (a) The authorized geographic code or codes for an USAID contract 
shall be specified in the Schedule of each contract and shown on its 
cover page. If no geographic code is specified, the authorized code will 
be deemed to be Geographic Code 000, the U.S.
    (b) Individual country and geographic codes are defined in the 
Agency Geographic Code Book.

[49 FR 13248, Apr. 3, 1984, as amended at 61 FR 39093, July 26, 1996]



Sec. 725.703  Contractor employees.

    (a) Except as specifically provided in paragraph (b) of this 
section, there are no nationality restrictions on employees or 
consultants of either contractors or subcontractors providing services 
under an USAID-financed contract, except that they must be citizens of a 
Geographic Code 935 country, or non-U.S. citizens lawfully admitted for 
permanent residence in the U.S.
    (b) For USAID-financed construction projects where the contract is 
awarded to a U.S. firm, at least half of the supervisors, and any other 
specified key personnel, working at the project site must be U.S. 
citizens or permanent legal residents of the United States. Exceptions 
may be authorized by the Mission Director in writing if special 
circumstances make compliance impractical.

[51 FR 34985, Oct. 1, 1986]



Sec. 725.704  Source, origin and nationality requirements--Contract 
          clause.

    The clause in 752.225-70 is required in all USAID program-funded 
contracts under which the contractor may procure goods or services.

[62 FR 40468, July 29, 1997]



Sec. 725.705  Local procurement--contract clause.

    Local procurement may be undertaken in accordance with the 
provisions of 22 CFR 228.40. All contracts involving performance 
overseas shall contain the clause in 752.225-71.

[62 FR 40468, July 29, 1997]



Sec. 725.706  Geographic source waivers.

    (a) Authority to waive source, origin, nationality, and 
transportation services requirements is set forth in chapters 103 and 
310 of the ADS.
    (b) The contracting officer shall insert the authorized geographic 
code based on an approved geographic source waiver in the Schedule of 
the contract as provided for in 725.702. In addition, the contracting 
officer shall place a copy of any approved geographic source waiver in 
the official contract file.

[49 FR 13248, Apr. 3, 1984, as amended at 52 FR 4144, Feb. 10, 1987; 61 
FR 39093, July 26, 1996; 62 FR 40468, July 29, 1997]

                  PART 726_OTHER SOCIOECONOMIC PROGRAMS

            Subpart 726.70_Disadvantaged Enterprises Program

Sec.

Sec. 726.7001 Scope of subpart.

Sec. 726.7002 Definitions.

Sec. 726.7003 Policy.

Sec. 726.7004 Determination to use other than full and open competition.

Sec. 726.7005 Exceptions.

Sec. 726.7006 Determination of status as a disadvantaged enterprise.

Sec. 726.7007 Requirement for subcontracting with disadvantaged 
          enterprises.

Sec. 726.7008 Limitations on subcontracting.

   Subpart 726.71_Relocation of U.S. Businesses, Assistance to Export 
      Processing Zones, Internationally Recognized Workers' Rights


Sec. 726.7101 Policy.

Sec. 726.7102 PD 20 provision.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O.12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 55 FR 8470, Mar. 8, 1990, unless otherwise noted.

[[Page 41]]

            Subpart 726.70_Disadvantaged Enterprises Program



Sec. 726.7001  Scope of subpart.

    This subpart supplements FAR part 19 and implements the provisions 
of certain foreign assistance appropriations acts (see section 706.302-
71(a)) concerning disadvantaged enterprises which require, in general, 
that not less than ten percent of the aggregate amount made available 
for development assistance and for assistance for famine recovery and 
development in Africa shall be made available to disadvantaged 
enterprises. See part 705 and part 706 for additional provisions on 
publicizing contract actions and using other than full and open 
competition.

[58 FR 8702, Feb. 17, 1993. Redesignated and amended at 61 FR 39093, 
July 26, 1996; 62 FR 40468, July 29, 1997]



Sec. 726.7002  Definitions.

    (a) Controlled by socially and economically disadvantaged 
individuals means management and daily business are controlled by one or 
more such individuals.
    (b) Disadvantaged enterprises means U.S. organizations or 
individuals that are:
    (1) Business concerns (as defined in FAR 19.001) owned and 
controlled by socially and economically disadvantaged individuals;
    (2) Institutions designated by the Secretary of Education, pursuant 
to 34 CFR 608.2, as historically black colleges and universities;
    (3) Colleges or universities having a student body in which more 
than 40 percent of the students are Hispanic American; or
    (4) Private voluntary organizations which are controlled by 
individuals who are socially and economically disadvantaged.
    (c) Economically disadvantaged individuals has the same meaning as 
in FAR 19.001, except that the term includes women.
    (d) Owned by socially and economically disadvantaged individuals 
means at least 51 percent owned by one or more individuals who are both 
socially and economically disadvantaged, or a publicly owned business 
having at least 51 percent of its stock owned by one or more socially 
and economically disadvantaged individuals.
    (e) Small disadvantaged business means a small business concern (as 
defined in FAR 19.001) that is at least 51 percent unconditionally owned 
by one or more individuals who are both socially and economically 
disadvantaged (as defined in this section), or a publicly owned business 
that has at least 51 percent of its stock unconditionally owned by one 
or more socially and economically disadvantaged individuals (as defined 
in this section) and that has its management and daily business 
controlled by one or more such individuals.
    (f) Socially disadvantaged individuals has the same meaning as in 
FAR 19.001, except that the term includes women.

[56 FR 27209, June 13, 1991, as amended at 56 FR 52212, Oct. 18, 1991. 
Redesignated at 61 FR 39093, July 26, 1996]



Sec. 726.7003  Policy.

    USAID promotes participation in its projects by disadvantaged 
enterprises. In order to achieve the goals in foreign assistance 
appropriation acts, contracts which are to be funded from amounts made 
available from the appropriations cited in section 706.302-71(a)(1) are 
subject to the following policies:
    (a) Authority in section 8(a) of the Small Business Act (15 U.S.C. 
637(a)) shall be used to the maximum practicable extent;
    (b) Other than full and open competition in contracting with certain 
disadvantaged enterprises shall be authorized in accordance with 
706.302-71;
    (c) Subcontracting with disadvantaged enterprises shall be carried 
out in accordance with section 726.7007;
    (d) In accordance with 705.207, the Office of Small and 
Disadvantaged Business Utilization (OSDBU) shall be notified at least 
seven business days before publicizing a proposed procurement in excess 
of $100,000.

[56 FR 27209, June 13, 1991. Redesignated at 61 FR 39093, July 26, 1996, 
as amended at 62 FR 40468, July 29, 1997]

[[Page 42]]



Sec. 726.7004  Determination to use other than full and open 
          competition.

    The determinations required in order to use the authority under 
706.302-71 for other than full and open competition shall be made by the 
contracting officer in consultation with the Director of OSDBU. In the 
event of a disagreement between the contracting officer and the Director 
of OSDBU, the head of the contracting activity shall make the final 
determination.

[55 FR 8470, Mar. 8, 1990. Redesignated at 61 FR 39093, July 26, 1996.]



Sec. 726.7005  Exceptions.

    The notification requirement in 705.207 and the subcontracting 
requirement in 726.7007 are based on statutory requirement and may not 
be deviated from under the provisions of subpart 701.4. By statute, the 
Administrator or designee may determine that these requirements do not 
apply to a particular contract or category of contracts. The M/OAA 
Director has been designated to make such determinations. One such 
determination concerning subcontracting is set out in 726.7007.

[58 FR 8702, Feb. 17, 1993. Redesignated at 61 FR 39093, July 26, 1996, 
as amended at 62 FR 40468, July 29, 1997; 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 726.7006  Determination of status as a disadvantaged enterprise.

    (a) To be eligible for an award under AIDAR 706.302-71 providing for 
other than full and open competition, the contractor must qualify, as of 
both the date of submission of its offer and the date of contract award, 
as a small disadvantaged business (as defined in 726.7002), an 
historically black college or university, a college or university in 
which more than 40 percent of the students are Hispanic Americans, or a 
private voluntary organization controlled by individuals who are 
socially and economically disadvantaged. The contracting officer shall 
insert the provision at 752.226-1 in any solicitation or contract to be 
awarded under the provisions of 706.302-71.
    (b) The contracting officer shall accept an offeror's 
representations and certifications under the provisions referenced above 
that it is a small disadvantaged business unless he or she determines 
otherwise based on information contained in a challenge of the offeror's 
status by the Small Business Administration or another offeror, or 
otherwise available to the contracting officer.

[55 FR 8470, Mar. 8, 1990, as amended at 56 FR 27209, June 13, 1991. 
Redesignated at 61 FR 39093, July 26, 1996, as amended at 62 FR 40468, 
July 29, 1997]



Sec. 726.7007  Requirement for subcontracting with disadvantaged 
          enterprises.

    (a) In addition to the requirements in FAR subpart 19.7, any new 
contract or modification which constitutes new procurement (except for a 
contract or modification with a disadvantaged enterprise as defined in 
726.7002) with respect to which more than $500,000 is to be funded with 
amounts made available for development assistance or from the 
appropriations cited in section 706.302-71(a)(1) shall contain a 
provision requiring that not less than ten percent of the dollar value 
of the contract must be subcontracted to disadvantaged enterprises, 
including disadvantaged enterprises which are not small.
    (b) This requirement does not apply when the contracting officer, 
with the concurrence of the Director of OSDBU, certifies there is no 
realistic expectation of U.S. subcontracting opportunities and so 
documents the file. If the contracting officer and the Director of OSDBU 
do not agree, the determination will be made by the head of the 
contracting activity. See 726.7005 for guidance on other potential 
exceptions.
    (c) The contracting officer shall insert the clause in 752.226-2 in 
any solicitation or contract as provided in paragraph (a) of this 
section, unless exempted in accordance with the provisions of paragraph 
(b) of this section.

[55 FR 8470, Mar. 8, 1990, as amended at 56 FR 27209, June 13, 1991; 56 
FR 52213, Oct. 18, 1991; 58 FR 42255, Aug. 9, 1993. Redesignated at 61 
FR 39093, July 26, 1996, as amended at 62 FR 40468, July 29, 1997; 62 FR 
47532, Sept. 9, 1997]



Sec. 726.7008  Limitations on subcontracting.

    The contracting officer shall insert the clause at 752.226-3, 
Limitations on Subcontracting, in any solicitation and

[[Page 43]]

contract for technical assistance services which is to be awarded under 
the authority of 706.302-71.

[58 FR 42255, Aug. 9, 1993. Redesignated at 61 FR 51235, Oct. 1, 1996]

   Subpart 726.71_Relocation of U.S. Businesses, Assistance to Export 
      Processing Zones, Internationally Recognized Workers' Rights



Sec. 726.7101  Policy.

    USAID Policy Determination (PD) 20, ``Guidelines to Assure USAID 
Programs do not Result in the Loss of Jobs in the U.S.'' implemented 
statutory prohibitions on expenditure of appropriated funds. The PD 
contains a standard provision for inclusion in USAID-funded grants and 
inter-agency agreements and indicates that when the PD applies to a 
contract, appropriate provisions covering the subject matter are to be 
included. When the provisions of PD 20 do apply to a contract, the 
cognizant technical office shall provide to the contracting officer 
appropriate language tailored to the specific circumstances for the 
contract statement of work, or if applicable to the circumstances, the 
provision included in the PD (see 726.7102) may be used as a clause in 
the contract. The provision is not required in subcontracts.

[61 FR 39093, July 26, 1996]



Sec. 726.7102  PD 20 provision.

 Relocation of U.S. Businesses, Assistance to Export Processing Zones, 
          Internationally Recognized Workers' Rights (JAN 1994)

    No funds or other support provided hereunder may be used in an 
activity reasonably likely to involve the relocation or expansion 
outside of the United States of an enterprise located in the United 
States if non-U.S. production in such relocation or expansion replaces 
some or all of the production of, and reduces the number of employees 
at, said enterprise in the United States.
    No funds or other support provided hereunder may be used in an 
activity the purpose of which is the establishment or development in a 
foreign country of any export processing zone or designated area where 
the labor, environmental, tax, tariff, and safety laws of the country 
would not apply, without the prior approval of USAID.
    No funds or other support provided hereunder may be used in an 
activity which contributes to the violation of internationally 
recognized rights of workers in the recipient country, including those 
in any designated zone or area in that country.

[61 FR 39093, July 26, 1996]

[[Page 44]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 727_PATENTS, DATA, AND COPYRIGHTS

               Subpart 727.4_Rights in Data and Copyrights

Sec.

Sec. 727.404 Basic rights in data clause.

Sec. 727.409 Solicitation provisions and contract clauses.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp., 
p. 435.

    Source: 72 FR 53163, Sept. 18, 2007, unless otherwise noted.

               Subpart 727.4_Rights in Data and Copyrights



Sec. 727.404  Basic rights in data clause.

    (a) through (f) [Reserved]
    (g) When the contract includes a requirement for the contractor to 
assign copyright to the government or another party, the contracting 
officer shall incorporate (48 CFR) 752.227-14 and/or include an express 
limitation or restriction in the contract. USAID contracting officers 
will assert such a right in limited circumstances in accordance with the 
principles as stated in (48 CFR) 27.402.



Sec. 727.409  Solicitation provisions and contract clauses.

    (a) When the contracting officer incorporates (48 CFR) FAR 52.227-
14, and if the release or publication of data first produced in the 
performance of the contract may be sensitive to U.S. Government 
relations with the cooperating country, the contracting officer must use 
the clause at (48 CFR) 752.227-14.
    (b) through (m) [Reserved]
    (n) The prescriptions for provisions and clauses in (48 CFR) FAR 
27.409 apply to all USAID contracts regardless of place of performance.

                      PART 728_BONDS AND INSURANCE

                           Subpart 728.1_Bonds

Sec.

Sec. 728.105-1 Advance payment bonds.

                         Subpart 728.3_Insurance


Sec. 728.305-70 Overseas worker's compensation and war-hazard 
          insurance--waivers and USAID insurance coverage.

Sec. 728.307-2 Liability.

Sec. 728.307-70 Medical Evacuation (MEDEVAC) Services (MAR 1993).

Sec. 728.309 Contract clause for worker's compensation insurance.

Sec. 728.313 Contract clauses for insurance of transportation or 
          transportation-related services.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13249, Apr. 3, 1984, unless otherwise noted.

                           Subpart 728.1_Bonds



Sec. 728.105-1  Advance payment bonds.

    (a) Generally, advance payment bonds will not be required in 
connection with USAID contracts containing an advance payment provision. 
In lieu thereof, contracting officers will follow procedures set forth 
in FAR 32.409-3.
    (b) Whenever a contracting officer considers that an advance payment 
bond is necessary, the contracting officer will: (1) Establish a bond 
penalty that will adequately protect interests of the Government, (2) 
use the USAID Advance Payment Bond format, (3) place bond with a surety 
currently approved by the U.S. Treasury Department according to the 
latest Treasury Department Circular 570, (4) stipulate that the cost of 
the bond shall not exceed a rate of $7.50 per $1,000 per annum based on 
the penalty of the bond, without the prior written approval of the 
Office of Acquisition and Assistance, Policy Division (M/OAA/P).
    (c) Where the surety's obligation under an advance payment bond 
covers all advances made to the contractor

[[Page 45]]

during the term of the contract, no release should be issued to the 
surety until all advances made and to be made under the contract have 
been fully liquidated in accordance with the provisions of the contract, 
such as no-pay vouchers, reports of expenditures, or by refund. Where 
the surety's obligation under the bond is limited to advances made 
during a specified period of time, no release should be issued to the 
surety until all advances made and to be made during the specified 
period have been liquidated as aforesaid.

[49 FR 13249, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 55 
FR 6802, Feb. 27, 1990; 56 FR 67224, Dec. 30, 1991; 59 FR 33446, June 
29, 1994; 72 FR 19670, Apr. 19, 2007]

                         Subpart 728.3_Insurance



Sec. 728.305-70  Overseas worker's compensation and war-hazard 
          insurance--waivers and USAID insurance coverage.

    (a) Upon the recommendation of the USAID Administrator, the 
Secretary of Labor may waive the applicability of the Defense Base Act 
(DBA) with respect to any contract, subcontract, or subordinate 
contract, work location, or classification of employees. Either the 
contractor or USAID can request a waiver from coverage. Such a waiver 
can apply to any employees who are not U.S. citizens, not residents of, 
or not hired in the United States. Waivers requested by the contractor 
are submitted to the contracting officer for approval and further 
submission to the Department of Labor, which grants the waiver. 
Application for a waiver is submitted on Labor Department Form BEC 565. 
USAID has a number of blanket waivers already in effect for certain 
countries that are applicable to its direct contracts with contractors 
performing in such countries. Where such waivers are granted from 
coverage under the DBA, the waiver is conditioned on providing other 
worker's compensation coverage to employees to which the waiver applies. 
Usually this takes the form of securing worker's compensation coverage 
of the country where work will be performed or of the country of the 
employee's nationality, whichever offers greater benefits. The 
Department of Labor has granted partial blanket waivers of DBA coverage 
applicable to USAID-financed contracts performed in certain countries, 
subject to two conditions:
    (1) Employees hired in the United States by the contractor, and 
citizens or residents of the United States are to be provided DBA 
insurance coverage;
    (2) Waived employees (i.e., employees who are neither U.S. citizens 
nor U.S. resident aliens, and who were hired outside the United States) 
will be provided worker's compensation benefits as required by the laws 
of the country in which they are working or the laws of their native 
country, whichever offers greater benefits. Information as to whether a 
DBA Waiver has been obtained by USAID for a particular country may be 
obtained from the cognizant USAID contracting officer.
    (b) To assist contractors in securing insurance at minimal rates for 
the workmen's compensation insurance required under the DBA, and to 
facilitate meeting insurance requirements for such coverage, USAID, 
after open and competitive negotiation, has entered into a contract with 
an insurance carrier to provide such coverage at a specified rate. The 
terms of this contract require the insurance carrier to provide 
coverage, and the contractor to make payments to and handle its claims 
with that insurance carrier. Contracting officers are responsible for 
explaining and advising contractors of the details of securing such 
insurance.

[49 FR 13249, Apr. 3, 1984, as amended at 52 FR 4144, Feb. 10, 1987. 
Redesignated at 53 FR 50630, Dec. 16, 1988, and amended at 54 FR 16122, 
Apr. 21, 1989; 56 FR 67224, Dec. 30, 1991]



Sec. 728.307-2  Liability.

    (a)-(b) [Reserved]
    (c) Automobile liability. In order to ensure that private 
automobiles used by contractor employees stationed overseas under an 
USAID contract are properly insured, USAID has established minimum 
required coverages as a supplement to the FAR clause at 52.228-7. This 
supplemental coverage is specified in AIDAR 752.228-7, and is to be used 
in all USAID-direct contracts involving performance overseas.

[53 FR 50630, Dec. 16, 1988]

[[Page 46]]



Sec. 728.307-70  Medical Evacuation (MEDEVAC) Services (MAR 1993).

    The Contracting Officer shall insert the clause at 752.228-70 in all 
contracts which require performance by contractor employees overseas.

[59 FR 33446, June 29, 1994]



Sec. 728.309  Contract clause for worker's compensation insurance.

    (a) Because of the volume of projects performed overseas resulting 
in contracts which require worker's compensation insurance, USAID has 
contracted with an insurance carrier to provide the required insurance 
for all USAID contractors. It is therefore necessary to supplement the 
FAR clause at 52.228-3 with the additional coverage specified in AIDAR 
752.228-3. The coverage specified in AIDAR 752.228-3 shall be used in 
addition to the coverage specified in FAR 52.228-3 in all USAID-direct 
contracts involving performance overseas.

[53 FR 50630, Dec. 16, 1988]



Sec. 728.313  Contract clauses for insurance of transportation or 
          transportation-related services.

    (a) USAID is required by law to include language in all its direct 
contracts and subcontracts ensuring that all U.S. marine insurance 
companies have a fair opportunity to bid for marine insurance when such 
insurance is necessary or appropriate under the contract. USAID has 
therefore established a supplementary preface to the clause at FAR 
52.228-9. This supplementary preface is set forth in AIDAR 752.228-9, 
and is required for use in any USAID-direct contract where marine 
insurance is necessary or appropriate.

[53 FR 50630, Dec. 16, 1988]

            PART 731_CONTRACT COST PRINCIPLES AND PROCEDURES

                       Subpart 731.1_Applicability

Sec.

Sec. 731.109 Advance agreements.

          Subpart 731.2_Contracts With Commercial Organizations


Sec. 731.205-6 Compensation for personal services.

Sec. 731.205-46 Travel costs.

Sec. 731.205-70 Overseas recruitment incentive.

Sec. 731.205-71 Salary supplements for Host Government employees.

          Subpart 731.3_Contracts With Educational Institutions


Sec. 731.370 Predetermined fixed rates for indirect costs.

Sec. 731.371 Compensation for personal services.

Sec. 731.372 Fringe benefits.

Sec. 731.373 Overseas recruitment incentive.

          Subpart 731.7_Contracts With Nonprofit Organizations


Sec. 731.770 OMB Circular A-122; cost principles for nonprofit 
          organizations; USAID implementation.

Sec. 731.771 Bid and proposal costs.

Sec. 731.772 Compensation for personal services.

Sec. 731.773 Independent research and development costs.

Sec. 731.774 Overseas recruitment incentive.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13250, Apr. 3, 1984, unless otherwise noted.

                       Subpart 731.1_Applicability



Sec. 731.109  Advance agreements.

    Advance agreements on selected costs may be negotiated with USAID 
contractors by the Overhead and Special Cost and Contract Close-Out 
Branch, Office of Acquisition and Assistance. Such advance 
understandings will be applicable to all USAID contracts with that 
contractor.

[49 FR 13250, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 51 
FR 20651, June 6, 1986; 72 FR 19670, Apr. 19, 2007]

          Subpart 731.2_Contracts With Commercial Organizations



Sec. 731.205-6  Compensation for personal services.

    (a) General. When establishing the workweek for employees overseas 
the contractor will take local and USAID Mission practice into account 
and will insure that the workweek is compatible with that of those USAID 
Mission and Cooperating Country employees with whom the contractor will 
be working.

[[Page 47]]

    (b) Salaries and wages. It is USAID policy that if an employee's 
base salary plus overseas recruitment incentive, if any (see AIDAR 
731.205-70) exceeds the USAID Contractor Salary Threshold (USAID CST), 
as stated in USAID's Automated Directives System (ADS) Chapter 302 USAID 
Direct Contracting (available at http://www.usaid.gov/policy/ads/300/
302.pdf), it will be allowable only if approved in writing by the 
contracting officer. The contracting officer shall only provide such 
approval after internal Agency procedures for review/approval of 
salaries in excess of the USAID CST in ADS 302 have been followed. USAID 
policies on compensation of third country national or cooperating 
country national employees are set forth in AIDAR 722.170.
    (d)-(l) [Reserved]
    (m) Fringe benefits. USAID's policies on certain fringe benefits 
related to overseas service, including but not limited to leave, 
holidays, differentials and allowances, etc. are set forth in the 
appropriate contract clauses in AIDAR subpart 752.70.

[57 FR 5235, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995; 62 
FR 40468, July 29, 1997; 64 FR 5008, Feb. 2, 1999; 72 FR 19669, Apr. 19, 
2007]



Sec. 731.205-46  Travel costs.

    It is USAID policy to require prior written approval of 
international travel by the Contacting Officer. See AIDAR 752.7032 for 
specific requirements and procedures.

[57 FR 5236, Feb. 13, 1992]



Sec. 731.205-70  Overseas recruitment incentive.

    Note: the term employee as used in this section means an employee 
who is a U.S. citizen or a U.S. resident alien.)

    (a) If a contractor employee serving overseas under a contract does 
not qualify for the exemption for overseas income provided under section 
911 of the U.S. Internal Revenue Code (26 U.S.C. 911), such employee is 
eligible to receive an overseas recruitment incentive (ORI), to the 
extent the ORI: Is authorized by the contractor's normal policy and 
practice; is deemed necessary by the contractor to recruit and retain 
qualified employees for overseas services; and does not exceed 10% of 
the base salary of the employee from date of arrival at overseas post to 
begin assignment to date of departure from post at the end of 
assignment. ORI is to be paid as a single payment at the end of the 
employee tour of duty overseas. The contractor shall take all reasonable 
and prudent steps to ensure that ORI is not paid to any employee who has 
received the IRS section 911 exemption.
    (b) In the event that an employee subsequently receives a section 
911 exclusion for any part of the base salary upon which this supplement 
has been paid, such supplement or appropriate portion thereof shall be 
reimbursed by the contractor to USAID with interest. The interest shall 
be calculated at the average U.S. Treasury rate in effect for the period 
that the contractor or his employee had the funds. Neither the 
contractor's nor the subcontractor's inability to collect refunds from 
eligible employees shall be used as a basis to excuse subsequent refunds 
by the contractor to USAID.

[57 FR 5236, Feb. 13, 1992]



Sec. 731.205-71  Salary supplements for Host Government employees.

    (a) Definitions. (1) A Host Government (HG) employee is a person 
paid by the HG, occupying an established position, either temporary or 
permanent, part-time or full-time, within a HG institution.
    (2) An HG institution is an organization in which the government 
owns at least a fifty percent share or receives at least fifty percent 
of its financial support from the government.
    (b) General. Salary supplement occurs when payments are made that 
augment an HG employee's base salary or premiums, overtime, extra 
payments, incentive payment and allowances for which the HG employee 
would qualify under HG rules or practices for the performance of his/
hers regular duties or work performed during his/hers regular office 
hours. Per diem, invitational travel, honoraria and payment for work 
carried out outside of normal working hours are not considered to be 
salary supplements subject to the provisions in USAID policy referenced 
in paragraph (c) of this section.

[[Page 48]]

    (c) Salary supplements are eligible for USAID financing only when 
authorized in accordance with USAID policy established in the cable 
State 119780 dated April 15, 1988 (on ADS-CD under USAID Handbooks, 
Handbook 1). If salary supplements have been authorized in a particular 
case, the Contracting Officer shall provide written approval to the 
contractor in order for such costs to be eligible. Any specific 
requirements or limitations shall be specified in the approval.
    (d) Contracting Officers shall insert the Clause at 752.231-71 in 
all contracts in which there is a possibility of the need of HG 
employees. It should also be inserted in all subsequent subcontracts.

[64 FR 16649, Apr. 6, 1999]

          Subpart 731.3_Contracts With Educational Institutions



Sec. 731.370  Predetermined fixed rates for indirect costs.

    Section 635(k) of the Foreign Assistance Act of 1961, as amended, 
authorizes USAID to use predetermined fixed rates in determining the 
indirect costs applicable under contracts with educational institutions.



Sec. 731.371  Compensation for personal services.

    (a) General. When establishing the workweek for employees overseas 
the contractor will take local and USAID Mission practice into account 
and will ensure that the workweek is compatible with that of those USAID 
Mission and Cooperating Country employees with whom the contractor will 
be working.
    (b) Salaries and wages. (1) The policies set forth in AIDAR 731.205-
6(b) are also applicable to contracts with a nonprofit organization.
    (2) In considering consulting income as a factor when determining 
allowable salary for service under a contract:
    (i) For faculty members working under annual appointments, salary 
for service under the contract may include the employee's on-campus 
salary plus ``consulting income'' (that is, income from employment other 
than the employee's regular on-campus appointment, excluding business or 
other activities not connected with the employee's profession) earned 
during the year preceding employment under the contract.
    (ii) For faculty members working under academic year appointments, 
salary for service under the contract may include the employee's on-
campus academic year salary plus ``consulting income'' as defined above 
earned during the year proceeding employment under the contract, or 
salary for service under the contract may be derived by annualizing the 
academic year salary (in which case ``consulting income'' may not be 
included).
    (3) USAID policies and compensation of third country national or 
cooperating country national employees are set forth in AIDAR 722.170.

[57 FR 5236, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995; 62 
FR 40469, July 29, 1997; 64 FR 5008, Feb. 2, 1999; 72 FR 19669, Apr. 19, 
2007]



Sec. 731.372  Fringe benefits.

    USAID's policies on certain fringe benefits related to overseas 
service, including but not limited to leave, holidays, differentials and 
allowances, etc. are set forth in the appropriate contract clauses in 
AIDAR 752.70.

[57 FR 5236, Feb. 13, 1992]



Sec. 731.373  Overseas recruitment incentive.

    USAID's policies regarding overseas recruitment incentives are set 
forth in AIDAR 731.205-70. These policies are also applicable to 
contracts with an educational institution.

[57 FR 5236, Feb. 13, 1992]

          Subpart 731.7_Contracts With Nonprofit Organizations



Sec. 731.770  OMB Circular A-122, cost principles for nonprofit 
          organizations; USAID implementation.

    (a) Paragraph 6 of the transmittal letter for OMB Circular A-122 
specifies that ``Agencies shall designate a liaison official to serve as 
the agency representative on matters relating to the implementation of 
this Circular.'' The Director, Office of Acquisition and Assistance, has 
been so designated. The

[[Page 49]]

Overhead and Special Cost and Contract Close-Out Branch, Office of 
Acquisition and Assistance (OCC) provides staff assistance to the 
Director concerning OMB Circular A-122. OCC is also responsible for 
obtaining cognizance under the criteria in the transmittal letter for 
OMB Circular A-122; for liaison with other cognizant agencies; for 
authorizing exclusion of OMB Circular A-122 coverage for a particular 
nonprofit organization pursuant to paragraph 5 of the OMB Circular A-122 
transmittal letter; and for advice and assistance in applying OMB 
Circular A-122 cost principles.
    (b) Paragraph 4b of the OMB Circular A-122 transmittal letter 
contains a definition of prior approval as follows:

    Prior approval means securing the awarding agency's permission in 
advance to incur costs for those items that are designated as requiring 
prior approval by OMB Circular A-122. Generally, this permission will be 
in writing. Where an item of cost requiring prior approval is specified 
in the budget of an award, approval of the budget constitute approval of 
that cost.


Consequently, an award containing a budget constitutes prior approval of 
the direct cost item in the budget, unless otherwise annotated. 
Accordingly, award budgets should be appropriately annotated 
substantially as follows:

    Inclusion of any cost in the line item budget of this award does not 
obviate the requirement for prior approval of cost items designated as 
requiring prior approval by OMB Circular A-122 ; or
    In accordance with the requirements to OMB Circular No. A-122, 
approval is granted to incur costs for (name specific item or items) 
which are included in the budget of this award.

[49 FR 13250, Apr. 3, 1984, as amended at 50 FR 50302, Dec. 10, 1985; 51 
FR 20651, June 6, 1986; 56 FR 67225, Dec. 30, 1991; 72 FR 19670, Apr. 
19, 2007]



Sec. 731.771  Bid and proposal costs.

    Pending the establishment of Government-wide principles in 
Attachment B of OMB Circular A-122, USAID will treat bid and proposal 
costs as follows:
    (a) Bid and proposal costs are the costs of preparing bids, 
proposals, and applications for potential activities such as Government 
and non-Government grants, contracts and other agreements, including the 
development of scientific, cost, and other data needed to support such 
bids, proposals, and applications. Except as provided in (b) below, bid 
and proposal costs of the current accounting period of both successful 
and unsuccessful bids and proposals normally should be treated as 
indirect costs for allocation to all current activities, and no bid and 
proposal costs of past accounting periods will be allocable to the 
current period. However, if the organization's established practice is 
to treat bid and proposal costs by some other method, the results 
obtained may be accepted only if found to be reasonable and equitable.
    (b) Bid and proposal costs incurred by the organization to obtain 
unrestricted funds are to be treated as fund raising and allocated an 
appropriate share of indirect costs under the conditions described in 
paragraph B.3 of Attachment A to OMB Circular A-122.



Sec. 731.772  Compensation for personal services.

    The policies set for in AIDAR 731.205-6 are also applicable to 
contracts with a nonprofit organization.

[57 FR 5236, Feb. 13, 1992]



Sec. 731.773  Independent research and development costs.

    Pending establishment of Government-wide principles in Attachment B 
of OMB Circular A-122, USAID will apply the cost principles at FAR 
31.205-18 for independent research and development costs.



Sec. 731.774  Overseas recruitment incentive.

    USAID's policies regarding overseas recruitment incentives are set 
forth in AIDAR 731.205-70. These policies are also applicable to 
contracts with a nonprofit organization.

[57 FR 5236, Feb. 13, 1992]

                       PART 732_CONTRACT FINANCING

                          Subpart 732.1_General

Sec.

Sec. 732.111 Contract clauses.

                     Subpart 732.4_Advance Payments


Sec. 732.401 Statutory authority.

[[Page 50]]


Sec. 732.402 General.

Sec. 732.403 Applicability.

Sec. 732.406-70 Agency-issued letters of credit.

Sec. 732.406-71 Circumstances for use of an LOC.

Sec. 732.406-72 Establishing an LOC.

Sec. 732.406-73 LOC contract clause.

Sec. 732.406-74 Revocation of the LOC.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

                          Subpart 732.1_General



Sec. 732.111  Contract clauses.

    (a) [Reserved]
    (b) USAID may obtain short term and (less frequently) long-term 
indefinite quantity professional services through Agency-specific 
indefinite quantity contracts that are a combination of contract types. 
Rather than using the fixed-price payment clauses for indefinite 
quantity contracts, when these IQCs provide for fixed daily rates (which 
may include wages, overhead, general and administrative expenses, fringe 
benefits, and profit) for services and reimbursement of other direct 
costs (such as travel and transportation) at cost, then the payment 
clause at 752.232-7 shall be used in the contract.

[61 FR 39094, July 26, 1996]

                     Subpart 732.4_Advance Payments

    Source: 56 FR 67225, Dec. 30, 1991, unless otherwise noted.



Sec. 732.401  Statutory authority.

    (a) Sections 635 (b) of the Foreign Assistance Act and Executive 
Order 11223, May 12, 1965, 30 FR 6635, permit the making of advance 
payments with respect to functions authorized by the Foreign Assistance 
Act. Advance payments may also be made under section 305 of the Federal 
Property and Administrative Services Act of 1949, which provides 
authority, not otherwise available to USAID, to take a paramount lien.
    (b) The Act of August 28, 1968, Public Law 85-804 does not apply to 
USAID.

[56 FR 67225, Dec. 30, 1991, as amended at 62 FR 40469, July 29, 1997]



Sec. 732.402  General.

    (a)-(d) [Reserved]
    (e)(1) U.S. Dollar advances to for-profit organizations, including 
advances for disbursement to grantees, shall be processed and approved 
in accordance with ADS 583.5.6b.
    (2) All local currency advances to for-profit organizations require 
the approval of the Head of the Contracting Activity, after consultation 
with the Mission Controller.

[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996; 
64 FR 5008, Feb. 2, 1999; 64 FR 42042, Aug. 3, 1999]



Sec. 732.403  Applicability.

    References to nonprofit contracts with nonprofit educational or 
research institutions for experimental, research and development work 
include nonprofit contracts with nonprofit institutions for: (a) 
technical assistance services provided to or for another country or 
countries, and (b) projects which concern studies, demonstrations and 
similar activities related to economic growth or the solution of social 
problems of developing countries.



Sec. 732.406-70  Agency-issued letters of credit.

    This subsection provides guidance on use of USAID issued letters of 
credit (LOC) for advance payments.



Sec. 732.406-71  Circumstances for use of an LOC.

    An LOC shall be used under the following circumstances:
    (a) The contracting officer has determined that an advance payment 
is necessary and appropriate in accordance with this subpart and the 
guidance provided in FAR 32.4;
    (b) USAID has, or expects to have, a continuing relationship of at 
least one year with the organization, and the annual amount required for 
advance financing will be at least $50,000; and
    (c) The Office of Financial Management, Cash Management and Payment 
Division (FM/CMP) agrees that the LOC payment method is appropriate.

[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996]

[[Page 51]]



Sec. 732.406-72  Establishing an LOC.

    (a) While the contract will provide for the use of an LOC when it is 
justified under subsection 732.406-71, the LOC is a separate agreement 
between the contractor and FM/CMP, acting on behalf of the USAID 
Controller. The terms and conditions of the LOC are established by FM/
CMP/GIB.
    (b) In order to establish or amend an LOC, the contracting officer 
shall provide FM/CMP with the following information:
    (1) The name of the Contractor;
    (2) The official USAID contract number;
    (3) The obligated amount of the contract;
    (4) The budget plan code for the obligated funds;
    (5) The effective date and estimated completion date.
    (6) The contractor Federal Tax Identification Number.
    This information should be provided in writing to FM/CMP together 
with a request to establish or amend an LOC as early in the negotiation 
cycle as possible.
    (c) FM/CMP will prepare the LOC in accordance with USAID's LOC 
procedures; issue or amend and maintain the LOC in accordance with its 
terms and USAID procedures and regulations; and provide the contracting 
officer(s) a copy of each LOC and any other material governing its use 
at the time the LOC is issued or when it is amended or modified.

[56 FR 67225, Dec. 30, 1991, as amended at 61 FR 39093, July 26, 1996; 
64 FR 42042, Aug. 3, 1999]



Sec. 732.406-73  LOC contract clause.

    (a) If payment is to be provided by LOC, the contract shall contain 
the clause in subsection 752.232-70.
    (b) Contracting offices shall ensure that an appropriate (48 CFR) 
FAR payment clause is also included in the contract, in the event that 
the LOC is revoked pursuant to 732.406-74.

[56 FR 67225, Dec. 30, 1991, as amended at 64 FR 5008, Feb. 2, 1999]



Sec. 732.406-74  Revocation of the LOC.

    If during the term of the contract FM/CMP believes that the LOC 
should be revoked, FM/CMP may, after consultation with the cognizant 
contracting officer(s) and GC, revoke the LOC by written notification to 
the contractor. A copy of any such revocation notice will immediately be 
provided to the cognizant contracting officer(s).

                PART 733_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 733.1_Protests

Sec.

Sec. 733.101 Definitions.

Sec. 733.103-70 Protests to the agency.

Sec. 733.103-71 Filing of protest.

Sec. 733.103-72 Responsibilities.

Sec. 733.103-73 Protests excluded from consideration.

        Subpart 733.27_USAID Procedures for Disputes and Appeals


Sec. 733.270-1 Designation of Armed Services Board of Contract Appeals 
          (ASBCA) to hear and determine appeals under USAID contracts.

Sec. 733.270-2 Special procedures regarding contract disputes appeals 
          promulgated pursuant to paragraph 2 of the Administrator's 
          designation.

    Authority: Sec. 621. Pub. L. 87-195, 73 Stat. 445 (22 U.S.C. 2381), 
as amended: E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp. 
p. 435.

                         Subpart 733.1_Protests

    Source: 61 FR 39094, July 26, 1996, unless otherwise noted.



Sec. 733.101  Definitions.

    (a) All ``days'' referred to in this subpart are deemed to be 
``calendar days'', in accordance with FAR 33.101. In the case of USAID 
overseas offices with non-Saturday/Sunday weekend schedules, the 
official post weekend applies in lieu of Saturday and Sunday.
    (b) All other terms defined in FAR 33.101 are used herein with the 
same meaning.

[61 FR 39094, July 26, 1996, as amended at 64 FR 42042, Aug. 3, 1999]



Sec. 733.103-70  Protests to the agency.

    USAID follows the agency protest procedures in FAR 33.103, as 
supplemented by this section.

[[Page 52]]



Sec. 733.103-71  Filing of protest.

    (a) Protests must be in writing and addressed to the Contracting 
Officer for consideration by the M/OAA Director.
    (b) A protest shall include, in addition to the information required 
in FAR 33.103(d)(2), the name of the issuing Mission or office.
    (c) Material submitted by a protester will not be withheld from any 
interested party outside the government or from any government agency if 
the M/OAA Director decides to release such material, except to the 
extent that the withholding of such information is permitted or required 
by law or regulation.

[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996, as amended at 64 
FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]



Sec. 733.103-72  Responsibilities.

    (a) M/OAA Director. The decision regarding an agency protest shall 
be made by the M/OAA Director within 30 days from the date a proper 
protest is filed unless the M/OAA Director determines that a longer 
period is necessary to resolve the protest, and so notifies the 
protester in writing. The M/OAA Director shall make his or her decision 
after personally reviewing and considering all aspects of the case as 
presented in the protest itself and in any documentation provided by the 
contracting officer, and after obtaining input and clearance from the 
Assistant General Counsel for Litigation and Enforcement (GC/LE). The 
decision shall be in writing and constitutes the final decision of the 
Agency.
    (b) Contracting Officer. The Contracting Officer is responsible for 
requesting an extension of the time for acceptance of offers as 
described in FAR 33.103(f)(2).

[61 FR 39094, July 26, 1996; 61 FR 51235, Oct. 1, 1996, as amended at 64 
FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 19, 2007]



Sec. 733.103-73  Protests excluded from consideration.

    (a) Contract administration. Disputes between a contractor and USAID 
are resolved pursuant to the disputes clause of the contract and the 
Contract Disputes Act of 1978.
    (b) Small business size standards and standard industrial 
classification. Challenges of established size standards or the size 
status of particular firms, and challenges of the selected standard 
industrial classification are for review solely by the Small Business 
Administration.
    (c) Procurement under Section 8(a) of the Small Business Act. 
Contracts are let under Section 8(a) of the Small Business Act to the 
Small Business Administration solely at the discretion of the 
Contracting Officer, and are not subject to review.
    (d) Protests filed in the General Accounting Office (GAO). Protests 
filed with the GAO will not be reviewed.
    (e) Procurements funded by USAID to which USAID is not a party. No 
protest of a procurement funded by USAID shall be reviewed unless USAID 
is a party to the acquisition agreement.
    (f) Subcontractor protests. Subcontractor protests will not be 
considered.
    (g) Judicial proceedings. Protests will not be considered when the 
matter involved is the subject of litigation before a court of competent 
jurisdiction or when the matter involved has been decided on the merits 
by a court of competent jurisdiction.
    (h) Determinations of responsibility by the contracting officer. A 
determination by the contracting officer that a bidder or offeror is or 
is not capable of performing a contract will not be reviewed by the M/
OAA Director.
    (i) Small Business Certificate of Competency Program. Any referral 
made to the Small Business Administration pursuant to section 8(b)(7) of 
the Small Business Act, or any issuance of, or refusal to issue, a 
certificate of competency under that section will not be reviewed by the 
M/OAA Director.

[61 FR 39094, July 26, 1996, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]

        Subpart 733.27_USAID Procedures for Disputes and Appeals



Sec. 733.270-1  Designation of Armed Services Board of Contract Appeals 
          (ASBCA) to hear and determine appeals under USAID contracts.

    (a) The ASBCA is hereby designated the authorized representative of 
the

[[Page 53]]

Administrator of the U.S. Agency for International Development (USAID) 
in hearing, considering, and determining as fully and finally as might 
the Administrator, appeals by contractors from decisions on disputed 
questions taken pursuant to the provisions of contracts requiring the 
determination of such appeals by the Administrator or his/her duly 
authorized representative or Board.
    (b) In acting under this designation, the ASBCA will follow such 
rules and procedures as are or may be prescribed for the conduct of 
Defense Department contract appeal cases, except for the rules entitled 
``Forwarding of Appeals'' (Rule 3) and ``Duties of the Contracting 
Officer'' (Rule 4), which subjects will be governed by procedures to be 
promulgated by the General Counsel of USAID with approval of the 
Chairman of the ASBCA.
    (c) The General Counsel of USAID will assure representation of the 
interests of the Government in proceedings before the ASBCA.
    (d) All officers and employees of USAID will cooperate with the 
ASBCA and Government counsel in the processing of appeals so as to 
assure their speedy and just determination.

[53 FR 4980, Feb. 19, 1988. Redesignated at 61 FR 39095, July 26, 1996; 
61 FR 51235, Oct. 1, 1996]



Sec. 733.270-2  Special procedures regarding contract disputes appeals 
          promulgated pursuant to paragraph 2 of the Administrator's 
          designation.

    (a) The following rules will apply, in lieu of Rules 3 and 4(a) of 
the ASBCA, to contract dispute appeals to the Administrator of the USAID 
or his/her authorized representative which are docketed with that Board.
    (b) Rule 3 (USAID)--Forwarding of Appeals. When a notice of appeal 
in any form has been received by the contracting officer, he/she shall 
endorse thereon the date of mailing (or date of receipt, if otherwise 
conveyed) and within 10 days shall forward said notice of appeal to the 
Board with a copy to the USAID General Counsel in Washington, DC. 
Following receipt by the Board of the original notice of an appeal 
(whether through the contracting officer or otherwise), the contractor, 
the contracting officer, and the USAID General Counsel will be promptly 
advised of its receipt, and the contractor will be furnished a copy of 
these rules.
    (c) Rule 4 (USAID). Preparation, Contents, Organization, Forwarding, 
and Status of Appeal File (Supersedes Rule 4, ``Duties of Contracting 
Officer'' of the ASBCA rules in effect on April 1, 1980).
    (d) Duties of contracting officer. Within 30 days of receipt of an 
appeal or advice that an appeal has been filed, the contracting officer 
shall assemble and transmit to the USAID General Counsel in Washington, 
DC, two copies of all documents pertinent to the appeal, including:
    (1) The decision and findings of fact from which appeal is taken;
    (2) The contract, including specifications and pertinent amendments, 
plans and drawings;
    (3) All correspondence between the parties pertinent to the appeal, 
including the letter or letters of claim in response to which the 
decision was issued;
    (4) All transcripts of any testimony taken during the course of 
proceedings, and affidavits or statements of any witnesses on the matter 
in dispute made prior to the filing of the notice of appeal with the 
Board; and
    (5) Any additional information considered pertinent.
    (e) The General Counsel will compile the appeal file from such 
documents, which file must contain the items enumerated in paragraphs 
(d) (1) through (5) of this section and will promptly, and in any event 
within 65 days after the appeal is docketed by the Board, transmit the 
appeal file to the Board. The General Counsel will notify the appellant 
when he/she has compiled the appeal file, will provide him/her with a 
list of its contents, and will afford him/her an opportunity to examine 
the complete file at the office of the Board and, if the General Counsel 
deems it appropriate, at any overseas location, for the purpose of 
satisfying himself/herself as to the contents, and furnishing or 
suggesting any additional documentation deemed pertinent to the appeal. 
After receipt of the foregoing file, as it may be augmented at

[[Page 54]]

the time of receipt, the Board will promptly advise the parties.

[53 FR 4980, Feb. 19, 1988. Redesignated at 61 FR 39095, July 26, 1996; 
61 FR 51235, Oct. 1, 1996; 62 FR 40469, July 29, 1997]

[[Page 55]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                    PART 734_MAJOR SYSTEM ACQUISITION

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp., 
p. 435.



Sec. 734.002-70  USAID policy.

    In order for an USAID acquisition to be considered a major system 
acquisition it must meet the criteria of OMB Circular A-109 and FAR part 
34, and must have an estimated value of $15 million or more during the 
first year of the contract. All major systems acquisition must be 
approved in advance by the M/OAA Director.

[55 FR 39976, Oct. 1, 1990, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]

         PART 736_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

                Subpart 736.6_Architect-Engineer Services

Sec.

Sec. 736.602-2 Evaluation boards.

Sec. 736.602-3 Evaluation board functions.

Sec. 736.602-4 Selection authority.

Sec. 736.602-5 Short selection process for procurements not to exceed 
          the simplified acquisition threshold.

Sec. 736.603 Collecting data on and appraising firms' qualifications.

Sec. 736.605 Government cost estimate for architect-engineer work.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13254, Apr. 3, 1984, unless otherwise noted.

                Subpart 736.6_Architect-Engineer Services



Sec. 736.602-2  Evaluation boards.

    (a)-(b) [Reserved]
    (c) Each evaluation board will include a representative of the 
Contracting Officer and, as appropriate, the cognizant bureau.

[54 FR 46391, Nov. 3, 1989]



Sec. 736.602-3  Evaluation board functions.

    Agency architect-engineer evaluation boards shall perform the 
following functions:
    (a) Prepare a selection memorandum recommending no less than three 
firms which are considered most highly qualified to perform the required 
services for submission to the head of the contracting activity for his/
her approval. This selection memorandum shall include the information 
specified in 736.602-3(c).
    (b) In evaluating architect-engineer firms, the architect-engineer 
evaluation board shall apply the following criteria, other criteria 
established by Agency regulations, and any criteria set forth in the 
public notice on a particular contract:
    (1) Specialized experience of the firm (including each member of 
joint venture or association) with the type of service required;
    (2) Capacity of the firm to perform the work (including any 
specialized services) within the time limitations;
    (3) Past record of performance on contracts with USAID or other 
Government agencies and private industry with respect to such factors as 
control of costs, quality of work, and ability to meet schedules, to the 
extent such information is available;
    (4) Ability to assign an adequate number of qualified key personnel 
from the organization, including a competent supervising representative 
having considerable experience in responsible positions on work of a 
similar nature;
    (5) The portions of the work the architect-engineer is able to 
perform with its own forces when required;
    (6) Ability of the architect-engineer to furnish or to obtain 
required materials and equipment;
    (7) If the geographical or topographical aspects of the project are 
deemed vital, familiarity with the locality where the project is 
situated;
    (8) Financial capacity;
    (9) Responsibility of the architect-engineer under standards 
provided in FAR subpart 9.1. No contract may be

[[Page 56]]

awarded to a contractor that does not meet these standards;
    (10) Volume of work previously awarded to the firm by the Agency, 
with the object of effecting an equitable distribution of architect-
engineer contracts among qualified firms. Each architect-engineer 
evaluation board shall give favorable consideration, to the fullest 
extent practicable to the most highly qualified firms that have not had 
prior experience on Government projects (including small business firms 
and firms owned by the socially and/or economically deprived).
    (c) The evaluation board shall prepare a selection memorandum for 
the approval of the head of the contracting activity. The selection 
memorandum will be signed by the board chairman and cleared by each 
board member. The selection memorandum shall include the following 
information:
    (1) A listing by name of all firms reviewed by the board;
    (2) A listing of the evaluation criteria applied;
    (3) An analysis of the selection showing the rationale for the 
board's recommendation;
    (4) The board's recommendation of the three most highly qualified 
firms, in order of preference;
    (5) An independent Government cost estimate. The evaluation board 
shall require the project engineer to develop an independent Government 
estimate of the cost of the required architect-engineer services. 
Consideration shall be given to the estimated value of the services to 
be rendered, the scope, complexity, and the nature of the project and 
the estimated costs expected to be generated by the work. The 
independent Government estimate shall be revised as required during 
negotiations to correct noted deficiencies and reflect changes in or 
clarification of, the scope of the work to be performed by the 
architect-engineer. A cost estimate based on the application of 
percentage factors to cost estimates of the various segments of the work 
involved, e.g., construction project, may be developed for comparison 
purposes, but such a cost estimate shall not be used as a substitute for 
the independent Government estimate.



Sec. 736.602-4  Selection authority.

    (a) The head of the contracting activity or his/her authorized 
designee shall review the selection memorandum and shall either approve 
it or return it to the board for reconsideration for specified reasons.
    (b) Approval of the selection memorandum by the head of the 
contracting activity or his/her authorized designee shall serve as 
authorization for the contracting office to commence negotiation.



Sec. 736.602-5  Short selection process for procurements not to exceed 
          the simplified acquisition threshold.

    References to FAR 36.602-3 and 36.602-4 contained in FAR 36.602-5 
shall be construed as references to 736.602-3 and 736.602-4 of this 
subpart.

[49 FR 13254, Apr. 3, 1984, as amended at 61 FR 39095, July 26, 1996]



Sec. 736.603  Collecting data on and appraising firms' qualifications.

    An USAID Consultant Registry Information System (ACRIS) is 
maintained in Washington by the USAID Office of Small and Disadvantaged 
Business Utilization. Architect-engineers wishing to perform contracts 
for USAID should file the appropriate form with that office, as provided 
in section 705.002. Procurements are publicized in the Commerce Business 
Daily, as provided in FAR part 5.

[49 FR 13254, Apr. 3, 1984, as amended at 52 FR 21059, June 4, 1987; 53 
FR 50631, Dec. 16, 1988]



Sec. 736.605  Government cost estimate for architect-engineer work.

    See 736.602-3(c)(5).

                           PART 737 [RESERVED]

[[Page 57]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 742_CONTRACT ADMINISTRATION

                    Subpart 742.7_Indirect Cost Rates

Sec.

Sec. 742.770 Negotiated indirect cost rate agreement.

         Subpart 742.11_Production, Surveillance, and Reporting


Sec. 742.1170 Performance monitoring and progress reporting.

Sec. 742.1170-1 General.

Sec. 742.1170-2 Applicability.

Sec. 742.1170-3 Policy.

Sec. 742.1170-4 Progress reporting requirements and contract clause.

            Subpart 742.15_Contractor Performance Information


Sec. 742.1501 [Reserved]

Sec. 742.1502 Policy.

Sec. 742.1503 Procedures.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

                    Subpart 742.7_Indirect Cost Rates



Sec. 742.770  Negotiated indirect cost rate agreement.

    Except for educational institutions having a cognizant agency (as 
defined in OMB Circular A-88, 44 FR 70094, 12/5/79) other than USAID, 
USAID may establish negotiated overhead rates in a Negotiated Indirect 
Cost Rate Agreement, executed by both parties. The Negotiated Indirect 
Cost Rate Agreement is automatically incorporated in each contract 
between the parties and shall specify: (a) The final rate(s), (b) the 
base(s) to which the rate(s) apply, (c) the period(s) for which the 
rate(s) apply, (d) the items treated as direct costs, and (e) the 
contract(s) to which the rate(s) apply. The Negotiated Indirect Cost 
Rate Agreement shall not change any monetary ceiling, obligation, or 
specific cost allowance or disallowance provided for in each contract 
between the parties.

[49 FR 13256, Apr. 3, 1984; 53 FR 50631, Dec. 16, 1988]

         Subpart 742.11_Production, Surveillance, and Reporting

    Source: 72 FR 53163, Sept. 18, 2007, unless otherwise noted.



Sec. 742.1170  Performance monitoring and progress reporting.



Sec. 742.1170-1  General.

    Performance monitoring is a function of contract administration used 
to determine contractor progress towards achieving the goals and 
objectives of the contract and to identify any factors that may delay or 
prevent the accomplishment of those goals and objectives. Performance 
monitoring requires USAID personnel, particularly the cognizant 
technical officer, to maintain adequate knowledge of the contractor's 
activities and progress in order to ensure that USAID's objectives, as 
stated in the contract's Statement of Work, will be achieved.



Sec. 742.1170-2  Applicability.

    (a) This section applies to USAID non-personal, professional/
technical services contracts exceeding the simplified acquisition 
threshold, but may be applied to other USAID contracts, if the 
contracting officer and requiring office determine that doing so is in 
the best interests of the Agency. The contracting officer must ensure 
that this determination is documented in the contract file. This section 
does not apply to personal services contracts.
    (b) The underlying principles of FAR 48 CFR subpart 42.11 apply to 
USAID contracts and are inherent to this section. However, not all of 
the specific requirements and terminology in FAR 48 CFR subpart 42.11 
are compatible with the types of technical assistance contracts usually 
awarded by USAID. Therefore, this section 742.1170 applies when the 
requirements of FAR 48 CFR subpart 42.11 do not meet USAID requirements 
or are otherwise not appropriate.
    (c) The progress reports discussed in this section are separate from 
the performance evaluation reports prepared

[[Page 58]]

in accordance with FAR 48 CFR subpart 42.15 and internal Agency 
procedures, although they may be used by USAID personnel or their 
authorized representatives when evaluating the contractor's performance. 
Furthermore, the policies, procedures, and limitations of this section 
do not apply to technical reports, studies, papers, etc., the 
acquisition of which may be part of or even the sole purpose of the 
contract.



Sec. 742.1170-3  Policy.

    (a) The contractor is responsible for timely contract performance. 
Performance monitoring by USAID does not obviate this responsibility.
    (b) The requiring office, particularly the cognizant technical 
officer and the contracting officer, will determine how to monitor the 
contractor's performance to protect the Government's interests, by 
considering:
    (1) The contract requirements for reporting progress;
    (2) The contract performance schedule;
    (3) The contractor's implementation plan or workplan;
    (4) The contractor's history of contract performance;
    (5) The contractor's experience with the services or supplies being 
provided under the contract;
    (6) The contractor's financial capability;
    (7) Any other factors the requiring office, particularly the 
cognizant technical officer and the contracting officer, considers 
appropriate and necessary to adequately monitor contractor performance 
(for example, the day-to-day working proximity of the cognizant 
technical officer or contracting officer to the contractor's place of 
performance).
    (c) In monitoring contractor performance, the requiring office 
(particularly the cognizant technical officer and contracting officer) 
must utilize any of the contractor's existing systems or processes for 
monitoring progress, provided that doing so is not contrary to the terms 
of the contract. The requiring officer or cognizant technical officer 
must not require anything from the contractor that is outside the scope 
or terms of the contract or may result in claims of waivers, of changes, 
or of other contract modifications. Further, progress reports shall not 
require information already available from other sources.



Sec. 742.1170-4  Progress reporting requirements and contract clause.

    (a) When the requiring office needs information on contract 
performance status on a regular basis, the contracting officer may 
require the contractor to submit periodic progress reports, tailored to 
address specific contract requirements but limited to only that 
information essential to USAID's needs in monitoring the contractor's 
progress.
    (b) Because the cognizant technical officer is the individual most 
familiar with the contractor's performance, the contractor must submit 
the progress reports directly to the cognizant technical officer. The 
cognizant technical officer must review the reports and advise the 
contracting officer, in writing, of any recommended action, including 
any action needed to address potential or actual delays in performance. 
The cognizant technical officer must so advise the contracting officer 
in sufficient time, typically thirty days, for him or her to take any 
action that the contracting officer determines is appropriate. The 
requirements of this paragraph do not relieve the contractor of 
notification requirements identified elsewhere in the contract.
    (c) The contracting officer must insert the clause at 752.242-70, 
Periodic Progress Reports, in solicitations and contracts that require 
progress reporting, as specified in this section. The contracting 
officer must include specific reporting instructions in the Schedule.

            Subpart 742.15_Contractor Performance Information

    Source: 65 FR 36642, June 9, 2000, unless otherwise noted.



Sec. 742.1501  [Reserved]



Sec. 742.1502  Policy.

    (a) USAID contracting officers shall report contractor performance 
information at least annually, employing

[[Page 59]]

the procedures prescribed by the NIH Contractor Performance System. 
(Access to the system by USAID contracting office personnel is 
authorized by the USAID Past Performance Coordinator, E-mail address: 
AIDNET: Past [email protected]@aidw/ Internet: 
[email protected].)
    (b) Performance for personal services contracts awarded under AIDAR 
Appendices D and J shall not be evaluated under the contractor 
performance reporting procedures prescribed in FAR subpart 42.15.

[65 FR 36642, June 9, 2000; 65 FR 39470, June 26, 2000]



Sec. 742.1503  Procedures.

    (a) [Reserved]
    (b) Personal services contractors shall be recognized as Government 
personnel for the purposes of the restriction on access to contractor 
performance information in FAR 42.1503(b).

             PART 744_SUBCONTRACTING POLICIES AND PROCEDURES

                  Subpart 744.2_Consent to Subcontracts

Sec.

Sec. 744.202-170 Partner vetting.

    Source: 77 FR 8171, Feb. 14, 2012, unless otherwise noted.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp., 
p. 435.

                  Subpart 744.2_Consent to Subcontracts



Sec. 744.202-170  Partner vetting.

    If an acquisition is identified as subject to partner vetting, see 
(48 CFR) AIDAR 704.70 for the applicable procedures and requirements.

                      PART 745_GOVERNMENT PROPERTY

    Authority: Sec. 621, Pub. L. 787-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp., 
p. 435.

                          Subpart 745.1_General



Sec. 745.106  Contract clauses.

    (a) The contracting officer shall insert the clause at 752.245-71 in 
all contracts under which the contractor will acquire property for use 
overseas and the contract funds were obligated under a Strategic 
Objective agreement (or similar agreement) with the cooperating country.
    (b) The contracting officer shall insert the applicable clause as 
required in (48 CFR) FAR 45.106 in all contracts under which the 
contractor will acquire property with funds not already obligated under 
a Strategic Objective agreement (or similar agreement) with the 
cooperating country.

[64 FR 5008, Feb. 2, 1999]

                         PART 747_TRANSPORTATION

    Authority: Sec. 621, Pub. L. 98-195, 75 Stat. 445 (22 U.S.C. 2381), 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR 1979 Comp., 
p. 435.

         Subpart 747.5_Ocean Transportation by U.S.-Flag Vessels



Sec. 747.507  Contract clauses.

    Contracting officers shall insert the clause at 752.247-70 in 
solicitations and contracts solely for ocean transportation services, 
and in solicitations and contracts for goods and ocean transportation 
services when the ocean transportation will be fixed at the time the 
contract is awarded. Contracting Officers shall use (48 CFR) FAR 52.247-
64 as prescribed in (48 CFR) FAR 27.507(a) in other situations.

[64 FR 5008, Feb. 2, 1999]

                    PART 749_TERMINATION OF CONTRACTS

                    Subpart 749.1_General Principles

Sec.

Sec. 749.100 Scope of subpart.

Sec. 749.111 Review of proposed settlements.

Sec. 749.111-70 Termination settlement review boards.

Sec. 749.111-71 Required review and approval.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163,

[[Page 60]]

Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.

    Source: 49 FR 13256, Apr. 3, 1984, unless otherwise noted.

                    Subpart 749.1_General Principles



Sec. 749.100  Scope of subpart.

    The Foreign Aid and Related Agencies Appropriation Act, 1963, and 
subsequent appropriation Acts, have imposed the following requirement:
    None of the funds appropriated or made available pursuant to this 
Act for carrying out the Foreign Assistance Act of 1961, as amended, may 
be used for making payments on any contract for procurement to which the 
United States is a party entered into after the date of enactment of 
this Act which does not contain a provision authorizing the termination 
of such contract for the convenience of the United States.
    See, for example, section 110 of the Foreign Assistance and Related 
Agencies Appropriation Act, 1965.



Sec. 749.111  Review of proposed settlements.



Sec. 749.111-70  Termination settlement review boards.

    (a) The USAID Settlement Review Board shall be composed of the 
following members or their delegates (except as provided under 749.111-
71(b)):
    (1) M/OAA Director;
    (2) Controller;
    (3) General Counsel.
    (b) The M/OAA Director or his/her delegate shall be designated as 
chairman of the board. Delegate members of the board shall have broad 
business and contracting experience and shall be senior USAID officials. 
Each member or his/her delegate must be in attendance in order to 
conduct business, and the board shall act by majority vote. No 
individual shall serve as a member of a board for the review of a 
proposed settlement if he/she has theretofore reviewed, approved or 
disapproved or recommended approval, disapproval or other action with 
respect to any substantive element of such settlement proposal.
    (c) The chairman shall appoint a nonvoting recorder who shall be 
responsible for receiving cases, scheduling and recording the 
proceedings at meetings, maintaining a log of all cases received by him/
her for the board, and other duties as assigned by the board.

[49 FR 13256, Apr. 3, 1984, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 749.111-71  Required review and approval.

    (a) When required. The USAID Settlement Review Board shall receive 
and approve all USAID/W and Mission proposed settlements or 
determinations if:
    (1) The amount of settlement, by agreement or determination, 
involves $100,000 or more;
    (2) The settlement or determination is limited to adjustment of the 
fee of a cost-reimbursement contract or subcontract and: (i) In the case 
of complete termination, the fee, as adjusted, with respect to the 
terminated portion of the contract or subcontract is $100,000 or more; 
or (ii) in the case of a partial termination, the fee, as adjusted, with 
respect to the terminated portion of the contract or subcontract is 
$100,000 or more;
    (3) The head of the contracting activity concerned determines that a 
review of a specific case or class of cases is desirable; or
    (4) The contracting officer, in his/her discretion, desires review 
by the board.
    (b) Level of review. Proposed settlements in excess of $5 million 
shall be reviewed and approved by a board consisting of the M/OAA 
Director, the General Counsel, and the Controller, without power of 
redelegation.
    (c) Submission of information. The contracting officer shall submit 
to the board a statement of the proposed settlement agreement or 
determination, supported by such detailed information as is required for 
an adequate review. This information should normally include copies of: 
(1) The contractor's or subcontractor's settlement proposal, (2) the 
audit report, (3) the property disposal report and any required 
approvals in connection therewith, and (4) the contracting officer's 
memorandum explaining the settlement. The board may, in its discretion, 
require

[[Page 61]]

the submission of additional information.

[49 FR 13256, Apr. 3, 1984, as amended at 57 FR 5236, Feb. 13, 1992; 59 
FR 33446, June 29, 1994; 64 FR 42040, Aug. 3, 1999; 72 FR 19670, Apr. 
19, 2007]

               PART 750_EXTRAORDINARY CONTRACTUAL ACTIONS

Sec.

Sec. 750.000 Scope of part.

Subpart 750.70 [Reserved]

  Subpart 750.71_Extraordinary Contractual Actions To Protect Foreign 
                  Policy Interests of the United States


Sec. 750.7100 Scope of subpart.

Sec. 750.7101 Authority.

Sec. 750.7102 General policy.

Sec. 750.7103 Definitions.

Sec. 750.7104 Types of actions.

Sec. 750.7105 Approving authorities.

Sec. 750.7106 Standards for deciding cases.

Sec. 750.7106-1 General.

Sec. 750.7106-2 Amendments without consideration.

Sec. 750.7106-3 Mistakes.

Sec. 750.7106-4 Informal commitments.

Sec. 750.7107 Limitations upon exercise of authority.

Sec. 750.7108 Contractual requirements.

Sec. 750.7109 Submission of requests by contractors.

Sec. 750.7109-1 Filing requests.

Sec. 750.7109-2 Form of requests by contractors.

Sec. 750.7109-3 Facts and evidence.

Sec. 750.7110 Processing cases.

Sec. 750.7110-1 Investigation.

Sec. 750.7110-2 Office of General Counsel coordination.

Sec. 750.7110-3 Submission of cases to the M/OP Director.

Sec. 750.7110-4 Processing by M/OAA Director.

Sec. 750.7110-5 Contract files.

Sec. 750.7110-6 Inter-agency coordination.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13257, Apr. 3, 1984, unless otherwise noted.



Sec. 750.000  Scope of part.

    USAID is not among the agencies named in the Act or authorized by 
the President to take actions under it; however, see Subpart 750.71--
Extraordinary Contractual Actions to Protect Foreign Policy Interests of 
the United States.

Subpart 750.70 [Reserved]

  Subpart 750.71_Extraordinary Contractual Actions To Protect Foreign 
                  Policy Interests of the United States



Sec. 750.7100  Scope of subpart.

    This subpart sets forth the standards and the procedures for 
disposition of requests for extraordinary contractual actions under 
Executive Order 11223.



Sec. 750.7101  Authority.

    Under section 633 of the Foreign Assistance Act of 1961, 75 Stat. 
454 (22 U.S.C. 2933), as amended; Executive Order 11223, dated May 12, 
1965 (30 FR 6635), as amended; and Executive Order 12163, dated 
September 29, 1979 (44 FR 56673), as amended, the Administrator of the 
U.S. Agency for International Development has been granted authority to 
provide extraordinary contractual relief. The Authority is set forth in 
sections 3 and 4 of Executive Order 11223, as follows:

    Section 3. With respect to cost-type contracts heretofore or 
hereafter made with non-profit institutions under which no fee is 
charged or paid, amendments or modifications of such contracts may be 
made with or without consideration and may be utilized to accomplish the 
same things as any original contract could have accomplished, 
irrespective of the time or circumstances of the making, or of the form 
of the contract amended or modified, or of the amending or modifying 
contract and irrespective of rights which may have accrued under the 
contract or the amendments or modifications thereof.
    Section 4. With respect to contracts heretofore or hereafter made, 
other than those described in section 3 of this order, amendments and 
modifications of such contracts may be made with or without 
consideration and may be utilized to accomplish the same things as any 
original contract could have accomplished, irrespective of the time or 
circumstances of the making, or the form of the contract amended or 
modified, or of the amending or modifying contract, and irrespective of 
rights which may have accrued under the contract or the amendments or 
modifications thereof, if the Secretary of State or the Director of the 
United States International Development Cooperation Agency (with respect 
to functions vested in or delegated to Director) determines in each case 
that such action is necessary to protect

[[Page 62]]

the foreign policy interests of the United States.

[49 FR 49472, Dec. 20, 1984, as amended at 62 FR 40469, July 29, 1997; 
64 FR 42042, Aug. 3, 1999]



Sec. 750.7102  General policy.

    Extra-contractual claims arising from foreign assistance contracts 
will be processed in accordance with this subpart, which is similar to 
that utilized to process claims for extraordinary relief under FAR Part 
50, as modified to meet the circumstances involved under the Foreign 
Assistance Act and the different authority involved.



Sec. 750.7103  Definitions.

    (a) The term approving authority as used in this subpart means an 
officer or official having been delegated authority to approve actions 
under the Executive Order. This authority is distinguished from 
authority to take appropriate contractual action pursuant to such 
approval.
    (b) The term the Executive Order shall mean Executive Order 11223 
(30 FR 6635) as amended, unless otherwise stated.
    (c) The term the Act shall mean the Foreign Assistance Act of 1961, 
as amended.

[49 FR 13257, Apr. 3, 1984, as amended at 49 FR 49472, Dec. 20, 1984]



Sec. 750.7104  Types of actions.

    Three types of actions may be taken by or pursuant to the direction 
of an approving authority under the Executive Order. These are 
contractual adjustments such as amendments without consideration, 
correction of mistakes, and formalization of informal commitments.



Sec. 750.7105  Approving authorities.

    All authority to approve actions under this subpart has been 
delegated to the M/OAA Director.

[50 FR 16086, Apr. 24, 1985, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 750.7106  Standards for deciding cases.



Sec. 750.7106-1  General.

    The mere fact that losses occur under a Government contract is not, 
by itself, a sufficient basis for the exercise of the authority 
conferred by the Executive Order. Whether, in a particular case, 
appropriate action such as amendment without consideration, correction 
of a mistake or ambiguity in a contract, or formalization of an informal 
commitment, will protect the foreign policy interests of the United 
States is a matter of sound judgment to be made on the basis of all of 
the facts of such case. Although it is obviously impossible to predict 
or enumerate all the types of cases with respect to which action may be 
appropriate, examples of certain cases or types of cases where action 
may be proper are set forth in sections 750.7106-2 through 750.7106-4. 
Even if all of the factors contained in any of the examples are present, 
other factors or considerations in a particular case may warrant denial 
of the request. These examples are not intended to exclude other cases 
where the approving authority determines that the circumstances warrant 
action.



Sec. 750.7106-2  Amendments without consideration.

    (a) Where an actual or threatened loss under a foreign assistance 
contract, however caused, will impair the productive ability of a 
contractor whose continued performance of any foreign assistance 
contract or whose continued operation as a source of supply is found to 
be essential to protect the foreign policy interests of the United 
States, the contract may be adjusted but only to the extent necessary to 
avoid such impairment to the contractor's productive ability.
    (b) Where a contractor suffers a loss (not merely a diminution of 
anticipated profits) on a foreign assistance contract as a result of 
Government action, the character of the Government action will generally 
determine whether any adjustment in the contract will be made and its 
extent. Where the Government action is directed primarily at the 
contractor and is taken by the Government in its capacity as the

[[Page 63]]

other contracting party, the contract may be adjusted if fairness so 
requires; thus where such Government action, although not creating any 
liability on its part, increases the cost of performance, considerations 
of fairness may make appropriate some adjustment in the contract.



Sec. 750.7106-3  Mistakes.

    A contract may be amended or modified to correct or mitigate the 
effect of a mistake, including the following examples:
    (a) A mistake or ambiguity which consists of the failure to express 
or to express clearly in the written contract the agreements as both 
parties understood them;
    (b) A mistake on the part of the contractor which is so obvious that 
it was or should have been apparent to the contracting officer; and
    (c) A mutual mistake as to a material fact.

Amending contracts to correct mistakes with the least possible delay 
normally will protect the foreign policy interests of the United States 
by expediting the procurement program and by giving contractors proper 
assurance that such mistakes will be corrected expeditiously and fairly.



Sec. 750.7106-4  Informal commitments.

    Informal commitments may be formalized under certain circumstances 
to permit payment to persons who have taken action without a formal 
contract; for example, where any person, pursuant to written or oral 
instructions from an officer or official of the Agency and relying in 
good faith upon the apparent authority of the officer or official to 
issue such instructions, has arranged to furnish or has furnished 
property or services to the agency and/or to a foreign assistance 
contractor or subcontractor without formal contractual coverage for such 
property or services. Formalization of commitments under such 
circumstances normally will protect the foreign policy interests of the 
United States by assuring persons that they will be treated fairly and 
paid expeditiously.



Sec. 750.7107  Limitations upon exercise of authority.

    (a) The Executive Order is not authority for:
    (1) The use of the cost-plus-a-percentage-of-cost system of 
contracting;
    (2) The making of any contract in violation of existing law relating 
to limitation on profit or fees;
    (3) The waiver of any bid, payment performance or other bond 
required by law.
    (b) No amendments, or modifications shall be entered into under the 
authority of the Executive Order:
    (1) Unless, with respect to cases falling within Section 4 of the 
Executive Order, a finding is made that the action is necessary to 
protect the foreign policy interests of the United States;
    (2) Unless other legal authority in the Agency is deemed to be 
lacking or inadequate;
    (3) Except within the limits of the amounts appropriated and the 
statutory contract authorization.
    (c) No contract shall be amended or modified unless the request 
therefor has been filed before all obligations (including final payment) 
under the contract have been discharged.
    (d) No informal commitment shall be formalized unless:
    (1) A request for payment has been filed within six months after 
arranging to furnish or furnishing property or services in reliance upon 
the commitment;
    (2) USAID has received the services satisfactorily performed, or has 
accepted property furnished in reliance on the commitment;
    (3) The USAID employees alleged to have made the informal commitment 
have accepted responsibility for making the informal commitment in 
question; and
    (4) USAID has taken appropriate action to prevent recurrence.

[49 FR 13257, Apr. 3, 1984, as amended at 50 FR 16088, Apr. 24, 1985; 53 
FR 4982, Feb. 19, 1988]



Sec. 750.7108  Contractual requirements.

    Every contract amended or modified pursuant to this subpart shall 
contain:
    (a) A citation of the Act and Executive Order.

[[Page 64]]

    (b) A brief statement of the circumstances justifying the action;
    (c) A recital of the finding, with respect to cases falling within 
Section 4 of the Executive Order, that the action is necessary to 
protect the foreign policy interests of the United States.



Sec. 750.7109  Submission of requests by contractors.



Sec. 750.7109-1  Filing requests.

    Any person (hereinafter called the ``contractor'') seeking an 
adjustment under standards set forth in 750.7106 may file a request in 
duplicate with the cognizant contracting officer or his/her duly 
authorized representative. If such filing is impracticable, requests 
will be deemed to be properly filed if filed with the Chief of the 
Office of Acquisition and Assistance, Evaluation Division (M/OAA/E) for 
forwarding to the cognizant contracting officer.

[49 FR 13257, Apr. 3, 1984, as amended at 50 FR 50303, Dec. 10, 1985; 55 
FR 6802, Feb. 27, 1990; 56 FR 67225, Dec. 30, 1991; 59 FR 33446, June 
29, 1994; 72 FR 19670, Apr. 19, 2007]



Sec. 750.7109-2  Form of requests by contractors.

    The contractor's request shall normally consist of a letter to the 
contracting officer providing the information specified in FAR 50.303.



Sec. 750.7109-3  Facts and evidence.

    The contracting officer or the approving authority may, where 
considered appropriate, request the contractor to furnish the facts and 
evidence as described in FAR 50.304.

[49 FR 13257, Apr. 3, 1984, as amended at 62 FR 40469, July 29, 1997]



Sec. 750.7110  Processing cases.



Sec. 750.7110-1  Investigation.

    The Evaluation Division of the Office of Acquisition and Assistance 
(M/OAA/E) shall be responsible for assuring that the case prepared by 
the cognizant contracting officer makes a thorough investigation of all 
facts and issues relevant to each situation. Facts and evidence shall be 
obtained from contractor and Government personnel and shall include 
signed statements of material facts within the knowledge of the 
individuals where documentary evidence is lacking and audits where 
considered necessary to establish financial or cost related facts. The 
investigation shall establish the facts essential to meet the standards 
for deciding the particular case and shall address the limitations upon 
exercise of the authority of the M/OAA Director to approve the request.

[62 FR 40469, July 29, 1997, as amended at 64 FR 42042, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 750.7110-2  Office of General Counsel coordination.

    Prior to the submission of a case to the M/OAA Director recommending 
extraordinary contractual relief, the claim shall be fully developed by 
the cognizant contracting officer and concurrences or comments shall be 
obtained from the Office of General Counsel for the proposed relief to 
be granted. Such concurrences or comments shall be incorporated in or 
accompany the action memorandum submitted for consideration to the M/OAA 
Director in accordance with 750.7110-3.

[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 750.7110-3  Submission of cases to the M/OP Director.

    Cases to be submitted for consideration by the M/OAA Director shall 
be prepared and forwarded by the cognizant contracting officer through 
M/OAA/E to the M/OAA Director by means of an action memorandum. M/OAA/E 
will review the action memorandum for accuracy and completeness. The 
action memorandum shall provide for approval or disapproval by the M/OAA 
Director of the disposition recommended by the contracting officer. The 
action memorandum shall address:
    (a) The nature of the case;
    (b) The basis for authority to act under section 750.7101;
    (c) The findings of fact essential to the case (see 750.7109-3) 
arranged chronologically with cross references to supporting enclosures;
    (d) The conclusions drawn from applying the standards for deciding 
cases, as set forth in 750.7106, to the findings of fact;

[[Page 65]]

    (e) Compliance with the limitations upon exercise of authority, as 
set forth in section 750.7107 (for informal commitments, include 
statements addressing each of the limitations in paragraph (d) of 
750.7107):
    (f) Concurrences or comments obtained from the Office of General 
Counsel;
    (g) Verification of funds availability and the contracting officer's 
determination of cost/price reasonableness when the disposition 
recommended requires payment to a contractor;
    (h) The disposition recommended and, if contractual action is 
recommended with respect to cases falling within Section 4 of the 
Executive Order, the opinion of the contracting officer that such action 
is necessary to protect the foreign policy interest of the United 
States; and
    (i) The action memorandum shall enclose all evidentiary materials, 
including the reports and comments of all cognizant Government or other 
officials, and a copy of the contractor's request. The action memorandum 
should provide the following information related to the contractor's 
request, as applicable:
    (1) Date of request;
    (2) Date request received by USAID:
    (3) Contract number;
    (4) Contractor's name and address;
    (5) Name, address, and phone number of contractor's representative;
    (6) Name, office symbol, and phone number of cognizant contracting 
officer;
    (7) Amount of request.

[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 750.7110-4  Processing by M/OAA Director.

    When the action memorandum has been determined to be as accurate and 
complete as possible and has been prepared in accordance with this 
subpart, M/OAA/E will forward the action memorandum to the M/OAA 
Director. The M/OAA Director will sign and date the action memorandum 
indicating approval or disapproval of the disposition recommended by the 
contracting officer.

[62 FR 40469, July 29, 1997, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



Sec. 750.7110-5  Contract files.

    The fully executed action memorandum indicating approval/disapproval 
and a copy of the contractual document implementing any approved 
contractual action shall be placed in the contract file.

[62 FR 40469, July 29, 1997; 62 FR 47532, Sept. 9, 1997]



Sec. 750.7110-6  Inter-agency coordination.

    (a) General. Where a case involves matters of interest to more than 
one department or agency, USAID should maintain liaison with other 
departments and agencies of the Government and take such joint action as 
may be proper under the circumstances, including holding joint meetings.
    (b) Cases involving funds of other departments or agencies. Requests 
for adjustment within any category, involving the funds of another 
department or agency, shall not be approved by USAID until advice is 
requested and received from the department or agency whose funds are 
involved.

[[Page 66]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 752_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

              Subpart 752.2_Texts of Provisions and Clauses

Sec.

Sec. 752.200 Scope of subpart.

Sec. 752.202-1 Definitions.

Sec. 752.204-2 Security requirements.

Sec. 752.204-70 Partner vetting pre-award requirements.

Sec. 752.204-71 Partner vetting.

Sec. 752.209-71 Organizational conflicts of interest discovered after 
          award.

Sec. 752.211-70 Language and measurement.

Sec. 752.216-70 Award fee.

Sec. 752.216-71 Partner vetting in indefinite delivery contracts.

Sec. 752.219-8 Utilization of small business concerns and small 
          disadvantaged business concerns.

Sec. 752.219-70 USAID Mentor-Prot[eacute]g[eacute] Program.

Sec. 752.219-71 Mentor requirements and evaluation.

Sec. 752.225-9 Buy American Act--Trade Agreements Act--Balance of 
          Payments Program.

Sec. 725.225-70 Source, origin and nationality requirements.

Sec. 725.225-71 Local procurement.

Sec. 752.226-1 Determination of status as disadvantaged enterprise.

Sec. 752.226-2 Subcontracting with disadvantaged enterprises.

Sec. 752.226-3 Limitation on subcontracting.

Sec. 752.227-14 Rights in Data--general.

Sec. 752.228-3 Worker's compensation insurance (Defense Base Act).

Sec. 752.228-7 Insurance--liability to third persons

Sec. 752.228-9 Cargo insurance.

Sec. 752.228-70 Medical Evacuation (MEDEVAC) Services.

Sec. 752.229-70 Federal, state and local taxes.

Sec. 752.231-71 Salary supplements for HG employees.

Sec. 752.232-7 Payments under time-and-materials and labor-hour 
          contracts.

Sec. 752.232-70 Letter of credit advance payment.

Sec. 752.242-70 Periodic progress reports.

Sec. 752.245-70 Government property--USAID reporting requirements.

Sec. 752.245-71 Title to and care of property.

Sec. 752.247-70 Preference for privately owned U.S.-flag commercial 
          vessels.

             Subpart 752.70_Texts of USAID Contract Clauses


Sec. 752.7000 Scope of subpart.

Sec. 752.7001 Biographical data.

Sec. 752.7002 Travel and transportation.

Sec. 752.7003 Documentation for payment.

Sec. 752.7004 Emergency locator information.

Sec. 752.7005 Submission requirements for development experience 
          documents.

Sec. 752.7006 Notices.

Sec. 752.7007 Personnel compensation.

Sec. 752.7008 Use of Government facilities or personnel.

Sec. 752.7009 Marking.

Sec. 752.7010 Conversion of U.S. dollars to local currency.

Sec. 752.7011 Orientation and language training.

Sec. 752.7012 Protection of the individual as a research subject.

Sec. 752.7013 Contractor-mission relationships.

Sec. 752.7014 Notice of changes in travel regulations.

Sec. 752.7015 Use of pouch facilities.

Sec. 752.7016-752.7017 [Reserved]

Sec. 752.7018 Health and accident coverage for USAID participant 
          trainees.

Sec. 752.7019 Participant training.

Sec. 752.7020 [Reserved]

Sec. 752.7021 Changes in tuition and fees.

Sec. 752.7022 Conflicts between contract and catalog.

Sec. 752.7023 Required visa form for USAID participants.

Sec. 752.7024 Withdrawal of students.

Sec. 752.7025 Approvals.

Sec. 752.7026 [Reserved]

Sec. 752.7027 Personnel.

Sec. 752.7028 Differential and allowances.

Sec. 752.7029 Post privileges.

Sec. 752.7030 Inspection trips by contractor's officers and executives.

Sec. 752.7031 Leave and holidays.

Sec. 752.7032 International travel approval and notification 
          requirements.

Sec. 752.7033 Physical fitness.

Sec. 752.7034 Acknowledgement and disclaimer.

Sec. 752.7035 Public notices.

Subpart 752.3-70--USAID Clause Matrices [Reserved]

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) 
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., 
p. 435.

    Source: 49 FR 13259, Apr. 3, 1984, unless otherwise noted.

              Subpart 752.2_Texts of Provisions and Clauses



Sec. 752.200  Scope of subpart.

    None of the clauses specified in this subpart are for use in USAID 
personal

[[Page 67]]

services contracts. For personal services contract clauses, see AIDAR 
Appendix D--Direct USAID Contracts with U.S. Citizens or U.S. Residents 
for Personal Services Abroad and AIDAR Appendix J--Direct USAID 
Contracts with Cooperating Country Nationals and with Third Country 
Nationals for Personal Services Abroad.

[49 FR 13259, Apr. 3, 1984, as amended at 51 FR 11450, Apr. 3, 1986; 51 
FR 12706, Apr. 15, 1986; 57 FR 5236, Feb. 13, 1992; 62 FR 40469, July 
29, 1997]



Sec. 752.202-1  Definitions.

    (a) As prescribed in 702.270 and in FAR Subpart 2.2, USAID contracts 
use the Definitions clause in FAR 52.202-1 and its Alternate I, as 
appropriate, and the following additional definitions.
    (b) Alternate 70. For use in all USAID contracts. Use in addition to 
the clause in FAR 52.202-1.

   USAID Definitions Clause--General Supplement for Use in All USAID 
                          Contracts (JAN 1990)

    (a) USAID shall mean the U.S. Agency for International Development.
    (b) Administrator shall mean the Administrator or the Deputy 
Administrator of USAID.
    (c) When this contract is with an educational institution Campus 
Coordinator shall mean the representative of the Contractor at the 
Contractor's home institution, who shall be responsible for coordinating 
the activities carried out under the contract.
    (d) When this contract is with an educational institution Campus 
Personnel shall mean representatives of the Contractor performing 
services under the contract at the Contractor's home institution and 
shall include the Campus Coordinator.
    (e) Consultant shall mean any especially well qualified person who 
is engaged, on a temporary or intermittent basis to advise the 
Contractor and who is not an officer or employee of the Contractor who 
performs other duties for the Contractor.
    (f) Contractor employee shall mean an employee of the Contractor 
assigned to work under this contract.
    (g) Cooperating Country or Countries shall mean the foreign country 
or countries in or for which services are to be rendered hereunder.
    (h) Cooperating Government shall mean the government of the 
Cooperating Country.
    (i) Federal Acquisition Regulations (FAR), when referred to herein 
shall include U.S. Agency for International Development Acquisition 
Regulations (AIDAR).
    (j) Government shall mean the United States Government.
    (k) Mission shall mean the United States AID Mission to, or 
principal USAID office in, the Cooperating Country.
    (l) Mission Director shall mean the principal officer in the Mission 
in the Cooperating Country, or his/her designated representative.

    (c) Alternate 71. For use in USAID contracts with an educational 
institution for participant training. Use in addition to the clauses in 
FAR 52.202-1 and in 752.202-1(b) of this chapter.

 USAID Definitions Clause--Supplement for Contracts With an Educational 
             Institution for Participant Training (APR 1984)

    (a) Catalog shall mean any medium by which the Institution publicly 
announces terms and conditions for enrollment in the Institution, 
including tuition and fees to be charged. This includes ``bulletins,'' 
``announcements,'' or any other similar word the Institution may use.
    (b) Director shall mean the individual who fills the USAID position 
of Director, Center for Human Capacity Development (G/HCD), or his/her 
authorized representative acting within the limits of his/her authority.
    (c) Fees shall mean those applicable charges directly related to 
enrollment in the Institution. This shall not include any permit charge 
(e.g., parking, vehicle registration), or charges for services of a 
personal nature (e.g., food, housing, laundry) unless specifically 
called for in this contract.
    (d) Institution shall mean the educational institution providing 
services hereunder. The terms ``Institution'' and ``Contractor'' are 
synonymous.
    (e) Tuition shall mean the amount of money charged by an institution 
for instruction, not including fees as described in this section.

    (d) Alternate 72. For use in all USAID contracts which involve any 
performance overseas. Use in addition to the clauses in FAR 52.202-1 and 
in 752.202-1(b) of this chapter.

   USAID Definitions Clause--Supplement for USAID Contracts Involving 
                     Performance Overseas (DEC 1986)

    (a) Contractor's Chief of Party shall mean the representative of the 
Contractor in the Cooperating Country who shall be responsible for 
supervision of the performance of all duties undertaken by the 
Contractor in the Cooperating Country.
    (b) Cooperating Country National (CCN) employee means an individual 
who meets the citizenship requirements of 48 CFR 702.170-5

[[Page 68]]

and is hired while residing outside the United States for work in a 
cooperating country.
    (c) Dependents shall mean:
    (1) Spouse;
    (2) Children (including step and adopted children) who are unmarried 
and under 21 years of age or, regardless of age, are incapable of self 
support.
    (3) Parents (including step and legally adoptive parents), of the 
employee or of the spouse, when such parents are at least 51 percent 
dependent on the employee for support; and
    (4) Sisters and brothers (including step or adoptive sisters or 
brothers) of the employee, or of the spouse, when such sisters and 
brothers are at least 51 percent dependent on the employee for support, 
unmarried and under 21 years of age, or regardless of age, are incapable 
of self support.
    (d) Local currency shall mean the currency of the Cooperating 
Country.
    (e) Regular employee shall mean a Contractor employee appointed to 
serve one year or more in the Cooperating Country.
    (f)Short-term employee shall mean a Contractor employee appointed to 
serve less than one year in the Cooperating Country.
    (g) Third Country National (TCN) employee means an individual who 
meets the citizenship requirements of 48 CFR 702.170-15 and is hired 
while residing outside the United States for work in a Cooperating 
Country.

[49 FR 13259, Apr. 3, 1984, as amended at 52 FR 4145, Feb. 10, 1987; 52 
FR 38098, Oct. 14, 1987; 55 FR 6802, Feb. 27, 1990; 64 FR 42042, Aug. 3, 
1999]



Sec. 752.204-2  Security requirements.

    Pursuant to the Uniform State/USAID/USIA Regulations (Volume 12, 
Foreign Affairs Manual, Chapter 540), USAID applies the safeguards 
applicable to ``Confidential'' information to administratively 
controlled information designated as ``Sensitive But Unclassified''. 
Therefore, when the clause in FAR 52.204-2 is used in USAID contracts, 
pursuant to 704.404, paragraph (a) of the clause is revised as follows:

    (a) This clause applies to the extent that this contract involves 
access to classified (`Confidential', `Secret', or `Top Secret'), or 
administratively controlled (`Sensitive But Unclassified') information.

[49 FR 13259, Apr. 3, 1984, as amended at 49 FR 33668, Aug. 24, 1984; 62 
FR 40469, July 29, 1997; 64 FR 5008, Feb. 2, 1999]



Sec. 752.204-70  Partner vetting pre-award requirements.

    As prescribed in (48 CFR) AIDAR 704.7005(a), insert the following 
provision in all solicitations subject to vetting:

            Partner Vetting Pre-award Requirements (FEB 2012)

    (a) USAID has determined that any contract resulting from this 
solicitation is subject to vetting. Terms used in this provision are 
defined in paragraph (b) of the AIDAR clause at 752.204-71 Partner 
Vetting, of this solicitation. An offeror that has not passed vetting is 
ineligible for award.
    (b) The following are the vetting procedures for this solicitation:
    (1) Prospective offerors review the attached USAID Partner 
Information Form, USAID Form 500-13, and submit any questions about the 
USAID Partner Information Form or these procedures to the contracting 
officer by the deadline for questions in the solicitation.
    (2) The contracting officer notifies the offeror when to submit the 
USAID Partner Information Form. For this solicitation, USAID will vet at 
[insert in the provision the applicable stage of the source selection 
process at which the Contracting Officer will notify the offeror(s) who 
must be vetted]. Within the timeframe set by the contracting officer in 
the notification, the offeror must complete and submit the information 
on the USAID Partner Information Form in accordance with instructions 
from the vetting official named in paragraph (d) of the AIDAR clause at 
752.204-71 Partner Vetting, of this solicitation.

    Note: Offerors who submit using non-secure methods of transmission 
do so at their own risk.

    (3) The offerors must notify proposed subcontractors of this 
requirement when the subcontractors are subject to vetting.
    (c) Source selection proceeds separately from vetting. Vetting is 
conducted independently from any discussions the contracting officer may 
have with an offeror. The offeror and any subcontractor subject to 
vetting must not provide vetting information to other than the vetting 
official. The offeror and any subcontractor subject to vetting will 
communicate only with the vetting official regarding their vetting 
submission(s) and not with any other USAID or USG personnel, including 
the contracting officer or his/her representatives. Exchanges between 
the Government and an offeror about vetting information submitted by the 
offeror or any proposed subcontractor are clarifications in accordance 
with FAR 15.306(a) (48 CFR 15.306(a)). The contracting officer 
designates

[[Page 69]]

the vetting official as the only individual authorized to clarify the 
offeror's and proposed subcontractor's vetting information.
    (d)(1) The vetting official notifies the offeror that it:
    (i) Has passed vetting,
    (ii) Has not passed vetting, or
    (iii) Must provide additional information, and resubmit the USAID 
Partner Information Form with the additional information within the 
number of days the vetting official specified in the notification.
    (2) The vetting official will include in the notification any 
information that USAID's Office of Security (SEC) determines releasable. 
In its determination, SEC will take into consideration the 
classification or sensitivity of the information, the need to protect 
sources and methods, or status of ongoing law enforcement and 
intelligence community investigations or operations.
    (e) Reconsideration. (1) Within 7 calendar days after the date of 
the vetting official's notification, an offeror that has not passed 
vetting may request in writing to the vetting official that the Agency 
reconsider the vetting determination. The request should include any 
written explanation, legal documentation and any other relevant written 
material for reconsideration.
    (2) Within 7 calendar days after the vetting official receives the 
request for reconsideration, the Agency will determine whether the 
offeror's additional information warrants a revised decision.
    (3) The Agency's determination of whether reconsideration is 
warranted is final.
    (f) Revisions to vetting information. (1) Offerors who change key 
individuals, whether the offeror has previously passed vetting or not, 
must submit a revised USAID Partner Information Form to the vetting 
official. This includes changes to key personnel resulting from 
revisions to the technical proposal.
    (2) The vetting official will follow the vetting process in 
paragraph (d) of this clause for any revision of the offeror's Form.
    (g) Award. At the time of award, the contracting officer will 
confirm with the vetting official that the apparently successful offeror 
has passed vetting. The contracting officer may award only to an 
apparently successful offeror that has passed vetting.

[77 FR 8171, Feb. 14, 2012]



Sec. 752.204-71  Partner vetting.

    As prescribed in (48 CFR) AIDAR 704.7005(b)(1) and 716.506(a), 
insert the following clause in all contracts subject to vetting:

                       Partner Vetting (FEB 2012)

    (a) The contractor must comply with the vetting requirements for key 
individuals under this contract.
    (b) Definitions. As used in this provision--
    Key individual means:
    (i) Principal officers of the organization's governing body (e.g., 
chairman, vice chairman, treasurer and secretary of the board of 
directors or board of trustees);
    (ii) The principal officer and deputy principal officer of the 
organization (e.g., executive director, deputy director, president, vice 
president);
    (iii) The program manager or chief of party for the USG-financed 
program; and
    (iv) Any other person with significant responsibilities for 
administration of the USG-financed activities or resources, such as key 
personnel as described in Automated Directives System Chapter 302. Key 
personnel, whether or not they are employees of the prime contractor, 
must be vetted.
    Vetting official means the USAID employee identified in paragraph 
(d) of this clause as having responsibility for receiving vetting 
information, responding to questions about information to be included on 
the USAID Partner Information Form, USAID Form 500-13, coordinating with 
the USAID Office of Security, and conveying the vetting determination to 
each offeror, potential subcontractors subject to vetting, and to the 
contracting officer. The vetting official is not part of the contracting 
office and has no involvement in the source selection process.
    (c) The Contractor must submit a USAID Partner Information Form, 
USAID Form 500-13, to the vetting official identified below during the 
contract when the Contractor replaces key individuals with individuals 
who have not been previously vetting for this contract. Note: USAID will 
not approve any key personnel who have not passed vetting.
    (d) The designated vetting official is:
    Vetting official:
________________________________________________________________________
    Address:
________________________________________________________________________

________________________________________________________________________

    Email: -------------------- (for inquiries only)
    (e)(1) The vetting official will notify the Contractor that it--
    (i) Has passed vetting,
    (ii) Has not passed vetting, or
    (iii) Must provide additional information, and resubmit the USAID 
Partner Information Form with the additional information within the 
number of days the vetting official specifies.
    (2) The vetting official will include in the notification any 
information that USAID's Office of Security (SEC) determines releasable. 
In its determination, SEC will take

[[Page 70]]

into consideration the classification or sensitivity of the information, 
the need to protect sources and methods, or status of ongoing law 
enforcement and intelligence community investigations or operations.
    (f) Reconsideration. (1) Within 7 calendar days after the date of 
the vetting official's notification, the contractor or prospective 
subcontractor that has not passed vetting may request in writing to the 
vetting official that the Agency reconsider the vetting determination. 
The request should include any written explanation, legal documentation 
and any other relevant written material for reconsideration.
    (2) Within 7 calendar days after the vetting official receives the 
request for reconsideration, the Agency will determine whether the 
contractor's additional information warrants a revised decision.
    (3) The Agency's determination of whether reconsideration is 
warranted is final.
    (g) A notification that the Contractor has passed vetting does not 
constitute any other approval under this contract.
    (h) When the contractor anticipates awarding a subcontract for which 
consent is required under FAR clause 52.244-2, Subcontracts, the 
subcontract is subject to vetting. The prospective subcontractor must 
submit a USAID Partner Information Form, USAID Form 500-13, to the 
vetting official identified in paragraph (d) of this clause. The 
contracting officer must not consent to award of a subcontract to any 
organization that has not passed vetting when required.
    (i) The contractor agrees to incorporate the substance of paragraphs 
(a) through (g) of this clause in all subcontracts under this contract.

                             (End of clause)

    Alternate I (FEB 2012). As prescribed in 704.7005(b)(2), substitute 
paragraphs (h) and (i) below for paragraphs (h) and (i) of the basic 
clause:

    (h)(1) When the contractor anticipates awarding a subcontract for 
which consent is required under FAR clause 52.244-2, Subcontracts, the 
subcontract is subject to vetting. The prospective subcontractor must 
submit a USAID Partner Information Form, USAID Form 500-13, to the 
vetting official identified in paragraph (d) of this clause. The 
contracting officer must not consent to award of a subcontract to any 
organization that has not passed vetting when required.
    (2) In addition, prospective subcontractors at any tier providing 
the following classes of items (supplies and services):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

must pass vetting. Contractors must not place subcontracts for these 
classes of items until they receive confirmation from the vetting 
official that the prospective subcontractor has passed vetting.
    (i) The contractor agrees to incorporate the substance of this 
clause in all subcontracts under this contract.

[77 FR 8171, Feb. 14, 2012]



Sec. 752.209-71  Organizational conflicts of interest discovered after 
          award.

    As prescribed in 709.507-2, include the following clause in any 
solicitation containing a provision in accordance with (48 CFR) FAR 
9.507-1, or a clause in accordance with (48 CFR) FAR 9.507-2, 
establishing a restraint on the contractor's eligibility for future 
contracts.

 Organizational Conflicts of Interest Discovered After Award (JUN 1993)

    (a) The Contractor agrees that, if after award it discovers either 
an actual or potential organizational conflict of interest with respect 
to this contract, it shall make an immediate and full disclosure in 
writing to the Contracting Officer which shall include a description of 
the action(s) which the Contractor has taken or proposes to take to 
avoid, eliminate or neutralize the conflict.
    (b) The Contracting Officer shall provide the contractor with 
written instructions concerning the conflict. USAID reserves the right 
to terminate the contract if such action is determined to be in the best 
interest of the Government.

                             (End of clause)

[58 FR 42255, Aug. 9, 1993, as amended at 64 FR 5008, Feb. 2, 1999]



Sec. 752.211-70  Language and measurement.

    The following clause shall be used in all USAID-direct contracts.

                   Language and Measurement (JUN 1992)

    (a) The English language shall be used in all written communications 
between the parties under this contract with respect to services to be 
rendered and with respect to all documents prepared by the contractor 
except as otherwise provided in the contract or as authorized by the 
contracting officer.
    (b) Wherever measurements are required or authorized, they shall be 
made, computed, and recorded in metric system units of measurement, 
unless otherwise authorized by USAID in writing when it has found that 
such usage is impractical or is likely to cause U.S. firms to experience 
significant inefficiencies or the loss of markets. Where the

[[Page 71]]

metric system is not the predominant standard for a particular 
application, measurements may be expressed in both the metric and the 
traditional equivalent units, provided the metric units are listed 
first.

                             (End of clause)

[57 FR 23321, June 3, 1992. Redesignated at 61 FR 39095, July 26, 1996]



Sec. 752.216-70  Award fee.

    As prescribed in 716.406, insert the following clause in 
solicitations and contracts in which an award-fee contract is 
contemplated.

                          Award Fee (MAY 1997)

    (a) The Government shall pay the Contractor for performing this 
contract such base fee and such additional fee as may be awarded, as 
provided in the Schedule.
    (b) Payment of the base fee and award fee shall be made as specified 
in the Schedule; provided, that after payment of 85 percent of the base 
fee and potential award fee, the Contracting Officer may withhold 
further payment of the base fee and award fee until a reserve is set 
aside in an amount that the Contracting Officer considers necessary to 
protect the Government's interest. This reserve shall not exceed 15 
percent of the total base fee and potential award fee or $100,000, 
whichever is less. The Contracting Officer shall release 75 percent of 
all fee withholds under this contract after receipt of the certified 
final indirect cost rate proposal covering the year of physical 
completion of this contract, provided the Contractor has satisfied all 
other contract terms and conditions, including the submission of the 
final patent and royalty reports, and is not delinquent in submitting 
final vouchers on prior years' settlements. The Contracting Officer may 
release up to 90 percent of the fee withholds under this contract based 
on the Contractor's past performance related to the submission and 
settlement of final indirect cost rate proposals.
    (c) Award fee determinations made by the Government under this 
contract are not subject to the Disputes clause.

                             (End of clause)

[64 FR 5008, Feb. 2, 1999]



Sec. 752.216-71  Partner vetting in indefinite delivery contracts.

    As prescribed in (48 CFR) AIDAR 716.506(b)(1), insert the following 
clause in all indefinite-delivery contracts subject to vetting:

       Partner Vetting in Indefinite Delivery Contracts (FEB 2012)

    (a) The contractor must comply with the vetting requirements for key 
individuals under this contract and in any orders that are identified as 
subject to vetting.
    (b) Definitions. As used in this provision--
    Key individual means:
    (i) Principal officers of the organization's governing body (e.g., 
chairman, vice chairman, treasurer and secretary of the board of 
directors or board of trustees);
    (ii) The principal officer and deputy principal officer of the 
organization (e.g., executive director, deputy director, president, vice 
president);
    (iii) The program manager or chief of party for the USG-financed 
program; and
    (iv) Any other person with significant responsibilities for 
administration of the USG-financed activities or resources, such as key 
personnel as described in Automated Directives System Chapter 302. Key 
personnel, whether or not they are employees of the prime contractor, 
must be vetted.
    Vetting official means the USAID employee identified in paragraph 
(d) of this clause as having responsibility for receiving vetting 
information, responding to questions about information to be included on 
the USAID Partner Information Form, USAID Form 500-13, coordinating with 
the USAID Office of Security, and conveying the vetting determination to 
each contractor, potential subcontractors subject to vetting, and to the 
cognizant contracting officer. The vetting official is not part of the 
contracting office and has no involvement in the source selection 
process.
    (c) The contractor must submit a USAID Partner Information Form, 
USAID Form 500-13 to the designated vetting official:
    (1) when the contractor replaces key individuals under the basic 
contract with individuals who have not been previously vetted.
    (2) when the contractor replaces key individuals under an order 
subject to vetting with individuals who have not been previously vetted. 
For changes to any key individuals associated with both the basic 
contract and any orders subject to vetting, the contractor must submit 
updated vetting forms to each designated vetting official. Note: USAID 
will not approve any key personnel who have not passed vetting.
    (d)(1) The designated vetting official for the basic contract is:
    Vetting official:
________________________________________________________________________
    Address:
________________________________________________________________________

________________________________________________________________________

    Email: -------------------- (for inquiries only)

[[Page 72]]

    (2) Each order subject to vetting will identify the vetting official 
for that order. The contractor must submit vetting information specific 
to an order to the vetting official identified in that order.
    (e)(1) The vetting official will notify the contractor that it--
    (i) Has passed vetting,
    (ii) Has not passed vetting, or
    (iii) Must provide additional information, and resubmit the USAID 
Partner Information Form with the additional information within the 
number of days the vetting official specifies.
    (2) The vetting official will include in the notification any 
information that USAID's Office of Security (SEC) determines releasable. 
In its determination, SEC will take into consideration the 
classification or sensitivity of the information, the need to protect 
sources and methods, or status of ongoing law enforcement and 
intelligence community investigations or operations.
    (f) Reconsideration. (1) Within 7 calendar days after the date of 
the vetting official's notification, the contractor or prospective 
subcontractor that has not passed vetting may request in writing to the 
vetting official that the Agency reconsider the vetting determination. 
The request should include any written explanation, legal documentation 
and any other relevant written material for reconsideration.
    (2) Within 7 calendar days after the vetting official receives the 
request for reconsideration, the Agency will determine whether the 
contractor's additional information warrants a revised decision.
    (3) The Agency's determination of whether reconsideration is 
warranted is final.
    (g) A notification that the contractor has passed vetting does not 
constitute any other approval under this contract.
    (h) The request for task or delivery order proposals will identify 
whether the order is subject to vetting. The following are the 
procedures for vetting orders under this contract. Note that the term 
``awardee'' as used below refers to a contractor under multiple-award 
indefinite-delivery contracts, consistent with the use of the term in 
(48 CFR) FAR 16.505(b):
    (1) The contracting officer will notify the awardees when to 
complete and submit the USAID Partner Information Form to the vetting 
official named in the request for order proposals. Note: Awardees who 
submit using non-secure methods of transmission do so at their own risk.
    (2) The awardee must notify proposed subcontractors of this 
requirement when the subcontractors are subject to vetting.
    (3) The fair opportunity process proceeds separately from vetting. 
Vetting is conducted independently from any discussions the contracting 
officer may have with an awardee. The awardee and any subcontractor 
subject to vetting must not provide vetting information to other than 
the vetting official identified in the request for order proposal. The 
awardee and any subcontractor subject to vetting will communicate only 
with the vetting official regarding their vetting submission(s) and not 
with any other USAID or USG personnel, including the contracting officer 
or his/her representatives.
    (4)(i) The vetting official notifies the awardee that it:
    (A) Has passed vetting,
    (B) Has not passed vetting, or
    (C) Must provide additional information, and resubmit the USAID 
Partner Information Form with the additional information within the 
number of days the vetting official specified in the notification.
    (ii) The vetting official will include in the notification any 
information that USAID's Office of Security (SEC) determines releasable. 
In its determination, SEC will take into consideration the 
classification or sensitivity of the information, the need to protect 
sources and methods, or status of ongoing law enforcement and 
intelligence community investigations or operations.
    (5) Reconsideration. (i) Within 7 calendar days after the date of 
the vetting official's notification, an awardee that has not passed 
vetting may request in writing to the vetting official that the Agency 
reconsider the vetting determination. The request should include any 
written explanation, legal documentation and any other relevant written 
material for reconsideration.
    (ii) Within 7 calendar days after the vetting official receives the 
request for reconsideration, the Agency will determine whether the 
contractor's additional information warrants a revised decision.
    (iii) The Agency's determination of whether reconsideration is 
warranted is final.
    (6) Revisions to vetting information. (i) Before the order is 
awarded, any awardee who changes key individuals, whether it has 
previously passed vetting or not, must submit a revised USAID Partner 
Information Form to the vetting official. This includes changes to key 
personnel resulting from revisions to the technical proposal.
    (ii) The order vetting official will follow the vetting process in 
paragraph (e) of this clause for any revision of the awardee's Form.
    (7) Award of order. The contracting officer may award an order 
subject to vetting only to an apparently successful awardee that has 
passed vetting for that order.
    (i) When the contractor anticipates awarding a subcontract for which 
consent is required under FAR clause 52.244-2, Subcontracts, the 
subcontract is subject to vetting. The prospective subcontractor must 
submit a USAID Partner Information Form, USAID Form 500-13, to the 
designated vetting official. The contracting officer must

[[Page 73]]

not consent to award of a subcontract to any organization that has not 
passed vetting when required.
    (j) The contractor agrees to incorporate the substance of paragraphs 
(a) through (g) of this clause in all subcontracts under this contract.

                             (End of clause)

    Alternate I (FEB 2012). As prescribed in 716.506(b), substitute 
paragraphs (i) and (j) below for paragraphs (i) and (j) of the basic 
clause:

    (i)(1) When the contractor anticipates awarding a subcontract for 
which consent is required under FAR clause 52.244-2, Subcontracts, the 
subcontract is subject to vetting. The prospective subcontractor must 
submit a USAID Partner Information Form, USAID Form 500-13, to the 
designated vetting official. The contracting officer must not consent to 
award of a subcontract to any organization that has not passed vetting 
when required.
    (2) In addition, prospective subcontractors at any tier providing 
the following classes of items (supplies and services):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

must pass vetting. Contractors must not place subcontracts for these 
classes of items until they receive confirmation from the vetting 
official that the prospective subcontractor has passed vetting.
    (j) The contractor agrees to incorporate the substance of this 
clause in all subcontracts under this contract.

[77 FR 8172, Feb. 14, 2012]



Sec. 752.219-8  Utilization of small business concerns and small 
          disadvantaged business concerns.

    The Foreign Assistance Act calls for USAID to give small businesses 
an opportunity to provide supplies and services for foreign assistance 
projects. To help USAID meet this obligation, the following paragraph is 
to be added to the clause prescribed in FAR 19.708(a):

    USAID small business provision. To permit USAID, in accordance with 
the small business provisions of the Foreign Assistance Act, to give 
small business firms an opportunity to participate in supplying 
equipment supplies and services financed under this contract, the 
Contractor shall, to the maximum extent possible, provide the following 
information to the Office of Small and Disadvantaged Business 
Utilization (OSDBU), USAID, Washington, DC 20523-1414, at least 45 days 
prior to placing any order in excess of the simplified acquisition 
threshold except where a shorter time is requested of, and granted by 
OSDBU:
    (1) Brief general description and quantity of commodities or 
services;
    (2) Closing date for receiving quotations or bids; and
    (3) Address where invitations or specifications may be obtained.

[49 FR 13259, Apr. 3, 1984, as amended at 52 FR 21059, June 4, 1987; 56 
FR 2699, Jan. 24, 1991; 61 FR 39095, July 26, 1996; 62 FR 40469, July 
29, 1997]



Sec. 752.219-70  USAID Mentor-Prot[eacute]g[eacute] Program.

    As prescribed in 719.273-11(a), insert the following provision:

       USAID Mentor-Prot[eacute]g[eacute] Program (July 13, 2007)

    (a) Large and small business are encouraged to participate in the 
USAID Mentor-Prot[eacute]g[eacute] Program (the ``Program''). Mentor 
firms provide eligible small business Prot[eacute]g[eacute]s with 
developmental assistance to enhance their business capabilities and 
ability to obtain Federal contracts.
    (b) Mentor firms are large prime contractors or eligible small 
business capable of providing developmental assistance. 
Prot[eacute]g[eacute] firms are small business as defined in 13 CFR 
parts 121, 124, and 126.
    (c) Developmental assistance is technical, managerial, financial, 
and other mutually beneficial assistance that aids 
Prot[eacute]g[eacute]s. The costs for developmental assistance are not 
chargeable to the contract.
    (d) Firms interested in participating in the Program are encouraged 
to contact the USAID Mentor-Prot[eacute]g[eacute] Program Manager (202-
712-1500) for more information.

                           (End of provision)

[72 FR 32546, June 13, 2007]



Sec. 752.219-71  Mentor requirements and evaluation.

    As prescribed in AIDAR 719.273-11(b), insert the following clause:

           Mentor Requirements and Evaluation (July 13, 2007)

    (a) Mentor and Prot[eacute]g[eacute] firms shall submit an 
evaluation of the overall experience in the Program to OSDBU at the 
conclusion of the mutually agreed upon Program period, the conclusion of 
the contract, or the voluntary withdrawal by either party from the 
Program, whichever occurs first. At the conclusion of each year in the 
Mentor-Prot[eacute]g[eacute]

[[Page 74]]

Program, the Mentor and Prot[eacute]g[eacute] will formally brief the 
USAID Mentor-Prot[eacute]g[eacute] Program Manager regarding Program 
accomplishments under their Mentor-Prot[eacute]g[eacute] Agreement.
    (b) Mentor or Prot[eacute]g[eacute] shall notify OSDBU in writing, 
at least 30 calendar days in advance of the effective date of the firm's 
withdrawal from the Program.

                             (End of clause)

[72 FR 32546, June 13, 2007]



Sec. 752.225-9  Buy American Act--Trade Agreements Act--Balance of 
          Payments Program.

    The clause prescribed by FAR 25.408(a)(2) is not generally included 
in USAID contracts when more stringent source requirements are stated in 
the contract or when inclusion is not appropriate under FAR 25.403, or 
725.403 of this chapter. (See Executive Order 11223, dated May 12, 1965, 
30 FR 6635.) The clause setting forth USAID's source restrictions is 
shown in section 752.225-70.

[49 FR 13259, Apr. 3, 1984, as amended at 54 FR 16122, Apr. 21, 1989; 59 
FR 33447, June 29, 1994; 62 FR 40470, July 29, 1997]



Sec. 752.225-70  Source, origin and nationality requirements.

    The following clause is required as prescribed in 725.704.

         Source, Origin and Nationality Requirements (FEB 1997)

    (a) Except as may be specifically approved by the Contracting 
Officer, all commodities (e.g., equipment, materials, vehicles, 
supplies) and services (including commodity transportation services) 
which will be financed under this contract with U.S. dollars shall be 
procured in accordance with the requirements in 22 CFR part 228, ``Rules 
on Source, Origin and Nationality for Commodities and Services Financed 
by USAID.'' The authorized source for procurement is Geographic Code 000 
unless otherwise specified in the schedule of this contract. Guidance on 
eligibility of specific goods or services may be obtained from the 
Contracting Officer.
    (b) Ineligible goods and services. The Contractor shall not procure 
any of the following goods or services under this contract:
    (1) Military equipment,
    (2) Surveillance equipment,
    (3) Commodities and services for support of police and other law 
enforcement activities,
    (4) Abortion equipment and services,
    (5) Luxury goods and gambling equipment, or
    (6) Weather modification equipment.
    (c) Restricted goods. The Contractor shall not procure any of the 
following goods or services without the prior written approval of the 
Contracting Officer:
    (1) Agricultural commodities,
    (2) Motor vehicles,
    (3) Pharmaceuticals and contraceptive items,
    (4) Pesticides,
    (5) Fertilizer,
    (6) Used equipment, or
    (7) U.S. government-owned excess property.
    If USAID determines that the Contractor has procured any of these 
specific restricted goods under this contract without the prior written 
authorization of the Contracting Officer, and has received payment for 
such purposes, the Contracting Officer may require the contractor to 
refund the entire amount of the purchase.

[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997]



Sec. 752.225-71  Local procurement.

    For use in any USAID contract involving performance overseas.

                      Local Procurement (FEB 1997)

    (a) Local procurement involves the use of appropriated funds to 
finance the procurement of goods and services supplied by local 
businesses, dealers, or producers, with payment normally being in the 
currency of the cooperating country.
    (b) All locally-financed procurements must be covered by source/
origin and nationality waivers as set forth in subpart F of 22 CFR part 
228 except as provided for in 22 CFR 228.40, Local procurement.

[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997; 62 FR 47532, 
Sept. 9, 1997]



Sec. 752.226-1  Determination of status as disadvantaged enterprise.

    As prescribed in 726.7006(a), insert the following provision:

           Disadvantaged Enterprise Representation (APR 1991)

    The offeror/contractor shall submit a representation in the 
following form to the contracting officer:
    (a) Representation. The offeror represents that:
    (1) It [squ] is, [squ] is not a small disadvantaged business.
    (2) It [squ] is, [squ] is not an historically black college or 
university, as designated by the Secretary of Education pursuant to 34 
CFR 608.2.

[[Page 75]]

    (3) It [squ] is, [squ] is not a college or university having a 
student body in which more than 40 percent of the students are Hispanic 
American.
    (4) It [squ] is, [squ] is not a private voluntary organization which 
is controlled by individuals who are socially and economically 
disadvantaged.
    (b) Definitions. (1) Asian Pacific Americans, as used in this 
provision means United States citizens whose origins are in Japan, 
China, the Philippines, Vietnam, Korea, Samoa, Guam, the U.S. Trust 
Territory of the Pacific Islands (Republic of Palau), the Northern 
Mariana Islands, Laos, Kampuchea (Cambodia), Taiwan, Burma, Thailand, 
Malaysia, Indonesia, Singapore, Brunei, Republic of the Marshall 
Islands, or the Federated States of Micronesia.
    (2) Controlled by socially and economically disadvantaged 
individuals means management and daily business are controlled by one or 
more such individuals.
    (3) Native Americans, as used in this provision means American 
Indians, Eskimos, Aleuts, and native Hawaiians.
    (4) Owned by socially and economically disadvantaged individuals 
means at least 51 percent owned by one or more individuals who are both 
socially and economically disadvantaged, or a publicly owned business 
having at least 51 percent of its stock owned by one or more socially 
and economically disadvantaged individuals.
    (5) Small business concern, as used in this provision, means a U.S. 
concern, including its affiliates, that is independently owned and 
operated, not dominant in the field of operation in which it is bidding 
on Government contracts, and qualifies as a small business under the 
criteria and size standards in 13 CFR part 121.
    (6) Small disadvantaged business, as used in this provision, means a 
small business concern that:
    (i) Is at least 51 percent owned by one or more individuals who are 
both socially and economically disadvantaged, or a publicly owned 
business having at least 51 percent of its stock owned by one or more 
socially and economically disadvantaged individuals; and
    (ii) Has its management and daily business controlled by one or more 
such individuals.
    (7) Subcontinent Asian Americans, as used in this provision, means 
United States citizens whose origins are in India, Pakistan, Bangladesh, 
Sri Lanka, Bhutan, or Nepal.
    (c) Qualified groups. The offeror shall presume that socially and 
economically disadvantaged individuals include Black Americans, Hispanic 
Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian 
Americans, and women.

                           (End of provision)

[56 FR 27209, June 13, 1991, as amended at 62 FR 40470, July 29, 1997]



Sec. 752.226-2  Subcontracting with disadvantaged enterprises.

    As prescribed in 726.7007, insert the following clause:

        Subcontracting With Disadvantaged Enterprises (APR 1997)

    Note: This clause does not apply to prime contractors that qualify 
as disadvantaged enterprises as described below.

    (a) Not less than ten (10) percent of the dollar value of this 
contract shall be subcontracted to disadvantaged enterprises as 
described in paragraph (b) of this clause.
    (b) Disadvantaged enterprises are U.S. organizations or individuals 
that are:
    (1) Business concerns (as defined in FAR 19.001) owned and 
controlled by socially and economically disadvantaged individuals;
    (2) Institutions designated by the Secretary of Education, pursuant 
to 34 CFR 608.2, as historically black colleges and universities:
    (3) Colleges and universities having a student body in which more 
than 40 percent of the students are Hispanic American; or
    (4) Private voluntary organizations which are controlled by 
individuals who are socially and economically disadvantaged.
    (c) Definitions. (1) Controlled by socially and economically 
disadvantaged individuals means management and daily business are 
controlled by one or more such individuals.
    (2) Owned by socially and economically disadvantaged individuals 
means at least 51 percent owned by one or more individuals who are both 
socially and economically disadvantaged, or a publicly owned business 
having at least 51 percent of its stock owned by one or more socially 
and economically disadvantaged individuals.
    (3) Socially and economically disadvantaged individuals has the same 
meaning as in FAR 19.001, except that the term also includes women.
    (d) Contractors should require representations from their 
subcontractors regarding their status as a disadvantaged enterprise. 
Contractors acting in good faith may rely on such representations by 
their subcontractors.

                             (End of clause)

[56 FR 27210, June 13, 1991, as amended at 62 FR 40470, July 29, 1997]

[[Page 76]]



Sec. 752.226-3  Limitation on subcontracting.

    As prescribed in 726.7008, insert the following clause:

                Limitations on Subcontracting (JUN 1993)

    By submission of an offer and execution of a contract, the Offeror/
Contractor agrees that in performance of the contract, at least 51 
percent of the cost of contract performance incurred for personnel shall 
be expended for employees of the contractor or employees of other 
disadvantaged enterprises eligible under the terms of 706.302-71. For 
the purposes of this clause, independent contractors hired by the 
contractor shall be considered employees of the contractor.

                             (End of clause)

[58 FR 42255, Aug. 9, 1993, as amended at 62 FR 40470, July 29, 1997]



Sec. 752.227-14  Rights in Data--general.

    As prescribed in 727.409(b), insert the following clause:

                   Rights in Data--General (OCT 2007)

    The following paragraph (d) replaces paragraph (d) of (48 CFR) FAR 
52.227-14 Rights in Data--General.
    (d) Release, publication and use of data. (1) For all data first 
produced or specifically used by the Contractor in the performance of 
this contract in the United States, its territories, or Puerto Rico, the 
Contractor shall have the right to use, release to others, reproduce, 
distribute, or publish such data, except to the extent such data may be 
subject to the Federal export control or national security laws or 
regulations, or unless otherwise provided in this paragraph of this 
clause or expressly set forth in this contract [see paragraph (d)(3) for 
limitations on contracts performed outside of the US].
    (2) The Contractor agrees that to the extent it receives or is given 
access to data necessary for the performance of this contract which 
contain restrictive markings, the Contractor shall treat the data in 
accordance with such markings unless otherwise specifically authorized 
in writing by the Contracting Officer.
    (3) For all data first produced or specifically used by the 
Contractor in the overseas performance of this contract, the Contractor 
shall not release, reproduce, distribute, or publish such data without 
the written permission of the Contracting Officer. The government also 
may require the contractor to assign copyright to the government or 
another party as circumstances warrant or as specifically stated 
elsewhere in the contract.

[72 FR 53164, Sept. 18, 2007]



Sec. 752.228-3  Worker's compensation insurance (Defense Base Act).

    As prescribed in 728.309, the following supplemental coverage is to 
be added to the clause specified in FAR 52.228-3 by the USAID 
contracting officer.

    (a) The Contractor agrees to procure Defense Base Act (DBA) 
insurance pursuant to the terms of the contract between USAID and 
USAID's DBA insurance carrier unless the Contractor has a DBA self 
insurance program approved by the Department of Labor or has an approved 
retrospective rating agreement for DBA.
    (b) If USAID or the contractor has secured a waiver of DBA coverage 
(see AIDAR 728.305-70(a)) for contractor's employees who are not 
citizens of, residents of, or hired in the United States, the contractor 
agrees to provide such employees with worker's compensation benefits as 
required by the laws of the country in which the employees are working, 
or by the laws of the employee's native country, whichever offers 
greater benefits.
    (c) The Contractor further agrees to insert in all subcontracts 
hereunder to which the DBA is applicable, a clause similar to this 
clause, including this sentence, imposing on all subcontractors a like 
requirement to provide overseas workmen's compensation insurance 
coverage and obtain DBA coverage under the USAID requirements contract.

[53 FR 50631, Dec. 16, 1988, as amended at 54 FR 16122, Apr. 21, 1989; 
56 FR 67226, Dec. 30, 1991]



Sec. 752.228-7  Insurance--liability to third persons.

    As prescribed in 728.307-2(c), the following paragraph is to be 
added to the clause specified in FAR 52.228-7 as either paragraph (h) 
(if FAR 52.228-7 Alternate I is not used) or (i) (if FAR 52.228-7 
Alternate I is used):

    ( ) Insurance on private automobiles. If the Contractor or any of 
its employees or their dependents transport or cause to be transported 
(whether or not at contract expense) privately owned automobiles to the 
Cooperating Country, or they or any of them purchase an automobile 
within the Cooperating Country, the Contractor agrees to make certain 
that all such automobiles during such ownership within the Cooperating 
Country will be covered by a paid-up insurance policy issued by a 
reliable company providing the following minimum coverages or such other 
minimum coverages as may be set by the Mission Director, payable in 
United States dollars or its equivalent in the currency of the 
Cooperating Country: injury to persons, $10,000/$20,000; property 
damage, $5,000. The

[[Page 77]]

premium costs for such insurance shall not be a reimbursable cost under 
this contract. Copies of such insurance policies shall be preserved and 
made available as part of the Contractor's records which are required to 
be preserved and made available by the ``Audit and Records--
Negotiation'' clause of this contract.

[53 FR 50632, Dec. 16, 1988, as amended at 54 FR 16122, Apr. 21, 1989; 
62 FR 40470, July 29, 1997]



Sec. 752.228-9  Cargo insurance.

    As prescribed in 728.313(a), the following preface is to be used 
preceding the text of the clause at FAR 52.228-9:

    Preface: To the extent that marine insurance is necessary or 
appropriate under this contract, the contractor shall ensure that U.S. 
marine insurance companies are offered a fair opportunity to bid for 
such insurance. This requirement shall be included in all subcontracts 
under this contract.

[53 FR 50632, Dec. 16, 1988]



Sec. 752.228-70  Medical Evacuation (MEDEVAC) Services.

    As prescribed in 728.307-70, for use in all contracts requiring 
performance overseas:

            Medical Evacuation (MEDEVAC) Services (JUL 2007)

    (a) Contractor must provide MEDEVAC service coverage to all U.S. 
citizen, U.S. resident alien, and Third Country National employees and 
their authorized dependents (hereinafter ``individual'') while overseas 
under a USAID-financed direct contract. USAID will reimburse reasonable, 
allowable, and allocable costs for MEDEVAC service coverage incurred 
under the contract. The Contracting Officer will determine the 
reasonableness, allowability, and allocability of the costs based on the 
applicable cost principles and in accordance with cost accounting 
standards.
    (b) Exceptions. (i) The Contractor is not required to provide 
MEDEVAC insurance to eligible employees and their dependents with a 
health program that includes sufficient MEDEVAC coverage as approved by 
the Contracting Officer.
    (ii) The Mission Director may make a written determination to waive 
the requirement for such coverage. The determination must be based on 
findings that the quality of local medical services or other 
circumstances obviate the need for such coverage for eligible employees 
and their dependents located at post.
    (c) Contractor must insert a clause similar to this clause in all 
subcontracts that require performance by contractor employees overseas.

[59 FR 33447, June 29, 1994, as amended at 72 FR 19669, Apr. 19, 2007]



Sec. 752.229-70  Federal, state and local taxes.

    For contracts involving performance overseas the clauses prescribed 
in FAR 29.401-3 or 29.401-4 may be modified to specify that the taxes 
referred to are United States taxes.



Sec. 752.231-71  Salary supplements for HG employees.

    As prescribed in 731.205-71, for use in all contracts with a 
possible need or services of a HG employee. The clause should also be 
inserted in all subsequent sub-contracts.

             Salary Supplements for HG Employees (OCT 1998)

    (a) Salary supplements are payments made that augment an employee's 
base salary or premiums, overtime, extra payments, incentive payment and 
allowances for which the HG employee would qualify under HG rules or 
practice for the performance of his/hers regular duties or work 
performed during his/hers regular office hours. Per diem, invitational 
travel, honoraria and payment for work carried out outside of normal 
working hours are not considered to be salary supplements.
    (b) Salary supplements to HG Employees are not allowable without the 
written approval of the Contracting Officer.

[64 FR 16649, Apr. 6, 1999]



Sec. 752.232-70  Letter of credit advance payment.

    As required by 732.406-73 insert the following clause in contracts 
being paid by Letter of Credit.

               Letter of Credit Advance Payment (OCT 1989)

    (a) Payment under this contract shall be by means of a Letter of 
Credit (LOC) in accordance with the terms and conditions of the LOC and 
any instructions issued by the USAID Office of Financial Management, 
Cash Management and Payment Division (FM/CMP).
    (b) As long as the LOC is in effect, the terms and conditions of the 
LOC and any instructions issued by FM/CMP constitute the payment 
conditions of this contract, superseding and taking precedence over any 
other clause of this contract concerning payment.

[[Page 78]]

    (c) If the LOC is revoked, payment may be made on a cost-
reimbursement basis, in accordance with the other clauses of this 
contract concerning payment.
    (d) Revocation of the LOC is at the discretion of FM/CMP after 
consultation with the contracting officer. Notification to the 
contractor of revocation must be in writing and must specify the reasons 
for such action. The contractor may appeal any such revocation to the 
contracting officer, in accordance with the Disputes clause of this 
contract. Pending final decision, payments under the contact will be in 
accordance with paragraph (c) of this clause.

[49 FR 13259, Apr. 3, 1984, as amended at 49 FR 33668, Aug. 24, 1984; 54 
FR 46391, Nov. 3, 1989; 56 FR 67226, Dec. 30, 1991; 59 FR 33447, June 
29, 1994]



Sec. 752.242-70  Periodic progress reports.

    As prescribed in 742.1170-3(c), insert the following clause in 
contracts for which periodic progress reports are required from the 
contractor. The term ``contract'' shall be interpreted as ``task order'' 
or ``delivery order'' when this clause is used in an indefinite-delivery 
contract.

                  Periodic Progress Reports (OCT 2007)

    (a) The contractor shall prepare and submit progress reports as 
specified in the contract schedule. These reports are separate from the 
interim and final performance evaluation reports prepared by USAID in 
accordance with FAR 42.15 and internal Agency procedures, but they may 
be used by USAID personnel or their authorized representatives when 
evaluating the contractor's performance.
    (b) During any delay in furnishing a progress report required under 
this contract, the contracting officer may withhold from payment an 
amount not to exceed US$25,000 (or local currency equivalent) or 5 
percent of the amount of this contract, whichever is less, until such 
time as the contractor submits the report or the contracting officer 
determines that the delay no longer has a detrimental effect on the 
Government's ability to monitor the contractor's progress.

[72 FR 53164, Sept. 18, 2007]



Sec. 752.245-70  Government property--USAID reporting requirements.

    In response to a GAO audit recommendation, USAID contracts, except 
for those for commercial items, must contain the following preface and 
reporting requirement as additions to the appropriate Government 
Property clause prescribed by FAR 45.106.

    Preface: to be inserted preceding the text of the FAR clause.
    The term Government furnished property wherever it may appear in the 
following clause, shall mean (1) non-expendable personal property owned 
by or leased to the U.S. Government and furnished to the contractor and 
(2) personal property furnished either prior to or during the 
performance of this contract by any U.S. Government accountable officer 
to the contractor for use in connection with performance of this 
contract and identified by such officer as accountable. The term 
government property, wherever it may appear in the following clause, 
shall mean government-furnished property and non-expendable personal 
property title to which vests in the U.S. Government under this 
contract. Non-expendable property, for purposes of this contract, is 
defined as property which is complete in itself, does not lose its 
identity or become a component part of another article when put into 
use; is durable, with an expected service life of two years or more; and 
which has a unit cost of more than $500.
    Reporting Requirement: to be inserted following the text of the FAR 
clause.
    Reporting Requirements: The contractor will submit an annual report 
on all non-expendable property in a form and manner acceptable to USAID 
substantially as follows:

      Annual Report of Government Property in Contractor's Custody
        [(Name of contractor) as of (end of contract year), 19xx]
------------------------------------------------------------------------
                                              Furniture and
                                              furnishings--      Other
              Motor vehicles               ------------------ nonexpend-
                                                     Living      able
                                            Office  quarters   property
------------------------------------------------------------------------
A. Value of property as of last report....  ......  ........  ..........
B. Transactions during this reporting       ......  ........  ..........
 period...................................
1. Acquisitions (add):
  a. Purchased by contractor \1\..........  ......  ........  ..........
  b. Transferred from USAID \2\...........  ......  ........  ..........
  c. Transferred from others, without       ......  ........  ..........
   reimbursement \3\......................
2. Disposals (deduct):
  a. Returned to USAID....................  ......  ........  ..........
  b. Transferred to USAID--contractor       ......  ........  ..........
   purchased..............................
  c. Transferred to other Government        ......  ........  ..........
   agencies \3\...........................
  d. Other disposals \3\..................  ......  ........  ..........
C. Value of property as of reporting date.  ......  ........  ..........
D. Estimated average age of contractor      ......  ........  ..........
 held property............................
------------------------------------------------------------------------
                                             Years    Years     Years
------------------------------------------------------------------------
\1\ Property which is complete in itself, does not lose its identity or
  become a component part of another article when put into use; is
  durable, with an expected service life of two years or more; and which
  has a unit cost of more than $500.

[[Page 79]]

 
\2\ Government furnished property listed in this Contract as
  nonexpendable.
\3\ Explain if transactions were not processed through or otherwise
  authorized by USAID.

                    Property Inventory Verifications

    I attest that (1) physical inventories of Government property are 
taken not less frequently than annually; (2) the accountability records 
maintained for Government property in our possession are in agreement 
with such inventories; and (3) the total of the detailed accountability 
records maintained agrees with the property value shown opposite line C 
above, and the estimated average age of each category of property is as 
cited opposite line D above.
________________________________________________________________________

                          Authorized Signature

[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997]



Sec. 752.245-71  Title to and care of property.

    As prescribed in 745.106(a), the following clause shall be included 
in all contracts when the contractor will acquire property under the 
contract for use overseas and the contract funds were obligated under a 
Strategic Objective agreement (or similar agreement) with the 
cooperating country.

                Title to and Care of Property (APR 1984)

    (a) Title to all non-expendable property purchased with contract 
funds under this contract and used in the Cooperating Country, shall at 
all times be in the name of the Cooperating Government, or such public 
or private agency as the Cooperating Government may designate, unless 
title to specified types or classes of non-expendable property is 
reserved to USAID under provisions set forth in the schedule of this 
contract; but all such property shall be under the custody and control 
of Contractor until the owner of title directs otherwise, or completion 
of work under this contract or its termination, at which time custody 
and control shall be turned over to the owner of title or disposed of in 
accordance with its instructions. All performance guaranties and 
warranties obtained from suppliers shall be taken in the name of the 
title owner. (Non-expendable property is property which is complete in 
itself, does not lose its identity or become a component part of another 
article when put into use; is durable, with an expected service life of 
two years or more; and which has a unit cost of $500 of more.)
    (b) Contractor shall prepare and establish a program, to be approved 
by the Mission, for the receipt, use, maintenance, protection, custody, 
and care of non-expendable property for which it has custodial 
responsibility, including the establishment of reasonable controls to 
enforce such program.
    (c)(1) For non-expendable property to which title is reserved to the 
U.S. Government under provisions set forth in the schedule of this 
contract, Contractor shall submit an annual report on all non-expendable 
property under its custody as required in the clause of this contract 
entitled ``Government Property''.
    (2) For non-expendable property titled to the Cooperating 
Government, the Contractor shall, within 90 days after completion of 
this contract, or at such other date as may be fixed by the Contracting 
Officer, submit an inventory schedule covering all items of non-
expendable property under its custody, which have not been consumed in 
the performance of this contract. The Contractor shall also indicate 
what disposition has been made of such property.

[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997; 64 
FR 5009, Feb. 2, 1999]



Sec. 752.247-70  Preference for privately owned U.S.-flag commercial 
          vessels.

    As prescribed in 747.507, insert the following clause:

 Preference for Privately Owned U.S.-Flag Commercial Vessels (OCT 1996)

    (a) Under the provisions of the Cargo Preference Act of 1954 (46 
U.S.C. 1241(b)) at least 50 percent of the gross tonnage of equipment, 
materials, or commodities financed by USAID, or furnished without 
provision for reimbursement, or at least 75 percent of the gross tonnage 
of cargo moving under P.L. 480 financed by the U.S. Department of 
Agriculture, that may be transported in ocean vessels (computed 
separately for dry bulk carriers, dry cargo liners, and tankers) shall 
be transported in privately owned U.S.-flag commercial vessels.
    (b) In accordance with USAID regulations and consistent with the 
regulations of the Maritime Administration, USAID applies Cargo 
Preference requirements on the basis of programs or activities that 
generally include more than one contract. Thus, the amount of cargo 
fixed on privately owned U.S.-flag vessels under this contract may be 
more or less than the required 50 or 75 percent, depending on current 
compliance with Cargo Preference requirements. If freight under the 
contract is fixed on a U.S. flag vessel, Alternate I of this clause 
shall apply.
    (c)(1) The contractor shall submit one legible copy of a rated on-
board ocean bill of lading for each shipment to both the Division of 
National Cargo, Office of Cargo Preference, Maritime Administration, 
U.S. Department of Transportation, Washington, DC

[[Page 80]]

20590, and the Transportation Division, Office of Acquisition and 
Assistance, USAID, Washington, DC 20523-7900.
    (2) The contractor shall furnish these bill of lading copies within 
20 working days of the date of loading for shipments originating in the 
United States, or within 30 working days for shipments originating 
outside the United States. Each bill of lading copy shall contain the 
following information:
    (i) Sponsoring U.S. Government agency.
    (ii) Name of vessel.
    (iii) Vessel flag registry.
    (iv) Date of loading.
    (v) Port of loading.
    (vi) Port of final discharge.
    (vii) Description of commodity.
    (viii) Gross weight in pounds and cubic feet if available.
    (ix) Total ocean freight revenue in U.S. dollars.

                               Alternate I

    (d) If freight is fixed on a U.S. flag vessel, except as provided in 
paragraph (e) of this clause, the contractor shall use privately owned 
U.S. flag commercial vessels, and no others, in the ocean transportation 
of any supplies to be furnished under this contract.
    (e) If such vessels are not available, or not available at rates 
that are fair and reasonable for privately owned U.S. flag commercial 
vessels, the Contractor shall notify the contracting officer and request 
either authorization to ship in foreign-flag vessels or designation of 
available U.S.-flag vessels. If the Contractor is authorized in writing 
by the Contracting Officer to ship the supplies in foreign-flag vessels, 
the contract price shall be equitably adjusted to reflect the difference 
in costs of shipping the suppliers in privately owned U.S.-flag 
commercial vessels and foreign-flag vessels.

[64 FR 5009, Feb. 2, 1999, as amended at 72 FR 19670, Apr. 19, 2007]

             Subpart 752.70_Texts of USAID Contract Clauses



Sec. 752.7000  Scope of subpart.

    Subpart 752.70 contains the text of USAID-specific contract clauses 
for which there is no FAR equivalent. The clauses in this subpart do not 
apply to contracts for personal services. For personal service contract 
clauses see AIDAR Appendix D--Direct USAID Contracts with U.S. Citizens 
or U.S. Residents for Personal Services Abroad and AIDAR Appendix J--
Direct USAID Contracts with Cooperating Country Nationals and with Third 
Country Nationals for Personal Services Abroad.

[49 FR 13259, Apr. 3, 1984, as amended at 57 FR 5237, Feb. 13, 1992]



Sec. 752.7001  Biographical data.

    The following clause is to be included in all USAID cost 
reimbursement contracts.

                      Biographical Data (JUL 1997)

    The Contractor agrees to furnish to the Contracting Officer on USAID 
Form 1420-17, ``Contractor Employee Biographical Data Sheet'', 
biographical information on the following individuals to be employed in 
the performance of the contract: (1) All individuals to be sent outside 
the United States, or (2) any employees designated as ``key personnel''. 
Biographical data in the form usually maintained by the Contractor on 
the other individuals employed under the contract shall be available for 
review by USAID at the Contractor's headquarters. A supply of USAID Form 
1420-17 will be provided with this contract. The Contractor may 
reproduce additional copies as necessary.

[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997; 62 FR 47532, 
Sept. 9, 1997]



Sec. 752.7002  Travel and transportation.

    For use in cost reimbursement contracts performed in whole or in 
part overseas.

                  Travel and Transportation (JAN 1990)

    (a) General. The Contractor will be reimbursed for reasonable, 
allocable and allowable travel and transportation expenses incurred 
under and for the performance of this contract. Determination of 
reasonableness, allocability and allowability will be made by the 
Contracting Officer based on the applicable cost principles, the 
Contractor's established policies and procedures, USAID's established 
policies and procedures for USAID direct-hire employees, and the 
particular needs of the project being implemented by this contract. The 
following paragraphs provide specific guidance and limitations on 
particular items of cost.
    (b) International travel. For travel to and from post of assignment 
the Contractor shall be reimbursed for travel costs and travel 
allowances of travelers from place of residence in the United States (or 
other location provided that the cost of such travel does not exceed the 
cost of the travel from the employee's residence in the United States) 
to the post of duty in the Cooperating Country and return to place of 
residence in the United States (or other location provided that the cost 
of such travel does not exceed

[[Page 81]]

the cost of travel from the post of duty in the Cooperating Country to 
the employee's residence) upon completion of services by the individual. 
Reimbursement for travel will be in accordance with the applicable cost 
principles and the provisions of this contract, and will be limited to 
the cost of travel by the most direct and expeditious route. If a 
regular employee does not complete one full year at post of duty (except 
for reasons beyond his/her control), the costs of going to and from the 
post of duty for that employee and his/her dependents are not 
reimbursable hereunder. If the employee serves more than one year but 
less than the required service in the Cooperating Country (except for 
reasons beyond his/her control) the costs of going to the post of duty 
are reimbursable hereunder but the costs of going from post of duty to 
the employee's permanent, legal place of residence at the time he or she 
was employed for work under this contract or other location as approved 
by the Contracting Officer are not reimbursable under this contract for 
the employee and his/her dependents. When travel is by economy class 
accommodations, the Contractor will be reimbursed for the cost of 
transporting up to 22 pounds of accompanied personal baggage per 
traveler in addition to that regularly allowed with the economy ticket 
provided that the total number of pounds of baggage does not exceed that 
regularly allowed for first class travelers. Travel allowances for 
travelers shall not be in excess of the rates authorized in the 
Standardized Regulations (Government Civilians, Foreign Areas)--
hereinafter referred to as the Standardized Regulations--as from time to 
time amended, for not more than the travel time required by scheduled 
commercial air carrier using the most expeditious route. One stopover en 
route for a period of not to exceed 24 hours is allowable when the 
traveler uses economy class accommodations for a trip of 14 hours or 
more of scheduled duration. Such stopover shall not be authorized when 
travel is by indirect route or is delayed for the convenience of the 
traveler. Per diem during such stopover shall be paid in accordance with 
the established practice of the Contractor but not to exceed the amounts 
stated in the Standardized Regulations.
    (c) Local travel. Reimbursement for local travel in connection with 
duties directly referable to the contract shall not be in excess of the 
rates established by the Mission Director for the travel costs of 
travelers in the Cooperating Country. In the absence of such established 
rates the Contractor shall be reimbursed for actual travel costs of 
travelers in the Cooperating Country, if not provided by the Cooperating 
Government or the Mission, including travel allowances at rates not in 
excess of those prescribed by the Standardized Regulations.
    (d) Travel for consultation. The Contractor shall be reimbursed for 
the round trip of the Contractor's Chief of Party in the Cooperating 
Country or other designated Contractor employee or consultant in the 
Cooperating Country performing services required under this Contract, 
for travel from the Cooperating Country to the Contractor's office in 
the United States or to USAID/Washington for consultation and return on 
occasions deemed necessary by the Contractor and approved in advance, in 
writing, by the Contracting Officer or the Mission Director.
    (e) Special international travel and third country travel. For 
special travel which advances the purpose of the contract, which is not 
otherwise provided by the Cooperating Government, and with the prior 
written approval of the Contracting Officer or the Mission Director, the 
Contractor shall be reimbursed for--
    (i) The travel cost of travelers other than between the United 
States and the Cooperating Country and for local travel within other 
countries and
    (ii) Travel allowance for travelers while in travel status and while 
performing services hereunder in such other countries at rates not in 
excess of those prescribed by the Standardized Regulations.
    (f) Indirect travel for personal convenience. When travel is 
performed by an indirect route for the personal convenience of the 
traveler, the allowable costs of such travel will be computed on the 
basis of the cost of allowable air fare via the direct usually traveled 
route. If such costs include fares for air or ocean travel by foreign 
flag carriers, approval for indirect travel by such foreign flag 
carriers must be obtained from the Contracting Officer or the Mission 
Director before such travel is undertaken, otherwise only that portion 
of travel accomplished by United States-flag carriers will be 
reimbursable within the above limitation of allowable costs.
    (g) Limitation on travel by dependents. Travel costs and allowances 
will be allowed only for dependents of regular employees and such costs 
shall be reimbursed for travel from place of abode to assigned station 
in the Cooperating Country and return, only if dependent remains in the 
country for at least 9 months or one-half of the required tour of duty 
of the regular employee responsible for such dependent, whichever is 
greater. If the dependent is eligible for educational travel pursuant to 
the ``Differential and Allowances'' clause of this contract, time spent 
away from post resulting from educational travel will be counted as time 
at post.
    (h) Delays en route. The Contractor may grant to travelers under 
this contract reasonable delays en route while in travel status when 
such delays are caused by events

[[Page 82]]

beyond the control of such traveler or Contractor. It is understood that 
if delay is caused by physical incapacitation, personnel shall be 
eligible for such sick leave as provided under the ``Leave and 
Holidays'' clause of this contract.
    (i) Travel by privately owned automobile. The Contractor shall be 
reimbursed for the cost of travel performed by a regular employee in 
his/her privately owned automobile at a rate not to exceed that 
authorized in the Federal Travel Regulations plus authorized per diem 
for the employee and for each of the authorized dependents traveling in 
the automobile, if the automobile is being driven to or from the 
Cooperating Country as authorized under the contract, provided that the 
total cost of the mileage and the per diem paid to all authorized 
travelers shall not exceed the total constructive cost of fare and 
normal per diem by all authorized travelers by surface common carrier or 
authorized air fare, whichever is less.
    (j) Emergency and irregular travel and transportation. Emergency 
transportation costs and travel allowances while en route, as provided 
in this section will also be reimbursed not to exceed amounts authorized 
by the Foreign Service Travel Regulations for USAID-direct hire 
employees in like circumstances under the following conditions:
    (1) The costs of going from post of duty in the Cooperating Country 
to the employee's permanent, legal place of residence at the time he or 
she was employed for work under this contract or other location for 
Contractor employees and dependents and returning to the post of duty, 
when the Contractor's Chief of Party, with the concurrence of the 
Contracting Officer or Mission Director makes a written determination 
that such travel is necessary for one of the reasons specified in 
subparagraphs (j)(1) (i) and (ii) of this section. A copy of the written 
determination shall be furnished to the Contracting Officer.
    (i) Need for medical care beyond that available within the area to 
which the employee is assigned, or serious effect on physical or mental 
health if residence is continued at assigned post of duty, subject in 
either case, to the limitations stated in the clause of this contract 
entitled ``Personnel--Physical Fitness of Employee and Dependents.'' The 
Mission Director may authorize a medical attendant to accompany the 
employee at contract expense if, based on medical opinion, such an 
attendant is necessary.
    (ii) Death, or serious illness or injury of a member of the 
immediate family of the employee or the immediate family of the 
employee's spouse.
    (2) When, for any reason, the Mission Director determines it is 
necessary to evacuate the Contractor's entire team (employees and 
dependents) or Contractor dependents only, the Contractor will be 
reimbursed for travel and transportation expenses and travel allowance 
while en route, for the cost of the individuals going from post of duty 
in the Cooperating Country to the employee's permanent, legal place of 
residence at the time he or she was employed for work under this 
contract or other approved location. The return of such employees and 
dependents may also be authorized by the Mission Director when, in his/
her discretion, he/she determines it is prudent to do so.
    (3) The Mission Director may also authorize emergency or irregular 
travel and transportation in other situations, when in his/her opinion, 
the circumstances warrant such action. The authorization shall include 
the kind of leave to be used and appropriate restrictions as to time 
away from post, transportation of personal and/or household effects, 
etc. Requests for such emergency travel shall be submitted through the 
Contractor's Chief of Party.
    (k) Home leave travel. To the extent that home leave has been 
authorized as provided in the ``Leave and Holidays'' clause of this 
contract, the cost of travel for home leave is reimbursable for travel 
costs and travel allowances of travelers from the post of duty in the 
Cooperating Country to place of residence in the United States (or other 
location provided that the cost of such travel does not exceed the cost 
of travel to the employee's residence in the United States) and return 
to the post of duty in the Cooperating Country. Reimbursement for travel 
will be in accordance with the applicable cost principles and the 
provisions of this contract, and will be limited to the cost of travel 
by the most direct and expeditious route. When travel is by economy 
class accommodations, the Contractor will be reimbursed for the cost of 
transporting up to 22 pounds of accompanied personal baggage per 
traveler in addition to that regularly allowed with the economy ticket 
provided that the total number of pounds of baggage does not exceed that 
regularly allowed for first class travelers. Travel allowances for 
travelers shall not be in excess of the rates authorized in the 
Standardized Regulations as from time to time amended, for not more than 
the travel time required by scheduled commercial air carrier using the 
most expeditious route. One stopover en route for a period of not to 
exceed 24 hours is allowable when the traveler uses economy class 
accommodations for a trip of 14 hours or more of scheduled duration. 
Such stopover shall not be authorized when travel is by indirect route 
or is delayed for the convenience of the traveler. Per diem during such 
stopover shall be paid in accordance with the established practice of 
the Contractor but not to exceed the amounts stated in the Standardized 
Regulations.
    (l) Rest and recuperation travel. The Contractor shall be reimbursed 
for the cost of travel performed by regular employees and

[[Page 83]]

dependents for purposes of rest and recuperation provided that such 
reimbursement does not exceed that authorized for USAID direct hire 
employees, and provided further that no reimbursement will be made 
unless approval is given by the Contractor's Chief of party.
    (m) Transportation of motor vehicles, personal effects and household 
goods. (1) Transportation, including packing and crating costs, will be 
paid for shipping from the point of origin in the United States (or 
other location as approved by the Contracting Officer) to post of duty 
in the Cooperating Country and return to point of origin in the United 
States (or other location as approved by the Contracting Officer) of one 
privately-owned vehicle for each regular employee, personal effects of 
travelers and household goods of each regular employee not to exceed the 
limitations in effect for such shipments for USAID direct hire employees 
in accordance with the Foreign Service Travel Regulations as in effect 
when shipment is made.
    (2) If a regular employee does not complete one full year at post of 
duty (except for reasons beyond his/her control), the costs for 
transportation of vehicles, effects and goods to and from the post of 
duty are not reimbursable hereunder. If the employee serves more than 
one year but less than the required service in the Cooperating Country 
(except for reasons beyond his/her control) the costs for transportation 
of vehicles, effects and goods to the post of duty are reimbursable 
hereunder but the costs for transportation of vehicles, effects and 
goods from post of duty to the employee's permanent, legal place of 
residence at the time he or she was employed for work under this 
contract or other location as approved by the Contracting Officer are 
not reimbursable under this contract.
    (3) The cost of transporting motor vehicles and household goods 
shall not exceed the cost of packing, crating and transportation by 
surface. In the event that the carrier does not require boxing or 
crating of motor vehicles for shipment to the Cooperating Country, the 
cost of boxing or crating is not reimbursable. The transportation of a 
privately-owned motor vehicle for a regular employee may be authorized 
by the Contractor as replacement of the last such motor vehicle shipped 
under this contract for the employee when the Mission Director or his/
her designee determines in advance and so notifies the Contractor in 
writing that the replacement is necessary for reasons not due to the 
negligence or malfeasance of the regular employee. The determination 
shall be made under the same rules and regulations that apply to Mission 
employees.
    (n) Unaccompanied baggage. Unaccompanied baggage is considered to be 
those personal belongings needed by the traveler immediately upon 
arrival at destination. To permit the arrival of effects to coincide 
with the arrival of regular employees and dependents, consideration 
should be given to advance shipments of unaccompanied baggage. The 
Contractor will be reimbursed for costs of shipment of unaccompanied 
baggage (in addition to the weight allowance for household effects) not 
to exceed the limitations in effect for USAID direct hire employees in 
accordance with the Foreign Service Travel Regulations as in effect when 
shipment is made.
    This unaccompanied baggage may be shipped as air freight by the most 
direct route between authorized points of origin and destination 
regardless of the modes of travel used. This provision is applicable to 
home leave travel and to short-term employees when these are authorized 
by the terms of this contract.
    (o) Storage of household effects. The cost of storage charges 
(including packing, crating, and drayage costs) in the U.S. of household 
goods of regular employees will be permitted in lieu of transportation 
of all or any part of such goods to the Cooperating Country under 
paragraph (m) above provided that the total amount of effects shipped to 
the Cooperating Country or stored in the U.S. shall not exceed the 
amount authorized for USAID direct hire employees under the Uniform 
Foreign Service Travel Regulations.
    (p) International ocean transportation. (1) Flag eligibility 
requirements for ocean carriage are covered by the ``Source and 
Nationality Requirements'' clause of this contract.
    (i) Transportation of things. Where U.S. flag vessels are not 
available, or their use would result in a significant delay, the 
Contractor may obtain a release from this requirement from the 
Transportation Division, Office of Acquisition and Assistance, U.S. 
Agency for International Development, Washington, DC. 20523-1419, or the 
Mission Director, as appropriate, giving the basis for the request.
    (ii) Transportation of persons. Where U.S. flag vessels are not 
available, or their use would result in a significant delay, the 
Contractor may obtain a release from this requirement from the 
Contracting Officer or the Mission Director, as appropriate.
    (2) Transportation of foreign-made vehicles. Reimbursement of the 
costs of transporting a foreign-made motor vehicle will be made in 
accordance with the provisions of the Foreign Service Travel 
Regulations.
    (3) Reduced rates on U.S. flag carriers. Reduced rates on United 
States flag carriers are in effect for shipments of household goods and 
personal effects of USAID contract personnel. These reduced rates are 
available provided the shipper states on the bill of lading that the 
cargo is ``Personal property-not for resale-payment of freight charges 
is at U.S. Government (USAID) expense and any special or diplomatic 
discounts accorded this type cargo are applicable.'' The Contractor

[[Page 84]]

will not be reimbursed for shipments of household goods or personal 
effects in an amount in excess of the reduced rates available in 
accordance with the foregoing.

                             (End of clause)

[55 FR 6803, Feb. 27, 1990, as amended at 56 FR 2699, Jan. 24, 1991; 72 
FR 19670, Apr. 19, 2007]



Sec. 752.7003  Documentation for payment.

    The following clause is required in all USAID direct contracts, 
excluding fixed price contracts:

                  Documentation for Payment (NOV 1998)

    (a) Claims for reimbursement or payment under this contract must be 
submitted to the Paying Office indicated in the schedule of this 
contract. The cognizant technical officer (CTO) is the authorized 
representative of the Government to approve vouchers under this 
contract. The Contractor must submit either paper or fax versions of the 
SF-1034--Public Voucher for Purchases and Services Other Than Personal. 
Each voucher shall be identified by the appropriate USAID contract 
number, in the amount of dollar expenditures made during the period 
covered.
    (1) The SF 1034 provides space to report by line item for products 
or services provided. The form provides for the information to be 
reported with the following elements:

                                               Total Expenditures
                                       [Document Number: XXX-X-XX-XXXX-XX]
----------------------------------------------------------------------------------------------------------------
                                                                            Amt. vouchered to    Amt. vouchered
              Line item No.                          Description                   date           this period
----------------------------------------------------------------------------------------------------------------
001.....................................  Product/Service Desc. for Line             $XXXX.XX          $ XXXX.XX
                                           Item 001.
002.....................................  Product/Service Desc. for Line              XXXX.XX            XXXX.XX
                                           Item 002.
                                                                           -------------------------------------
      Total.............................  ................................            XXXX.XX            XXXX.XX
----------------------------------------------------------------------------------------------------------------

    (2) The fiscal report shall include the following certification 
signed by an authorized representative of the Contractor:

    The undersigned hereby certifies to the best of my knowledge and 
belief that the fiscal report and any attachments have been prepared 
from the books and records of the Contractor in accordance with the 
terms of this contract and are correct: the sum claimed under this 
contract is proper and due, and all the costs of contract performance 
(except as herewith reported in writing) have been paid, or to the 
extent allowed under the applicable payment clause, will be paid 
currently by the Contractor when due in the ordinary course of business; 
the work reflected by these costs has been performed, and the quantities 
and amounts involved are consistent with the requirements of this 
Contract; all required Contracting Officer approvals have been obtained; 
and appropriate refund to USAID will be made promptly upon request in 
the event of disallowance of costs not reimbursable under the terms of 
this contract.

BY:_____________________________________________________________________

TITLE:__________________________________________________________________

DATE:___________________________________________________________________
    (b) Local currency payment. The Contractor is fully responsible for 
the proper expenditure and control of local currency, if any, provided 
under this contract. Local currency will be provided to the Contractor 
in accordance with written instructions provided by the Mission 
Director. The written instructions will also include accounting, 
vouchering, and reporting procedures. A copy of the instructions shall 
be provided to the Contractor's Chief of Party and to the Contracting 
Officer. The costs of bonding personnel responsible for local currency 
are reimbursable under this contract.
    (c) Upon compliance by the Contractor with all the provisions of 
this contract, acceptance by the Government of the work and final 
report, and a satisfactory accounting by the Contractor of all 
Government-owned property for which the Contractor had custodial 
responsiblity, the Government shall promptly pay to the Contractor any 
moneys (dollars or local currency) due under the completion voucher. The 
Government will make suitable reduction for any disallowance or 
indebtedness by the Contractor by applying the proceeds of the voucher 
first to such deductions and next to any unliquidated balance of advance 
remaining under this contract.
    (d) The Contractor agrees that all approvals of the Mission Director 
and the Contracting Officer which are required by the provisions of this 
contract shall be preserved and made available as part of the 
Contractor's records which are required to be presented and made 
available by the clause of this contract entitled ``Audit and Records--
Negotiation''.

[53 FR 6829, Mar. 3, 1988, as amended at 64 FR 5009, Feb. 2, 1999]

[[Page 85]]



Sec. 752.7004  Emergency locator information.

    The following clause is to be included in all contracts requiring 
travel overseas.

                Emergency Locator Information (JUL 1997)

    The Contractor agrees to provide the following information to the 
Mission Administrative Officer on or before the arrival in the host 
country of every contract employee or dependent:
    (1) The individual's full name, home address, and telephone number.
    (2) The name and number of the contract, and whether the individual 
is an employee or dependent.
    (3) The contractor's name, home office address, and telephone 
number, including any after-hours emergency number(s), and the name of 
the contractor's home office staff member having administrative 
responsibility for the contract.
    (4) The name, address, and telephone number(s) of each individual's 
next of kin.
    (5) Any special instructions pertaining to emergency situations such 
as power of attorney designees or alternate contact persons.

[62 FR 40470, July 29, 1997; 62 FR 45334, Aug. 27, 1997]



Sec. 752.7005  Submission requirements for development experience 
          documents.

    The following clause shall be included in all USAID professional/
technical contracts in which development experience documents are likely 
to be produced.

 Submission Requirements for Development Experience Documents (OCT 1997)

    (a) Contract reports and information/intellectual products. (1) The 
Contractor shall submit to the Development Experience Information 
Division of the Center for Development Information and Evaluation (PPC/
DCIE/DI) in the Bureau for Policy and Program Coordination, copies of 
reports and information products which describe, communicate or organize 
program/project development assistance activities, methods, 
technologies, management, research, results and experience as outlined 
in the Agency's ADS Chapter 540, section E540.5.2b(3). Information may 
be obtained from the Cognizant Technical Officer (CTO). These reports 
include: assessments, evaluations, studies, development experience 
documents, technical reports and annual reports. The Contractor shall 
also submit to PPC/CDIE/DI copies of information products including 
training materials, publications, databases, computer software programs, 
videos and other intellectual deliverable materials required under the 
Contract Schedule. Time-sensitive materials such as newsletters, 
brochures, bulletins or periodic reports covering periods of less than a 
year are not to be submitted.
    (2) Upon contract completion, the contractor shall submit to PPC/
CDIE/DI an index of all reports and information/intellectual products 
referenced in paragraph (a)(1) of this clause.
    (b) Submission requirements--(1) Distribution. (i) The contractor 
shall submit contract reports and information/intellectual products 
(referenced in paragraph (a)(1) of this clause) in electronic format and 
hard copy (one copy) to U.S. Agency for International Development PPC/
CDIE/DI, Attn: ACQUISITIONS, Washington D.C. 20523 at the same time 
submission is made to the CTO.
    (ii) The contractor shall submit the reports index referenced in 
paragraph (a)(2) of this clause and any reports referenced in paragraph 
(a)(1) of this clause that have not been previously submitted to PPC/
CDIE/DI, within 30 days after completion of the contract to the address 
cited in paragraph (b)(1)(i) of this clause.
    (2) Format. (i) Descriptive information is required for all 
Contractor products submitted. The title page of all reports and 
information products shall include the contract number(s), contractor 
name(s), name of the USAID cognizant technical office, the publication 
or issuance date of the document, document title, author name(s), and 
strategic objective or activity title and associated number. In 
addition, all materials submitted in accordance with this clause shall 
have attached on a separate cover sheet the name, organization, address, 
telephone number, fax number, and Internet address of the submitting 
party.
    (ii) The hard copy report shall be prepared using non-glossy paper 
(preferably recycled and white or off-white) using black ink. Elaborate 
art work, multicolor printing and expensive bindings are not to be used. 
Whenever possible, pages shall be printed on both sides.
    (iii) The electronic document submitted shall consist of only one 
electronic file which comprises the complete and final equivalent of the 
hard copy submitted.
    (iv) Acceptable software formats for electronic documents include 
WordPerfect, Microsoft Word, ASCII, and Portable Document Format (PDF). 
Submission in Portable Document format is encouraged.
    (v) The electronic document submission shall include the following 
descriptive information:
    (A) Name and version of the application software used to create the 
file, e.g., WordPerfect Version 6.1 or ASCII or PDF.
    (B) The format for any graphic and/or image file submitted, e.g., 
TIFF-compatible.

[[Page 86]]

    (C) Any other necessary information, e.g. special backup or data 
compression routines, software used for storing/retrieving submitted 
data, or program installation instructions.

[64 FR 5010, Feb. 2, 1999]



Sec. 752.7006  Notices.

    The following clause shall be used in all USAID contracts.

                           Notices (APR 1984)

    Any notice given by any of the parties hereunder shall be sufficient 
only if in writing and delivered in person or sent by telegraph, cable, 
or registered or regular mail as follows:
    To USAID: Administrator, U.S. Agency for International Development, 
Washington, DC 20523-0061. Attention: Contracting Officer (the name of 
the cognizant Contracting Officer with a copy to the appropriate Mission 
Director).
    To Contractor: At Contractor's address shown on the cover page of 
this contract, or to such other address as either of such parties shall 
designate by notice given as herein required. Notices hereunder shall be 
effective when delivered in accordance with this clause or on the 
effective date of the notice, whichever is later.

[49 FR 13259, Apr. 3, 1984, as amended at 56 FR 2699, Jan. 24, 1991; 61 
FR 39095, July 26, 1996]



Sec. 752.7007  Personnel compensation.

    The following clause shall be used in all USAID cost-reimbursement 
contracts.

                    Personnel Compensation (JUL 2007)

    (a) Direct compensation of the Contractor's personnel will be in 
accordance with the Contractor's established policies, procedures, and 
practices, and the cost principles applicable to this contract.
    (b) Reimbursement of the employee's base annual salary plus overseas 
recruitment incentive, if any, which exceed the USAID Contractor Salary 
Threshold (USAID CST) stated in USAID Automated Directives System (ADS) 
Chapter 302 USAID Direct Contracting, must be approved in writing by the 
Contracting Officer, as prescribed in 731.205-6(b) or 731.371(b), as 
applicable.

[49 FR 13259, Apr. 3, 1984, as amended at 49 FR 33669, Aug. 24, 1984; 61 
FR 39095, July 26, 1996; 62 FR 40470, July 29, 1997; 72 FR 19669, Apr. 
19, 2007]



Sec. 752.7008  Use of Government facilities or personnel.

    The following clause is for use in all USAID non-commercial 
contracts.

          Use of Government Facilities or Personnel (APR 1984)

    (a) The Contractor and any employee or consultant of the Contractor 
is prohibited from using U.S. Government facilities (such as office 
space or equipment) or U.S. Government clerical or technical personnel 
in the performance of the services specified in the contract, unless the 
use of Government facilities or personnel is specifically authorized in 
the contract, or is authorized in advance, in writing, by the 
Contracting Officer.
    (b) If at any time it is determined that the Contractor, or any of 
its employees or consultants have used U.S. Government facilities or 
personnel without authorization either in the contract itself, or in 
advance, in writing, by the Contracting Officer, then the amount payable 
under the contract shall be reduced by an amount equal to the value of 
the U.S. Government facilities or personnel used by the Contractor, as 
determined by the Contracting Officer.
    (c) If the parties fail to agree on an adjustment made pursuant to 
this clause, it shall be considered a dispute, and shall be dealt with 
under the terms of the clause of this contract entitled ``Disputes''.

[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997]



Sec. 752.7009  Marking.

    The following clause is for use in all USAID contracts performed in 
whole or in part overseas.

                           Marking (JAN 1993)

    (a) It is USAID policy that USAID-financed commodities and shipping 
containers, and project construction sites and other project locations 
be suitably marked with the USAID emblem. Shipping containers are also 
to be marked with the last five digits of the USAID financing document 
number. As a general rule, marking is not required for raw materials 
shipped in bulk (such as coal, grain, etc.), or for semifinished 
products which are not packaged.
    (b) Specific guidance on marking requirements should be obtained 
prior to procurement of commodities to be shipped, and as early as 
possible for project construction sites and other project locations. 
This guidance will be provided through the cognizant technical office 
indicated on the cover page of this contract, or by the Mission Director 
in the Cooperating Country to which commodities are being shipped, or in 
which the project site is located.

[[Page 87]]

    (c) Authority to waive marking requirements is vested with the 
Regional Assistant Administrators, and with Mission Directors.
    (d) A copy of any specific marking instructions or waivers from 
marking requirements is to be sent to the Contracting Officer; the 
original should be retained by the Contractor.

[49 FR 13259, Apr. 3, 1984, as amended at 58 FR 8703, Feb. 17, 1993]



Sec. 752.7010  Conversion of U.S. dollars to local currency.

    For use in all USAID non-commercial contracts involving performance 
overseas.

         Conversion of U.S. Dollars to Local Currency (APR 1984)

    Upon arrival in the Cooperation Country, and from time to time as 
appropriate, the Contractor's Chief of Party shall consult with the 
Mission Director who shall provide, in writing, the procedure the 
Contractor and its employees shall follow in the conversion of United 
States dollars to local currency. This may include, but is not limited 
to, the conversion of said currency through the cognizant U.S. 
Disbursing Officer or Mission Controller, as appropriate.

[49 FR 13259, Apr. 3, 1984, as amended at 62 FR 40470, July 29, 1997]



Sec. 752.7011  Orientation and language training.

    For use in all USAID cost-reimbursement contracts involving 
performance overseas.

              Orientation and Language Training (APR 1984)

    (a) Regular employees shall receive a maximum of 2 weeks USAID 
sponsored orientation before travel overseas. The dates of orientation 
shall be selected by the Contractor from the orientation schedule 
provided by USAID.
    (b) Participation in USAID sponsored orientation in no way relieves 
the Contractor of its responsibility for assuring that all employees, 
regular and short-term, are properly oriented. As an addition to or 
substitution for USAID's sponsored orientation for regular employees, 
the following types of orientation may be authorized taking into 
consideration specific job requirements, the employee's prior overseas 
experience, or unusual circumstances.
    (1) Modified orientation.
    (2) Language training, particularly when significant for operating 
capabilities.
    (3) Orientation and language training for regular employee's 
dependents.
    (4) Contractor-sponsored orientation.
    (5) Orientation in all matters related to the administrative, 
logistical, and technical aspects of the employee's movement to, and 
tour of duty in, the Cooperating Country.
    (c) Authorization for an additional or alternate orientation 
program, if any, shall be either set forth in the schedule or provided 
in writing by the Contracting Officer.
    (d) Travel expenses not to exceed one round trip from regular 
employee's residence to place of orientation and return will be 
reimbursed, pursuant to the cost principles applicable to this contract. 
Allowable salary costs during the period of orientation are also 
reimbursable.



Sec. 752.7012  Protection of the individual as a research subject.

    This clause is for use in any USAID contract which involves research 
using human subjects.

      Protection of the Individual as a Research Subject (AUG 1995)

    (a) Safeguarding the rights and welfare of human subjects in 
research conducted under a USAID contract is the responsibility of the 
contractor. USAID has adopted the Common Federal Policy for the 
Protection of Human Subjects. USAID's Policy is found in Part 225 of 
Title 22 of the Code of Federal Regulations (the ``Policy''). Additional 
interpretation, procedures, and implementation guidance of the Policy 
are found in USAID General Notice entitled ``Procedures for the 
Protection of Human Subjects in Research Supported by USAID'', issued 
April 19, 1995, as from time to time amended (a copy of which is 
attached to this contract). USAID's Cognizant Human Subjects Officer 
(CHSO) and USAID/W has oversight, guidance, and interpretation 
responsibility for the Policy.
    (b) Contractors must comply with the Policy when humans are the 
subject of research, as defined in 22 CFR 225.102(d), performed as part 
of the contract, and contractors must provide ``assurance'', as required 
by 22 CFR 225.103, that they follow and abide by the procedures in the 
Policy. See also Section 5 of the April 19, 1995, USAID General Notice 
which sets forth activities to which the Policy is applicable. The 
existence of a bona fide, applicable assurance approved by the 
Department of Health and Human Services (HHS) such as the ``multiple 
project assurance'' (MPA) will satisfy this requirement. Alternatively, 
contractors can provide an acceptable written assurance to USAID as 
described in 22 CFR 225.103. Such assurances must be determined by the 
CHSO to be acceptable prior to any applicable research being initiated 
or conducted under the contract. In some limited instances outside the 
U.S., alternative systems for the protection of human subjects may be 
used provided they are deemed ``at least equivalent'' to those

[[Page 88]]

outlined in part 225 (see 22 CFR 225.101(h)). Criteria and procedures 
for making this determination are described in the General Notice cited 
in the preceding paragraph.
    (c) Since the welfare of the research subject is a matter of concern 
to USAID as well as to the contractor, USAID staff, consultants and 
advisory groups may independently review and inspect research, and 
research processes and procedures involving human subjects, and based on 
such findings, the CHSO may prohibit research which presents 
unacceptable hazards or otherwise fails to comply with USAID procedures. 
Informed consent documents must include the stipulation that the 
subject's records may be subject to such review.

[61 FR 39095, July 26, 1996]



Sec. 752.7013  Contractor-mission relationships.

    For use in all USAID contracts involving performance overseas. Note 
that paragraph (f) of this clause is applicable only in contracts with 
an educational institution.

               Contractor-Mission Relationships (OCT 1989)

    (a) The Contractor acknowledges that this contract is an important 
part of the United States Foreign Assistance Program and agrees that its 
operations and those of its employees in the Cooperating Country will be 
carried out in such a manner as to be fully commensurate with the 
responsibility which this entails.
    (b) The Mission Director is the chief representative of USAID in the 
Cooperating Country. In this capacity, he/she is responsible for both 
the total USAID program in the cooperating country including certain 
administrative responsibilities set forth in this contract, and for 
advising USAID regarding the performance of the work under the contract 
and its effect on the United States Foreign Assistance Program. Although 
the Contractor will be responsible for all professional, technical, and 
administrative details of the work called for by the contract, it shall 
be under the guidance of the Mission Director in matters relating to 
foreign policy. The Chief of Party shall keep the Mission Director 
currently informed of the progress of the work under the contract.
    (c) In the event the conduct of any Contractor employee is not in 
accordance with the preceding paragraphs, the Contractor's Chief of 
Party shall consult with the Mission Director and the employee involved 
and shall recommend to the Contractor a course of action with regard to 
such employee.
    (d) The parties recognize the right of the U.S. Ambassador to direct 
the removal from a country of any U.S. citizen or the discharge from 
this contract of any third-country national or cooperating-country 
national when, at the discretion of the Ambassador, the interests of the 
United States so require. Under these circumstances termination of an 
employee and replacement by an acceptable substitute shall be at no cost 
to USAID.
    (e) If it is determined that the services of such employee shall be 
terminated, the Contractor shall use its best efforts to cause the 
return of such employee to the United States or point of origin as 
appropriate.

[The following paragraph (f) is applicable if the contract is with an 
educational institution:]

    (f) It is understood by the parties that the Contractor's 
responsibilities shall not be restrictive of academic freedom. 
Notwithstanding these academic freedoms, the Contractor's employees, 
while in the Cooperating Country, are expected to show respect for its 
conventions, customs, and institutions, to abide by applicable laws and 
regulations, and not to interfere in its internal political affairs.

                             (End of clause)

[54 FR 46391, Nov. 3, 1989]



Sec. 752.7014  Notice of changes in travel regulations.

    The following clause is for use in cost-reimbursement contracts 
involving work overseas.

           Notice of Changes in Travel Regulations (JAN 1990)

    (a) Changes in travel, differential, and allowance regulations shall 
be effective on the beginning of the Contractor's next pay period 
following the effective date of the change as published in the 
applicable travel regulations (the Standardized Regulations (Government 
Civilians, Foreign Areas), the Uniform State/USAID/USIA Foreign Service 
Travel Regulations, and the Federal Travel Regulations).
    (b) The Standardized Regulations (Government Civilians Foreign 
Areas), and the Federal Travel Regulations are available from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402.
    (c) Information regarding the Uniform State/USAID/USIA Foreign 
Service Travel Regulations as referenced in the ``Travel and 
Transportation'' clause of this contract may be obtained from the 
Contracting Officer.

                             (End of clause)

[55 FR 6805, Feb. 27, 1990]

[[Page 89]]



Sec. 752.7015  Use of pouch facilities.

    For use in all USAID non-commercial contracts exceeding the 
simplified acquisition threshold and involving performance overseas.

                   Use of Pouch Facilities (JUL 1997)

    (a) Use of diplomatic pouch is controlled by the Department of 
State. The Department of State has authorized the use of pouch 
facilities for USAID contractors and their employees as a general 
policy, as detailed in paragraphs (a)(1) through (a)(7) of this clause; 
however, the final decision regarding use of pouch facilities rests with 
the Embassy or USAID Mission. In consideration of the use of pouch 
facilities as hereinafter stated, the Contractor and its employees agree 
to indemnify and hold harmless the Department of State and USAID against 
loss or damage occurring in pouch transmission.
    (1) Contractors and their employees are authorized use of the pouch 
for transmission and receipt of up to a maximum of 2 pounds per shipment 
of correspondence and documents needed in the administration of foreign 
assistance programs.
    (2) U.S. citizen employeed of U.S. contractors are authorized use of 
the pouch for personal mail up to a maximum of one pound per shipment 
(but see paragraph (a)(3) of this clause).
    (3) Merchandise, parcels, magazines, or newspapers are not 
considered to be personal mail for purposes of this clause, and are not 
authorized to be sent or received by pouch.
    (4) Official mail as authorized by paragraph (a)(1) of this clause 
should be addressed as follows: Individual or Organization name, 
followed by the symbol ``C'', city Name of Post, U.S. Agency for 
International Development, Washington, DC 20523-0001.
    (5) Personal mail pursuant to paragraph (a)(2) of this clause should 
be sent to the address specified in paragraph (a)(4) of this clause, but 
without the name of the organization.
    (6) Mail sent via the diplomatic pouch may not be in violation of 
U.S. Postal laws and may not contain material ineligible for pouch 
transmission.
    (7) USAID contractor personnel are not authorized use of military 
postal facilities (APO/FPO). This is an Adjutant General's decision 
based on existing laws and regulations governing military postal 
facilities and is being enforced worldwide. Posts having access to APO/
FPO facilities and using such for diplomatic pouch dispatch, may, 
however, accept official mail from Contractors and letter mail from 
their employees for the pouch, provided of course, adequate postage is 
affixed.
    (b) The Contractor shall be responsible for advising its employees 
of this authorization and these guidelines and limitations on use of 
pouch facilities.
    (c) Specific additional guidance on use of pouch facilities in 
accordance with this clause is available from the Post Communication 
Center at the Embassy or USAID Mission.

[49 FR 13259, Apr. 3, 1984, as amended at 56 FR 2699, Jan. 24, 1991; 57 
FR 5237, Feb. 13, 1992; 62 FR 40471, July 29, 1997; 62 FR 45334, Aug. 
27, 1997]



Sec. 752.7016-752.7017  [Reserved]



Sec. 752.7018  Health and accident coverage for USAID participant 
          trainees.

    For use in any USAID contract under which USAID participants are 
trained.

 Health and Accident Coverage for USAID Participant Trainees (JAN 1999)

    (a) In accordance with the requirements of USAID Automated Directive 
System (ADS) 253.5.6b, the Contractor shall enroll all non-U.S. trainees 
(hereinafter referred to as ``participants''), whose training in the 
U.S. is financed by USAID under this contract, in USAID's Health and 
Accident Coverage (HAC) program. Sponsored trainees enrolled in third-
country or in-country training events are not eligible for USAID's HAC 
program, but the Contractor may obtain alternative local medical and 
accident insurance at contract expense, provided the cost is consistent 
with the cost principles in FAR 31.2.
    (b) When enrollment in the HAC program is required per paragraph (a) 
of this clause, the Contractor must enroll each participant in the HAC 
program through one of two designated contractors prior to the 
initiation of travel by the participant. USAID has developed an Agency-
wide database training management system, the Training Results and 
Information Network (``TraiNet''), which is the preferred system for 
managing USAID's participant training program, including enrollment in 
the HAC program. However, until such time as the USAID sponsoring unit 
(as defined in ADS 253) has given the Contractor access to USAID's 
``TraiNet'' software for trainee tracking and HAC enrollment, the 
Contractor must fill out and mail the Participant Data Form (PDF) (Form 
USAID 1381-4) to USAID. The Contractor can obtain information regarding 
each HAC program contractor, including contact information, and a supply 
of the PDF forms and instructions for completing and submitting them, by 
contacting the data base contractor serving the Global Center for Human 
Capacity Development (G/HCD).
    (c) The Contractor must ensure that HAC enrollment begins 
immediately upon the participant's departure for the United States for 
the purpose of participating in a training

[[Page 90]]

program financed by USAID, and that enrollment continues in full force 
and effect until the participant returns to his/her country of origin, 
or is released from USAID's responsibility, whichever is the sooner.
    (1) The HAC insurance provider, not the Contractor, shall be 
responsible for paying all reasonable and necessary medical 
reimbursement charges not otherwise covered by student health service or 
other insurance programs, subject to the availability of funds for such 
purposes, in accordance with the standards of coverage established by 
USAID under its HAC program and by the HAC providers' contracts.
    (2) After HAC enrollment, upon receipt of HAC services invoice from 
the selected HAC provider, the Contractor shall submit payment directly 
to the HAC provider.
    (3) The Contractor is responsible for ensuring that participants and 
any stakeholders (as defined in ADS 253) are advised that USAID is not 
responsible for any medical claims in excess of the coverages provided 
by the HAC program, or for medical claims not eligible for coverage 
under the HAC program, or not otherwise covered in this section.
    (d) The Contractor, to the extent that it is an educational 
institution with a mandatory student health service program, shall also 
enroll participants in that institution's student health service 
program. Medical costs which are covered under the institution's student 
health service shall not be eligible for payment under USAID's HAC 
program.
    (e) If the Contractor has a mandatory, non-waivable health and 
accident insurance program for students, the costs of such insurance 
will be allowable under this contract. Any claims eligible under such 
insurance will not be payable under USAID's HAC plan or under this 
contract. Even though the participant is covered by the Contractor's 
mandatory, non-waivable health and accident insurance program, the 
participant MUST be enrolled in USAID's more comprehensive HAC program.
    (f) Medical conditions pre-existing to the participant's sponsorship 
for training by USAID, discovered during the required pre-departure 
medical examination, are grounds for ineligibility for sponsorship 
unless specifically waived by the sponsoring unit, and covered through a 
separate insurance policy maintained by the participant or his employer, 
or a letter of guarantee from the participant or the employer (which 
thereby assumes liability for any related charges that might 
materialize. See ADS 253).

[64 FR 5010, Feb. 2, 1999]



Sec. 752.7019  Participant training.

    For use in any USAID direct contract involving training of USAID 
participants.

                     Participant Training (JAN 1999)

    (a) Definitions. (1) Participant training is the training of any 
foreign national outside of his or her home country, using USAID funds.
    (2) A Participant is any foreign national being trained under this 
contract outside of his or her country.
    (b) Applicable regulations. Participant training conducted under 
this contract shall comply with the policies and essential procedures 
pertaining to training-related services contained in USAID Automated 
Directive System (ADS) Ch. 253 ``Training for Development Impact''. Any 
exceptions to ADS 253 requirements are specified as such within this 
contract. The current version of Chapter 253 may be obtained directly 
from the USAID website at http://www.info.usaid.gov/pubs/ads/200.
    (c) The contractor shall be reimbursed for the reasonable and 
allocable costs incurred in providing training to participants in the 
United States or other approved location provided such costs do not 
exceed the limitations in, or have been waived in accordance with, ADS 
253.5.5.

    Note: Academic rates are available through a special website 
monitored by the United States Information Agency. The website for 
academic programs is: http://www.iie.org/fulbright/posts/restrict. U.S.-
based participants receive the standardized U.S. travel per diem rates 
maintained by GSA for short-term training (website: http://
policyworks.gov).

[64 FR 5011, Feb. 2, 1999]



Sec. 752.7020  [Reserved]



Sec. 752.7021  Changes in tuition and fees.

    For use in contracts for participant training with an educational 
institution.

                 Changes in Tuition and Fees (APR 1984)

    While educational programs for participants will be established 
utilizing the Contractor's currently applicable tuition and fee 
schedule, the parties understand that such standard tuition and fees may 
be subject to change during the course of the program. If such event 
results in an increase in the cost of the program, USAID agrees to pay 
such increased standard tuition and fees in the next applicable academic 
term as a condition for the continuation of the program. If such change 
results in a decrease in the cost of the program, the Contractor agrees 
to charge to USAID only the amount of such revised standard tuition and 
fees in the next applicable academic term. The Contractor shall 
undertake to keep USAID currently advised as to changes in its standard 
tuition and fees. At such time as increases in the

[[Page 91]]

amounts of tuition and fees results in there being inadequate funds 
remaining in this contract to meet the costs of the next academic term, 
the Contractor will so advise USAID. USAID may then provide such 
additional funds as required to complete the program.



Sec. 752.7022  Conflicts between contract and catalog.

    For use in contracts for participant training with an educational 
institution.

            Conflicts Between Contract and Catalog (APR 1984)

    In the event of any inconsistency between the provisions of this 
contract and any catalog, or other document incorporated in this 
contract by reference or otherwise or any of the Contractor's rules and 
regulations, the provisions of this contract shall govern.



Sec. 752.7023  Required visa form for USAID participants.

    For use in any USAID direct contract which involves training of 
USAID participants.

          Required Visa Form for USAID Participants (APR 1984)

    The Contractor shall insure that any foreign student brought to the 
United States for training under this contract uses visa form IAP 66A 
``Certificate for Exchange Visitor (J-1) Status''.



Sec. 752.7024  Withdrawal of students.

    For use in contracts for participant training with an educational 
institution.

                    Withdrawal of Students (APR 1984)

    (a) The Government may, at its option and at any time, withdraw any 
student.
    (b) The Contractor may request withdrawal by the Government of any 
student for academic or disciplinary reasons.
    (c) If such withdrawal occurs prior to the end of a term, the 
Government shall pay any tuition and fees due for the current term in 
which the student may be enrolled, and the Contractor shall credit the 
Government with any charges eligible for refund under the Contractor's 
standard procedures for civilian students in effect on the effective 
date of such withdrawal.
    (d) Withdrawal of students by the Government shall not be the basis 
for any special charge or claim by the Contractor other than as provided 
by the Contractor's standard procedures.



Sec. 752.7025  Approvals.

    For use in all USAID contracts.

                          Approvals (APR 1984)

    All approvals required to be given under the contract by the 
Contracting Officer or the Mission Director shall be in writing and, 
except when extraordinary circumstances make it impracticable, shall be 
requested by the Contractor sufficiently in advance of the contemplated 
action to permit approval, disapproval or other disposition prior to 
that action. If, because of existing conditions, it is impossible to 
obtain prior written approval, the approving official may, at his 
discretion, ratify the action after the fact.



Sec. 752.7026  [Reserved]



Sec. 752.7027  Personnel.

    For use in all USAID services contracts involving performance 
overseas. Note that paragraphs (f) and (g) of this clause are for use 
only in cost reimbursement contracts.

                          Personnel (DEC 1990)

    (a) Clearance. (1) Individuals engaged or assigned within the United 
States. The contractor will obtain written notification from the 
Contracting Officer of Cooperating Country clearance of any employee 
sent outside the United States to perform duties under this contract.
    (2) Individuals engaged or assigned when outside the United States. 
No individual shall be engaged or assigned when outside the United 
States to perform work outside the United States under this contract 
unless authorized in the schedule or otherwise approved by the 
Contracting Officer or Mission Director. However, when services are 
performed in the Cooperating Country on a casual or irregular basis or 
in an emergency, exception to this provision can be made in accordance 
with instructions or regulations established by the Mission Director.
    (b) Physical fitness of employees and dependents. See the clause of 
this contract entitled Physical Fitness.
    (c) Conformity to laws and regulations of Cooperating Country. 
Contractor agrees to use its best efforts to assure that its employees 
and their dependents, while in the Cooperating Country, abide by all 
applicable laws and regulations of the Cooperating Country and political 
subdivisions thereof.
    (d) Importation or sale of personal property or automobiles. To the 
extent permitted by Cooperating Country laws, the importation and sale 
of personal property or automobiles by contractor employees and their 
dependents in the Cooperating Country shall be subject to the same 
limitations and prohibitions which apply to U.S. nationals employed by

[[Page 92]]

the Mission. This provision does not apply to employees or consultants 
who are citizens or legal residents of the Cooperating Country.
    (e) Economic and financial activities. Other than work to be 
performed under this contract for which an employee or consultant is 
assigned by the contractor, no such employee or consultant of the 
contractor shall engage, directly or indirectly, either in his/her own 
name or in the name or through the agency of another person, in any 
business, profession or occupation in the Cooperating Country or other 
foreign countries to which he/she is assigned, nor shall he make loans 
or investments to or in any business, profession or occupation in the 
Cooperating Country or other foreign countries in which he/she is 
assigned. This provision does not apply to employees or consultants who 
are citizens or legal residents of the Cooperating Country.

    [The following paragraphs (f) and (g) are applicable only to cost 
reimbursement contracts.]

    (f) Duration of appointments. (1) Regular employees will normally be 
appointed for a minimum of 2 years which period includes orientation 
(less language training) in the United States and authorized 
international travel under the contract except:
    (i) An appointment may be made for less than 2 years if the contract 
has less than 2 years but more than 1 year to run provided that if the 
contract is extended the appointment shall also be extended to the full 
2 years. This provision shall be reflected in the employment agreement 
prior to employment under this contract.
    (ii) When a 2-year appointment is not required, appointment may be 
made for less than 2 years but in no event less than 1 year.
    (iii) When the normal tour of duty established for USAID personnel 
at a particular post is less than 2 years, then a normal appointment 
under this contract may be of the same duration.
    (iv) When the contractor is unable to make appointments of regular 
employees for a full 2 years, the contractor may make appointments of 
less than 2 but not less than 1 year, provided that such appointment is 
approved by the Contracting Officer.
    (2) Services required for less than 1 year will be considered short-
term appointments and the employee will be considered a short-term 
employee.
    (g) Employment of dependents. If any person who is employed for 
services in the Cooperating Country under this contract is either (1) a 
dependent of an employee of the U.S. Government working in the 
Cooperating Country, or (2) a dependent of a contractor employee working 
under a contract with the U.S. Government in the Cooperating Country, 
such person shall continue to hold the status of a dependent. He or she 
shall be entitled to salary for the time services are actually performed 
in the Cooperating Country, and differential and allowances as 
established by the Standardized Regulations (Government Civilians, 
Foreign Areas).

                             (End of clause)

[56 FR 7587, Feb. 25, 1991, as amended at 62 FR 40471, July 29, 1997]



Sec. 752.7028  Differential and allowances.

    The following clause is for use in all USAID cost reimbursement 
contracts performed in whole or in part overseas.

                 Differentials and Allowances (JUL 1996)

    (This clause does not apply to TCN or CCN employees. TCN and CCN 
employees are not eligible for differentials and allowances, unless 
specifically authorized by the cognizant Assistant Administrator or 
Mission Director. A copy of such authorization shall be retained and 
made available as part of the contractor's records which are required to 
be preserved and made available by the ``Examination of Records by the 
Comptroller General'' and ``Audit'' clauses of this contract).

    (a) Post differential. Post differential is an additional 
compensation for service at places in foreign areas where conditions of 
environment differ substantially from conditions of environment in the 
continental United States and warrant additional compensation as a 
recruitment and retention incentive. In areas where post differential is 
paid to USAID direct-hire employees, post differential not to exceed the 
percentage of salary as is provided such USAID employees in accordance 
with the Standardized Regulations (Government Civilians, Foreign Areas), 
Chapter 500 (except the limitation contained in Section 552, ``Ceiling 
on Payment'') Tables-Chapter 900, as from time to time amended, will be 
reimbursable hereunder for employees in respect to amounts earned during 
the time such employees actually spend overseas on work under this 
contract. When such post differential is provided to regular employees 
of the Contractor, it shall be payable beginning on the date of arrival 
at the post of assignment and continue, including periods away from post 
on official business, until the close of business on the day of 
departure from post of assignment en route to the United States. Sick or 
vacation leave taken at or away from the post of assignment will not 
interrupt the continuity of the assignment or require a discontinuance 
of such post differential payments, provided such leave is not taken 
within the United States or the territories of the United States. Post 
differential will not be payable while the employee is away from his/her 
post of assignment for purposes of home leave. Short-term employees 
shall be entitled to

[[Page 93]]

post differential beginning with the forty-third (43rd) day at post.
    (b) Living quarters allowance. Living quarters allowance is an 
allowance granted to reimburse an employee for substantially all of his/
her cost for either temporary or residence quarters whenever Government-
owned or Government-rented quarters are not provided to him/her at his/
her post without charge. Such costs are those incurred for temporary 
lodging (temporary lodging allowance) or one unit of residence quarters 
(living quarters allowance) and include rent, plus any costs not 
included therein for heat, light, fuel, gas, electricity and water. The 
temporary lodging allowance and the living quarters allowance are never 
both payable to an employee for the same period of time. The Contractor 
will be reimbursed for payments made to employees for a living quarters 
allowance for rent and utilities if such facilities are not supplied. 
Such allowance shall not exceed the amount paid USAID employees of 
equivalent rank in the Cooperating Country, in accordance with either 
the Standardized Regulations (Government Civilians, Foreign Areas), 
Chapter 130, as from time to time amended, or other rates approved by 
the Mission Director. Subject to the written approval of the Mission 
Director, short-term employees may be paid per diem (in lieu of living 
quarters allowance) at rates prescribed by the Federal Travel 
Regulations, as from time to time amended, during the time such short-
term employees spend at posts of duty in the Cooperating Country under 
this contract. In authorizing such per diem rates, the Mission Director 
shall consider the particular circumstances involved with respect to 
each such short-term employee including the extent to which meals and/or 
lodging may be made available without charge or at nominal cost by an 
agency of the United States Government or of the Cooperating Government, 
and similar factors.
    (c) Temporary quarters subsistence allowance. Temporary quarters 
subsistence allowance is a quarters allowance granted to an employee for 
the reasonable cost of temporary quarters incurred by the employee and 
his family for a period not in excess of (i) 90 days after first arrival 
at a new post in a foreign area or a period ending with the occupation 
of residence (permanent) quarters, if earlier, and (ii) 30 days 
immediately preceding final departure from the post subsequent to the 
necessary vacating of residence quarters, unless an extension is 
authorized in writing by the Mission Director. The Contractor will be 
reimbursed for payments made to employees and authorized dependents for 
temporary quarters subsistence allowance, in lieu of living quarters 
allowance, not to exceed the amount set forth in the Standardized 
Regulations (Government Civilians, Foreign Areas), Chapter 120, as from 
time to time amended.
    (d) Post allowance. Post allowance is a cost-of-living allowance 
granted to an employee officially stationed at a post where the cost of 
living, exclusive of quarters cost, is substantially higher than in 
Washington, DC. The Contractor will be reimbursed for payments made to 
employees for post allowance not to exceed those paid USAID employees in 
the Cooperating Country, in accordance with the Standardized Regulations 
(Government Civilians, Foreign Areas), Chapter 220, as from time to time 
amended.
    (e) Supplemental post allowance. Supplemental post allownce is a 
form of post allowance granted to an employee at his/her post when it is 
determined that assistance is necessary to defray extraordinary 
subsistence costs. The Contractor will be reimbursed for payments made 
to employees for supplemental post allowance not to exceed the amount 
set forth in the Standardized Regulations (Government Civilians, Foreign 
Areas), Chapter 230, as from time to time amended.
    (f) Educational allowance. Educational allowance is an allowance to 
assist an employee in meeting the extraordinary and necessary expenses, 
not otherwise compensated for, incurred by reason of his/her service in 
a foreign area in providing adequate elementary and secondary education 
for his/her children. The Contractor will be reimbursed for payments 
made to regular employees for educational allowances for their dependent 
children in amounts not to exceed those set forth in the Standardized 
(Regulations Government Civilians, Foreign Areas), Chapter 270, as from 
time to time amended.
    (g) Educational travel. Educational travel is travel to and from a 
school in the United States for secondary education (in lieu of an 
educational allowance) and for college education. The Contractor will be 
reimbursed for payments made to regular employees for educational travel 
for their dependent children provided such payment does not exceed that 
which would be payable in accordance with the Standardized Regulations 
(Government Civilians, Foreign Areas), Chapter 280, as from time to time 
amended. Educational travel shall not be authorized for regular 
employees whose assignment is less than two years.
    (h) Separate maintenance allowance. Separate maintenance allowance 
is an allowance to assist an employee who is compelled, by reason of 
dangerous, notably unhealthful, or excessively adverse living conditions 
at his/her post of assignment in a foreign area, or for the convenience 
of the Government, to meet the additional expense of maintaining his/her 
dependents elsewhere than at such post. The Contractor will be 
reimbursed for payments made to regular employees for a

[[Page 94]]

separate maintenance allowance not to exceed that made to Aid employees 
in accordance with the Standardized Regulations (Government Civilians, 
Foreign Areas), Chapter 260, as from time to time amended.
    (i) Payments during evacuation. The Standardized Regulations 
(Government Civilians, Foreign Areas) provide the authority for 
efficient, orderly, and equitable procedure for the payment of 
compensation, post differential and allowances in the event of an 
emergency evacuation of employees or their dependents, or both, from 
duty stations for military or other reasons or because of imminent 
danger to their lives. If evacuation has been authorized by the Mission 
Director the Contractor will be reimbursed for payments made to 
employees and authorized dependents evacuated from their post of 
assignment in accordance with the Standardized Regulations (Government 
Civilians, Foreign Areas), Chapter 600, and the Federal Travel 
Regulations, as from time to time amended.
    (j) Danger pay allowance. (1) The contractor will be reimbursed for 
payments made to its employees for danger pay not to exceed that paid 
USAID employees in the cooperating country, in accordance with the 
Standardized Regulations (Government Civilians, Foreign Areas), Chapter 
650, as from time to time amended.
    (2) Danger pay is an allowance that provides additional compensation 
above basic compensation to an employee in a foreign area where civil 
insurrection, civil war, terrorism or wartime conditions threaten 
physical harm or imminent danger to the health or well-being of the 
employee. The danger pay allowance is in lieu of that part of the post 
differential which is attributable to political violence. Consequently, 
the post differential may be reduced while danger pay is in effect to 
avoid dual crediting for political violence.

[49 FR 13259, Apr. 3, 1984, as amended at 51 FR 11450, Apr. 3, 1986; 53 
FR 50632, Dec. 16, 1988; 61 FR 39096, July 26, 1996; 61 FR 51235, Oct. 
1, 1996]



Sec. 752.7029  Post privileges.

    For use in all USAID non-commercial contracts involving performance 
overseas.

                       Post Privileges (JUL 1993)

    (a) Routine health room services may be available, subject to post 
policy, to U.S. citizen contractors and their authorized dependents 
(regardless of citizenship) at the post of duty. These services do not 
include hospitalization, or predeparture or end of tour medical 
examinations. The services normally include such medications as may be 
available, immunizations and preventive health measures, diagnostic 
examinations and advice, and home visits as medically indicated. 
Emergency medical treatment is provided to U.S. citizen employees and 
dependents, whether or not they may have been granted access to routine 
health room services, on the same basis as it would be to any U.S. 
citizen in an emergency medical situation in the country.
    (b) Privileges such as the use of APO, PX's, commissaries, and 
officer's clubs are established at posts abroad pursuant to agreements 
between the U.S. and Cooperating Governments. These facilities are 
intended for and usually limited to members of the official U.S. 
establishment including the Embassy, USAID Mission, U.S. Information 
Service, and the Military. Normally, the agreements do not permit these 
facilities to be made available to nonofficial Americans.

[49 FR 13259, Apr. 3, 1984, as amended at 56 FR 7587, Feb. 25, 1991; 58 
FR 58596, Nov. 2, 1993; 62 FR 40471, July 29, 1997]



Sec. 752.7030  Inspection trips by contractor's officers and executives.

    For use in cost reimbursement contracts with an educational 
institution involving performance overseas.

   Inspection Trips by Contractor's Officers and Executives (APR 1984)

    Provided it is approved by the Mission Director, the Contractor may 
send the Campus Coordinator, a professional member of its staff as an 
alternate to the Campus Coordinator, or such of its senior officials 
(e.g., president, vice presidents, deans, or department heads) to the 
Cooperating Country as may be required to review the progress of the 
work under this contract. Except for the Campus Coordinator or his/her 
alternate, no direct salary charges will be paid hereunder with respect 
to any such officials.



Sec. 752.7031  Leave and holidays.

    For use in all USAID cost-reimbursement contracts for technical or 
professional services.

                      Leave and Holidays (OCT 1989)

    (a) Vacation leave. (1) The Contractor may grant to its employees 
working under this contract vacations of reasonable duration in 
accordance with the Contractor's practice for its employees, but in no 
event shall such vacation leave be earned at a rate exceeding 26 work 
days per annum. Reimbursement for vacation leave is limited to the 
amount earned by employees while serving under this contract.
    For regular employees during their tour of duty in the Cooperating 
Country, vacation

[[Page 95]]

leave is provided under this contract primarily for purposes of 
affording necessary rest and recreation. The Contractor's Chief of 
Party, the employee and the Cooperating Country institution associated 
with this project shall develop vacation leave schedules early in the 
employee's tour of duty taking into consideration project requirements, 
employee preference and other factors.
    (2) Leave taken during the concluding weeks of an employee's tour 
shall be included in the established leave schedule and be limited to 
that amount of leave which can be earned during a twelve-month period 
unless approved in accordance with paragraph (a)(3) of this clause.
    (3) Vacation leave earned but not taken by the end of the employee's 
tour pursuant to paragraphs (a) (1) and (2) of this clause will be 
forfeited unless the requirements of the project precluded the employee 
from taking such leave, and the Contracting Officer (with the 
endorsement of the Mission) approves one of the following as an 
alternative:
    (i) Taking, during the concluding weeks of the employee's tour, 
leave not permitted under (a)(2) of this section, or
    (ii) Lump-sum payment for leave not taken provided such leave does 
not exceed the number of days which can be earned by the employee during 
a twelve-month period.
    (b) Sick Leave. Sick leave is earned by employees in accordance with 
the Contractor's usual practice but not to exceed 13 work days per annum 
or 4 hours every 2 weeks. Additional sick leave after use of accrued 
vacation leave may be advanced in accordance with Contractor's usual 
practice, if in the judgment of the Contractor's Chief of Party it is 
determined that such additional leave is in the best interest of the 
project. In no event shall such additional leave exceed 30 days. The 
Contractor agrees to reimburse USAID for leave used in excess of the 
amount earned during the employee's assignment under this contract. Sick 
leave earned and unused at the end of a regular tour of duty may be 
carried over to an immediately-succeeding tour of duty under this 
contract. The use of home leave authorized under this clause shall not 
constitute a break in service for the purpose of sick leave carry-over. 
Contractor employees will not be compensated for unused sick leave at 
the completion of their duties under this contract.
    (c) Home leave. (1) Home leave is leave earned for service abroad 
for use only in the United States, in the Commonwealth of Puerto Rico, 
or in the possessions of the United States.
    (2) A regular employee who is a U.S. citizen or resident and has 
served at least 2 years overseas, as defined in paragraph (c)(4) of this 
clause, under this contract and has not taken more than 30 workdays 
leave (vacation, sick, or leave without pay) in the United States, may 
be granted home leave of not more than 15 workdays for each such year of 
service overseas, provided that such regular employee agrees to return 
overseas upon completion of home leave under an additional 2 year 
appointment, or for a shorter period of not less than 1 year of overseas 
service under the contract if the Mission Director has approved in 
advance. Home leave must be taken in the United States, the Commonwealth 
of Puerto Rico, or the possessions of the United States; any days spent 
elsewhere will be charged to vacation leave or leave without pay.
    (3) Notwithstanding the requirement in paragraph (c)(2), of this 
clause, that the Contractor's regular employee must have served 2 years 
overseas under this contract to be eligible for home leave, Contractor 
may grant advance home leave to such regular employee subject to all of 
the following conditions:
    (i) Granting of advance home leave would in each case serve to 
advance the attainment of the objectives of this contract;
    (ii) The regular employee shall have served a minimum of 18 months 
in the Cooperating Country on his/her current tour of duty under this 
contract; and
    (iii) The regular employee shall have agreed to return to the 
Cooperating Country to serve out the remainder of his/her current tour 
of duty and an additional 2 year appointment under this contract, or 
such other additional appointment of not less than 1 year of overseas 
service as the Mission Director may approve.
    (4) The period of service overseas required under paragraph (c)(2) 
or paragraph (c)(3) of this clause shall include the actual days spent 
in orientation in the United States (less language training) and the 
actual days overseas beginning on the date of departure from the United 
States port of embarkation on international travel and continuing, 
inclusive of authorized delays en route, to the date of arrival at the 
United States port of debarkation from international travel. Allowable 
vacation and sick leave taken while overseas, but not leave without pay, 
shall be included in the required period of service overseas. An amount 
equal to the number of days vacation and sick leave taken in the United 
States, the Commonwealth of Puerto Rico, or the possessions of the 
United States will be added to the required period of service overseas.
    (5) Salary during travel to and from the United States for home 
leave will be limited to the time required for travel by the most 
expeditious air route. The Contractor will be responsible for 
reimbursing USAID for salary payments made during home leave if in spite 
of the undertaking of the new appointment the regular employee, except 
for reasons beyond his/her control as determined by the Contracting 
Officer, does not return overseas

[[Page 96]]

and complete the additional required service. Unused home leave is not 
reimbursable under this contract.
    (6) To the extent deemed necessary by the Contractor, regular 
employees in the United States on home leave may be authorized to spend 
not more than 5 days in work status for consultation at home office/
campus or at USAID/Washington before returning to their post of duty. 
Consultation at locations other than USAID/Washington or home office/
campus, as well as any time in excess of 5 days spent for consultation, 
must be approved by the Mission Director or the Contracting Officer.
    (7) Except as provided in the schedule or approved by the Mission 
Director or the Contracting Officer, home leave is not authorized for 
TCN or CCN employees.
    (d) Holidays. Holidays for Contractor employees serving in the 
United States shall be in accordance with the Contractor's established 
policy and practice. Holidays for Contractor employees serving overseas 
should take into consideration local practices and shall be established 
in collaboration with the Mission Director.
    (e) Military leave. Military leave of not more than 15 calendar days 
in any calendar year may be granted in accordance with the Contractor's 
usual practice to each regular employee whose appointment is not limited 
to 1 year or less and who is a reservist of the United States Armed 
Forces, provided that such military leave has been approved in advance 
by the cognizant Mission Director or Assistant Administrator. A copy of 
any such approval shall be provided to the Contracting Officer.
    (f) Leave Records. The Contractor's leave records shall be preserved 
and made available as part of the contractor's records which are 
required to be preserved and made available by the Examination of 
Records by the Comptroller General and Audit clauses of this contract.

                             (End of clause)

[54 FR 46392, Nov. 3, 1989, as amended at 56 FR 2699, Jan. 24, 1991]



Sec. 752.7032  International travel approval and notification 
          requirements.

    For use in any USAID contract requiring international travel.

 International Travel Approval and Notification Requirements (JAN 1990)

    Prior written approval by the Contracting Officer is required for 
all interrnational travel directly and identifiably funded by USAID 
under this contract. The Contractor shall therefore present to the 
Contracting Officer an itinerary for each planned international trip, 
showing the name of the traveler, purpose of the trip, origin/
destination (and intervening stops), and dates of travel, as far in 
advanced of the proposed travel as possible, but in no event less than 
three weeks before travel is planned to commence. The Contracting 
Officer's prior written approval may be in the form of a letter or 
telegram or similar device or may be specifically incorporated into the 
schedule of the contract. At least one week prior to commencement of 
approved international travel, the Contractor shall notify the cognizant 
Mission, with a copy to the Contracting Officer, of planned travel, 
identifying the travellers and the dates and times of arrival.

                             (End of clause)

[55 FR 6805, Feb. 27, 1990]



Sec. 752.7033  Physical fitness.

    For use in all USAID contracts involving performance overseas.

                       Physical Fitness (JUL 1997)

    (The requirements of this provision do not apply to employees hired 
in the Cooperating Country or to authorized dependents who were already 
in the Cooperating Country when their sponsoring employee was hired.)
    (a) Assignments of less than 60 days in the Cooperating Country. The 
contractor shall require employees being assigned to the Cooperating 
Country for less than 60 days to be examined by a licensed doctor of 
medicine. The contractor shall require the doctor to provide to the 
contractor a written statement that in his/her medical opinion the 
employee is physically qualified to engage in the type of activity for 
which he/she is employed and the employee is physically able to reside 
in the country to which he/she is assigned. Under a cost reimbursement 
contract, if the contractor has no written statement of medical opinion 
on file prior to the departure for the Cooperating Country of any 
employee and such employee is unable to perform the type of activity for 
which he/she is employed or cannot complete his/her tour of duty because 
of any physical disability (other than physical disability arising from 
an accident while employed under this contract), the contractor shall be 
responsible for returning the disabled employee to his/her point of hire 
and providing a replacement at no additional cost to the Government. In 
addition, in the case of a cost reimbursement contract, the contractor 
shall not be entitled to reimbursement for any additional costs 
attributable to delays or other circumstances caused by the employee's 
inability to complete his/her tour of duty.

[[Page 97]]

    (b) Assignments of 60 days or more in the Cooperating Country. (1) 
The Contracting Officer shall provide the contractor with a reproducible 
copy of the ``USAID Contractor Employee Physical Examination Form''. 
This form is for collection of information; it has been reviewed and 
approved by OMB (see 701.105(a)). Information required by the Paperwork 
Reduction Act for reporting the burden estimate, the points of contact 
regarding burden estimate, and the OMB approval expiration date, are 
printed on the form. The contractor shall reproduce the form as 
required, and provide a copy to each employee and authorized dependent 
proposed for assignments of 60 days or more in the Cooperating Country. 
The contractor shall have the employee and all authorized dependents 
obtain a physical examination from a licensed physician, who will 
complete the form for each individual. The employee will deliver the 
physical examination form(s) to the embassy health unit in the 
Cooperating Country.
    (2) (The following information is provided for two purposes: To 
assist fixed price offerors to develop their price proposal, and to 
provide cost reimbursement contractors with guidance in determining 
reasonable and allowable costs.) As a contribution to the cost of 
medical examinations, USAID shall reimburse the contractor for the 
physical examination authorized in paragraph (a) of this section in an 
amount not to exceed $100 for the physical examination, plus 
reimbursement of charges for immunizations to the extent not covered by 
the contractor's health insurance policy. For physical examinations 
authorized in paragraph (b)(1) above, the USAID contribution to the cost 
of the examination shall be as follows:
    (i) For the employee and authorized dependents 12 years of age and 
over, one half of the cost of each examination up to a maximum USAID 
share of $300 per individual, plus reimbursement of charges for 
immunizations to the extent not covered by the contractor's health 
insurance policy.
    (ii) For authorized dependents under 12 years of age, one half of 
the cost of each examination up to a maximum USAID share of $120 per 
individual, plus reimbursement of charges for immunizations to the 
extent not covered by the contractor's health insurance policy.
    (iii) The contractor must obtain the prior written approval of the 
Contracting Officer to receive any USAID contributions higher than these 
limits.

                             (End of clause)

[56 FR 7588, Feb. 25, 1991, as amended at 58 FR 58596, Nov. 2, 1993; 62 
FR 40471, July 29, 1997; 62 FR 45334, Aug. 27, 1997]



Sec. 752.7034  Acknowledgement and disclaimer.

    For use in any USAID contract which funds or partially funds 
publications, videos, or other information/media products.

                Acknowledgement and Disclaimer (DEC 1991)

    (a) USAID shall be prominently acknowledged in all publications, 
videos or other information/media products funded or partially funded 
through this contract, and the product shall state that the views 
expressed by the author(s) do not necessarily reflect those of USAID. 
Acknowledgements should identify the sponsoring USAID Office and Bureau 
or Mission as well as the U.S. Agency for International Development 
substantially as follows:
    ``This (publication, video or other information/media product 
(specify)) was made possible through support provided by the Office of 
------, Bureau for ------, U.S. Agency for International Development, 
under the terms of Contract No. ------. The opinions expressed herein 
are those of the author(s) and do not necessarily reflect the views of 
the U.S. Agency for International Development.''
    (b) Unless the contractor is instructed otherwise by the cognizant 
technical office, publications, videos or other information/media 
products funded under this contract and intended for general readership 
or other general use will be marked with the USAID logo and/or U.S. 
AGENCY FOR INTERNATIONAL DEVELOPMENT appearing either at the top or at 
the bottom of the front cover or, if more suitable, on the first inside 
title page for printed products, and in equivalent/appropriate location 
in videos or other information/media products. Logos and markings of co-
sponsors or authorizing institutions should be similarly located and of 
similar size and appearance.

                             (End of clause)

[57 FR 5237, Feb. 13, 1992]



Sec. 752.7035  Public notices.

    The following clause is for use when the cognizant technical office 
determines that the contract is of public interest, and that both the 
public and the Government would benefit from public notices concerning 
the contract, and requests that the Contracting Officer include the 
clause in the contract.

[[Page 98]]

                        Public Notices (DEC 1991)

    It is USAID's policy to inform the public as fully as possible of 
its programs and activities. The contractor is encouraged to give public 
notice of the receipt of this contract and, from time to time, to 
announce progress and accomplishments. Press releases or other public 
notices should include a statement substantially as follows: ``The U.S. 
Agency for International Development administers the U.S. foreign 
assistance program providing economic and humanitarian assistance in 
more than 80 countries worldwide.'' The contractor may call on USAID's 
Legislative and Public Affairs (LPA) for advice regarding public 
Notices. The contractor is requested to provide copies of notices or 
announcements to the cognizant technical officer and to USAID's 
Legislative and Public Affairs (LPA) as far in advance of release as 
possible.

                             (End of clause)

[57 FR 5237, Feb. 13, 1992, as amended at 60 FR 11913, Mar. 3, 1995]

Subpart 752.3-70--USAID Clause Matrices [Reserved]

                             PART 753_FORMS

                          Subpart 753.1_General

Sec.

Sec. 753.107 Obtaining forms.

                   Subpart 753.2_Prescription of Forms


Sec. 753.270 Prescription of USAID Forms.

                   Subpart 753.3_Illustration of Forms


Sec. 753.300 Scope of subpart.

    Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), 
as amended; E.O. 12163, Sept. 29, 1979 44 FR 56673, 3 CFR, 1979 Comp., 
p. 435.

    Source: 53 FR 50632, Dec. 16, 1988, unless otherwise noted.

                          Subpart 753.1_General



Sec. 753.107  Obtaining forms.

    Copies of any USAID Form referenced in the AIDAIR may be obtained 
from the U.S. Agency for International Development, Washington, DC 
20523-0001, Attention: M/AS/ISS, Distribution, Room B-929 N.S., or from 
the congnizant Contracting Officer.

[53 FR 50632, Dec. 16, 1988, as amended at 56 FR 2699, Jan. 24, 1991; 56 
FR 67226, Dec. 30, 1991; 59 FR 33447, June 29, 1994; 62 FR 40471, July 
29, 1997]

                   Subpart 753.2_Prescription of Forms



Sec. 753.270  Prescription of USAID forms.

    The requirements for use of USAID forms are contained in parts 701 
through 752 where the subject matter applicable to the form is 
addressed.

                   Subpart 753.3_Illustration of Forms



Sec. 753.300  Scope of subpart.

    USAID forms are not illustrated in the AIDAR. Copies of any USAID 
form prescribed in the AIDAR may be obtained as provided in 753.107.



               Sec. Appendixes A-C to Chapter 7 [Reserved]



Sec. Appendix D to Chapter 7--Direct USAID Contracts With a U.S. Citizen 
          or a U.S. Resident Alien for Personal Services Abroad

    1. General. (a) Purpose. This appendix sets forth the authority, 
policy, and procedures under which USAID contracts with a U.S. citizen 
or U.S. resident alien for personal services abroad.
    (b) Definitions. (1) Personal services contract (PSC) means a 
contract that, by its express terms or as administered, make the 
contractor personnel appear, in effect, Government employees (see FAR 
37.104).
    (2) Employer-employee relationship means an employment relationship 
under a service contract with an individual which occurs when, as a 
result of the contract's terms or the manner of its administration 
during performance, the contractor is subject to the relatively 
continuous supervision and control of a Government officer or employee.
    (3) Non-person services contract means a contract under which the 
personnel rendering the services are not subject either by the 
contract's terms or by the manner of its administration, to the 
supervision and control usually prevailing in relationships between the 
Government and its employees.
    (4) Independent contractor relationship means a contract 
relationship in which the contractor is not subject to the supervision

[[Page 99]]

and control prevailing in relationships between the Government and its 
employees. Under this relationship, the Government does not normally 
supervise the performance of the work, control the days of the week or 
hours of the day in which it is to be performed, or the location of 
performance.
    (5) Resident hire means a U.S. citizen who, at the time of hire as a 
PSC, resides in the cooperating country as a spouse or dependent of a 
U.S. citizen employed by a U.S. government agency or under any U.S. 
government-financed contract or agreement, or for reasons other than for 
employment with a U.S. government agency or under any U.S. government-
financed contract or agreement. A U.S. citizen for purposes of this 
definition also includes persons who at the time of contracting are 
lawfully admitted permanent residents of the United States.
    (6) U.S. resident alien means a non-U.S. citizen lawfully admitted 
for permanent residence in the United States.
    (7) Abroad means outside the United States and its territories and 
possessions.
    (8) USAID direct-hire employees means civilian employees appointed 
under USAID Handbook 25 procedures or superseding Automated Directive 
System (ADS) Chapters.

    2. Legal Basis. (a) Section 635(b) of the Foreign Assistance Act of 
1961, as amended (hereinafter referred to as the ``FAA'') provides the 
Agency's contracting authority.
    (b) Section 636(a)(3) of the FAA (22 U.S.C. 2396(a)(3)) authorizes 
the Agency to enter into personal services contracts with individuals 
for personal services abroad and provides further that such individuals 
``* * * shall not be regarded as employees of the U.S. Government for 
the purpose of any law administered by the Civil Service Commission.'' 
\1\
---------------------------------------------------------------------------

    \1\ The Civil Service Commission is now the Federal Office of 
Personnel Management.

    3. Applicability. (a) This appendix applies to all personal services 
contracts with U.S. citizens or U.S. resident aliens to provide 
assistance abroad under Section 636(a)(3) of the FAA.
    (b) This appendix does not apply to:
    (1) Nonpersonal services contracts with U.S. citizens or U.S. 
resident aliens; such contracts are covered by the basic text of the FAR 
(48 CFR Chapter 1) and the AIDAR (48 CFR chapter 7).
    (2) Personal services contracts with individual Cooperating Country 
Nationals (CCNs) or Third Country Nationals (TCNs). Such contracts are 
covered by Appendix J of this chapter.
    (3) Other personal services arrangements covered by USAID Handbook 
25--Employment and Promotion or superseding ADS Chapters.
    (4) Interagency agreements (e.g., PASAs and RSSAs covered by ADS 
306--Interagency Agreements.

    4. Policy. (a) General. USAID may finance, with either program or 
operating expense (OE) funds, the cost of personal services contracts as 
part of the Agency's program of foreign assistance by entering into a 
direct contract with an individual U.S. citizen or U.S. resident alien 
for personal services abroad.
    (1) Program funds. Under the authority of Section 635(h) of the FAA, 
program funds may be obligated for periods up to five years where 
necessary and appropriate to the accomplishment of the tasks involved.
    (2) Operating Expense Funds. Pursuant to USAID budget policy, OE 
funded salaries and other recurrent cost items may be forward funded for 
a period of up to three (3) months beyond the fiscal year in which these 
funds were obligated. Non-recurring cost items may be forward funded for 
periods not to exceed twenty-four (24) months where necessary and 
appropriate to accomplishment of the work. \2\
---------------------------------------------------------------------------

    \2\ If there is a need, these contracts may be written for 5 years 
also but funded only as outlined in paragraph 4(a) of this appendix.
---------------------------------------------------------------------------

    (b) Limitations on Personal Services Contracts. (1) Personal 
services contracts may only be used when adequate supervision is 
available.
    (2) Personal services contracts may be used for commercial 
activities. Commercial activities provide a product or service which 
could be obtained from a commercial source. See Attachment A of OMB 
Circular A-76 for a representative list of such activities.
    (3) Notwithstanding any other provision of USAID directives, 
regulations or delegations, U.S. citizen personal services contractors 
(USPSCs) may be delegated or assigned any authority, duty or 
responsibility delegable to U.S. citizen direct-hire employees (USDH 
employees) except that:
    a. They may not supervise U.S. direct-hire employees of USAID or 
other U.S. Government agencies. They may supervise USPSCs and non-U.S. 
citizen employees.
    b. They may not be designated as Contracting Officers or delegated 
authority to sign obligating or subobligating documents.
    c. They may represent the agency, except that communications that 
reflect a final policy, planning or budget decision of the agency must 
be cleared by a USDH employee.
    d. They may participate in personnel selection matters, but may not 
be delegated authority to make a final decision on personnel selection.
    e. Exceptions to the limitations in this paragraph (b)(3) must be 
approved by the Assistant Administrator for Management (AA/M).

[[Page 100]]

    (c) Withholdings and Fringe Benefits. (1) Personal services 
contractors (PSCs) are Government employees for purposes of the Internal 
Revenue Code (Title 26 of the United States Code) and are, therefore, 
subject to social security (FICA) and Federal income tax (FIT) 
withholdings. As employees, they are ineligible for the ``foreign earned 
income'' exclusion under the Internal Revenue Service (IRS) regulations 
(see 26 CFR 1.911-3(c)(3)).
    (2) Personal services contractors are treated on par with other 
Government employees, except for programs based on any law administered 
by the Federal Office of Personnel Management (e.g., incentive awards, 
life insurance, health insurance, and retirement programs covered by 5 
CFR Parts 530, 531, 831, 870, 871, and 890). While PSCs are ineligible 
to participate in any of these programs, the following fringe benefits 
are provided as a matter of policy:
    (i) The employer's FICA contribution for retirement purposes.
    (ii) A contribution against the actual cost of the PSC's annual 
health and life insurance costs. Proof of health and life insurance 
coverage and its actual cost to the PSC shall be submitted to the 
Contracting Officer before any contribution is made. (See also paragraph 
4(c)(3) of this appendix.)
    (A) The contribution for health insurance shall not exceed 50% of 
the actual cost to the PSC for his/her annual health insurance, or the 
maximum U.S. Government contribution for a direct-hire employee, as 
announced annually by the Office of Personnel Management, whichever is 
less. If the PSC is covered under a spouse's health insurance plan, 
where the spouse's employer pays some or all of the health insurance 
costs, the cost to the PSC for annual health insurance shall be 
considered to be zero.
    (B) The contribution for life insurance shall be up to 50% of the 
actual annual costs to the PSC for life insurance, not to exceed $500.00 
per year.
    (iii) PSCs shall receive the same percentage pay comparability 
adjustment as U.S. Government employees subject to the availability of 
funds.
    (iv) PSCs shall receive a 3% annual salary increase subject to 
satisfactory performance documented in their annual written evaluation. 
Such increase may not exceed 3% without a deviation. This 3% limitation 
also applies to extensions of the same service or negotiations for a new 
contract for the same or similar services unless a deviation has been 
approved.
    (v) PSCs shall receive the following allowances and differentials 
provided in the State Department's Standardized Regulations (Government 
Civilians Foreign Areas) on the same basis as U.S. Government employees 
(except for U.S. resident hires, see paragraph 4(d) and Section 12, 
General Provisions, Clause 22, ``U.S. Resident Hire Personal Services 
Contractors''):
    (A) Temporary lodging allowance (Section 120), \3\
---------------------------------------------------------------------------

    \3\ Mission Directors may authorize per diem in lieu of these 
allowances.
---------------------------------------------------------------------------

    (B) Living quarters allowance (Section 130), \3\
    (C) Post allowance (Section 220), \3\
    (D) Supplemental post allowance (Section 230), \3\
    (E) Separate maintenance allowance (Section 260), \4\
---------------------------------------------------------------------------

    \4\ These allowances are not authorized for short tours (i.e., less 
than a year).
---------------------------------------------------------------------------

    (F) Education allowance (Section 270), \4\
    (G) Educational travel (Section 280), \4\
    (H) Post differential (Section 500),
    (I) Payments during evacuation/authorized departure (Section 600), 
and
    (J) Danger pay (Section 650).
    (vi) Any allowance or differential that is not expressly stated in 
paragraph 4(c)(2)(v) is not authorized for any PSC unless a deviation is 
approved. The only exception is a consumables allowance if authorized 
for the post under Handbook 22 or superseding ADS Chapter.
    (vii) Health room services may be provided in accordance with the 
clause of this contract entitled ``Physical Fitness and Health Room 
Privileges.''
    (viii) PSCs are eligible to receive benefits for injury, disability, 
or death under the Federal Employees' Compensation Act since the law is 
administered by the Department of Labor not the Office of Personnel 
Management.
    (ix) PSCs are eligible to earn four hours of annual leave and four 
hours of sick leave for each two week period. However, PSCs with 
previous PSC service (not previous U.S. Government civilian or military 
service) earn either six hours of annual leave for each two week period 
if their previous PSC service exceeds 3 years (including 10 hours annual 
leave for the final pay period of a calendar year), or eight hours of 
annual leave for each two week period if their previous PSC service 
exceeds 15 years.
    (3) A PSC who is a spouse of a current or retired Civil Service, 
Foreign Service, or Military Service member and who is covered by their 
spouse's Government health or life insurance policy is ineligible for 
the contribution under paragraph 4(c)(2)(ii) of this appendix.
    (4) Retired U.S. Government employees shall not be paid additional 
contributions for health or life insurance under their contract (since 
the Government will normally have already paid its contribution for the 
retiree) unless the employee can prove to the satisfaction of the 
Contracting Officer that his/

[[Page 101]]

her health and life insurance does not provide or specifically excludes 
coverage overseas. If coverage overseas is excluded, then eligibility as 
cited in paragraph 4(c)(3) applies.
    (5) Retired U.S. Government employees may be awarded Personal 
Services Contracts without any reduction in or offset against their 
Government annuity.
    (d) U.S. Resident Hire Personal Services Contractors. U.S. resident-
hire PSCs are not eligible for any fringe benefits (except contributions 
for FICA, health insurance, and life insurance), including differentials 
and allowances unless such individuals can demonstrate to the 
satisfaction of the Contracting Officer that they have received similar 
benefits and allowances from their immediately previous employer in the 
cooperating country, or the Mission Director may determine that payment 
of such benefits would be consistent with the Mission's policy and 
practice and would be in the best interests of the U.S. Government.
    (e) Determining salary for personal services contractors. (1) There 
are two separate and distinct methods of establishing a salary for 
personal services contractors. Use of method number 1 is required unless 
justified and approved as provided for in paragraph (e)(1)(ii).
    (i) Method 1: Salaries for Personal Services Contractors shall be 
established based on the market value in the United States of the 
position being recruited for. This requires the Contracting Officer in 
coordination with the Technical Officer to determine the correct market 
value (a salary range) of the position to be filled. This method is 
required in establishing salary for all PSCs unless method 2 is 
authorized as provided for in paragraph (e)(1)(ii). Contract Information 
Bulletin (CIB) 96-8 dated February 23, 1996 provides a guide which 
contains information concerning Preparation of Scopes of Work, 
Determination of Salary Class Grade, Salary Class Bench Marks and Salary 
Class Review. The market value of the position then becomes the basis 
along with the applicants' certified salary history on the SF 171, 
``Personal Qualifications Statement'' for salary negotiations by the 
Contracting Officer. The SF 171 must be retained in the permanent 
contract file. Any position which is determined to be above the GS-13 
equivalent and exceeds six months in duration must be classified by M/
HR/POD. The crucial point is the establishment of a realistic and 
reasonable market value for a job. The final determination regarding the 
reasonableness of a salary level rests with the Contracting Officer. 
Paying salaries using this method avoids ``rank in person'' salaries 
which are in excess of the value of the job being contracted for.
    (ii) Method 2: If approved in writing by the Mission Director or the 
cognizant Assistant Administrator, based on written justification, 
salary may be negotiated based on the applicant's current earnings 
adjusted in accordance with the factors set out in paragraphs (e)(1)(ii) 
(A) through (C). This approval requirement cannot be redelegated. 
Current earnings must be certified by the contractor on the SF 171, (see 
paragraph 6(b)(3) of this appendix). This is guidance for establishing 
initial salaries, not subsequent increases, for the same contractor 
performing the same function.
    (A) As a rule, up to a 3 percent increase above current earnings may 
be given. However, a 3 percent increase is awarded only to a PSC whose 
earnings are based on a period of twelve months or more; 2 percent for 
established earnings of less than twelve months but not less than four 
months; or 1 percent for established earnings during the past four 
months.
    (B) Additional percentages may be given for the following factors. 
If a PSC has worked in a developing country for more than two years, an 
additional 1 percent may be awarded. Education related to the area of 
specialization and above the minimum qualification required may warrant 
an additional 1 percent, and those specialties for which there is keen 
competition in the employment market or a serious shortage category 
nationwide may be awarded an additional 2 percent. In addition, related 
technical experience over 5 years may increase the percentage by 1 and 
over ten years by 3.
    (C) All requests for an initial rate of pay above 10 percent over 
current earnings must be approved in writing by the appropriate 
Assistant Administrator or Mission Director. Current earnings are actual 
earnings for work reasonably related to the position for which the 
applicant is being considered. Paragraphs 4(e)(1)(ii) (A) through (C) 
apply only to salary setting method number 2 in paragraph 4 (e)(1)(ii).
    (2) When an applicant has no current earnings history (e.g., a 
person returning to the workforce after an absence of a number of years) 
or when an applicant's current earnings history doesn't accurately 
reflect the applicant's job market worth (e.g., a Peace Corps 
volunteer), every effort should be made to establish a market value for 
the position as a basis for negotiation, notwithstanding the lack of a 
current earnings history, provided that the applicant has the full 
qualifications for the job and could command a similar salary in the 
open job market.
    (3) This appendix applies the ``USAID Contractor Salary Threshold 
(USAID CST)'' policy in Automated Directives System (ADS) Chapter 
302.3.6.8 to salaries for U.S. PSCs. Salaries in excess of the USAID 
CST, which is equivalent to the maximum rate for Federal agencies 
without a certified SES performance appraisal system, must be approved 
by the M/OAA Director in accordance with the approval procedures in ADS

[[Page 102]]

302.3.6.8(e). This approval cannot be re-delegated.
    (f) Incentive awards. U.S. PSCs are not eligible to receive monetary 
awards. They are eligible for non-monetary awards such as certificates.
    (g) Annual salary increase. PSC contracts written for more than one 
year should provide for a 3% annual increase based on satisfactory 
performance documented in their annual written evaluations.
    (h) Pay comparability adjustment. PSCs shall receive the same 
percentage pay comparability adjustment as that received by U.S. 
Government employees subject to the availability of funds.
    (i) Subcontracting. PSCs are U.S. Government employees and may not 
be called upon (or permitted) to subcontract out any part of their work. 
Funds for subcontracting have no place in the budget of a personal 
services contract. Support services, equipment, and supplies (e.g., 
typing and report preparation, paper, pens, computers, and furniture) 
should be furnished to PSCs just as they would be to direct-hire 
employees. To the extent that direct-hire personnel may be authorized to 
purchase supporting services or supplies under a travel authorization, 
so may PSCs; otherwise, contracts for personal services should not 
contain any funds for procurement.

    5. Soliciting for Personal Services Contracts. (a) Technical 
Officer's responsibilities. The Technical Officer will prepare a written 
detailed statement of duties and a statement of minimum qualifications 
to cover the position being recruited for. The statement shall be 
included in the procurement request (the Acquisition & Assistance 
Request Document) e.g., the request shall also include the following 
additional information as a minimum:
    (1) The specific foreign location(s) where the work is to be 
performed, including any travel requirements (with an estimate of 
frequency);
    (2) The length of the contract, with beginning and ending dates, 
plus any options for renewal or extension;
    (3) The basic education, training, experience, and skills required 
for the position;
    (4) An estimate of what a comparable GS/FS equivalent position 
should cost, including basic salary, allowances, and differentials, if 
appropriate; and
    (5) A list of Government or host country furnished items (e.g., 
housing).
    (b) Contracting Officer's responsibilities. (1) The Contracting 
Officer will prepare the solicitation for personal services which shall 
contain:
    (i) Three sets of SF 171s and SF 171As. (Upon receipt, one copy of 
each SF 171 and SF 171A shall be forwarded to the Project Officer.)
    (ii) A detailed statement of duties or a completed position 
description for the position being recruited for.
    (iii) A copy of the prescribed contract Cover Page, Contract 
Schedule, General Provisions as appropriate, as well as the FAR Clauses 
to be incorporated in full text and by reference.
    (iv) A copy of the USAID General Notice entitled ``Employee Review 
of the New Standards of Conduct''.
    (2) The Contracting Officer shall comply with the requirements of 
(48 CFR) AIDAR 706.302-70(c) as detailed in paragraph 5(c) except those 
recruited from the U.S.
    (c) Competition. (1) Under (48 CFR) AIDAR 706.302-70(b)(1), Personal 
Services Contracts (except those recruited from the U.S.) are exempt 
from the requirements for full and open competition with two limitations 
that must be observed by Contracting Officers:
    (i) Offers are to be requested from as many potential offerors as is 
practicable under the circumstances, and
    (ii) A justification supporting less than full and open competition 
must be prepared in accordance with FAR 6.303.
    (2) PSCs with Untied States citizens or resident aliens recruited 
from outside the cooperating country. Solicitations for PSCs recruited 
outside the cooperating country must be publicized via the Agency's 
External Home Page on the Internet under the caption ``Business & 
Procurement, USAID Procurements.'' Instructions regarding how to access 
the External Internet and the information to be provided have been 
approved and included in a CIB. A justification under FAR 6.303 is not 
required when this procedure is followed.
    (3) A class justification was approved by the USAID Procurement 
Executive to satisfy the requirements of (48 CFR) AIDAR 706.302-70(c)(2) 
for a justification in accordance with FAR 6.303. This class 
justification for Personal Services Contracts with U.S. Citizens may 
only be used for those who are recruited locally subject to the 
following conditions:
    (i) The position was publicized locally in accordance with 
established Mission policy or procedure, or the procedures in paragraph 
5(c)(ii) was followed;
    (ii) As an alternative to the procedures in paragraphs 5(c) (i) and 
(ii), at least 3 individuals were considered by consulting source lists 
(e.g., applications or resumes on hand) or conducting other informal 
solicitation.
    (iii) Extensions or renewals with the same individual for continuing 
services do not need to be publicized.
    (iv) A copy of the class justification (which was distributed to all 
USAID Contracting Officers via Contract Information Bulletin) must be 
included in the contract file, together with a written statement, signed 
by the Contracting Officer, that the contract is being awarded pursuant 
to (48 CFR) AIDAR

[[Page 103]]

706.302-70(b)(1); that the conditions for use of this class 
justification have been met; and that the cost of the contract is fair 
and reasonable.
    (4) If the appropriate competitive procedure in paragraph 5(3) is 
not followed, the Contracting Officer must prepare a separate 
justification as required under (48 CFR) AIDAR 706.302-70(c)(2).
    (5) Since the award of a Personal Services Contract is based on 
technical qualifications, not price, and since the SF 171, ``Personal 
Qualifications Statement'', and SF 171A, ``Continuation Sheet for 
Standard Form 171'', are used to solicit for such contracts, FAR 
subparts 15.4 and 15.5 and FAR parts 52 and 53 are inappropriate and 
shall not be used. Instead, the solicitation and selection procedures 
outlined in this Appendix shall govern.

    6. Negotiating a Personal Services Contract. Negotiating a Personal 
Services Contract is significantly different from negotiating a 
nonpersonal services contract because it establishes an employer-
employee relationship; therefore, the selection procedures are more akin 
to the personnel selection procedures.
    (a) Technical Officer's responsibilities. The Technical Officer 
shall be responsible for reviewing and evaluating the applications 
(i.e., SF 171s) received in response to the solicitation issued by the 
Contracting Officer. If deemed appropriate, interviews may be conducted 
with the applicants before the final selection is submitted to the 
Contracting Officer.
    (b) Contracting Officer's responsibilities. (1) The Contracting 
Officer shall forward a copy of each SF 171 received under the 
solicitation to the Project Officer for evaluation.
    (2) On receipt of the Technical Officer's recommendation, the 
Contracting Officer shall conduct negotiations with the recommended 
applicant. Normally, the Contracting Officer shall negotiate only the 
salary (see the salary setting coverage in paragraph 4(e) of this 
Appendix). The terms and conditions of the contract, including 
differentials and allowances, are not negotiable or waivable without a 
properly approved deviation (see (48 CFR) AIDAR 701.470). If the 
Contracting Officer can negotiate a salary that is fair and reasonable, 
then the award shall be made.
    (3) The Contracting Officer shall use the certified salary history 
on the SF 171 as the basis for salary negotiations, along with the 
market value of the position being recruited for (unless approval not to 
use market value has been granted under paragraph 4(e)(1)(ii)), and the 
Technical Officer's cost estimate.
    (4) The Contracting Officer will obtain two copies of IRS Form W-4, 
``Employee's Withholding Allowance Certificate'', from the successful 
applicant. (Upon receipt, the Contracting Officer will forward one copy 
of the W-4 to the Office of the Controller.)
    (5) Security clearance is required for all U.S. citizens entering 
into USAID PSCs. The Contracting Officer will obtain four sets of SF 86, 
``Security Investigation Data for Sensitive Position'', from the 
successful applicant and forward them to the Office of Security. PSCs 
may receive a preliminary clearance and be placed under contract prior 
to receipt of clearance provided the appropriate paper work has been 
completed, reviewed by IG/SEC/PSI and acknowledged as a ``no objection'' 
to the appropriate Mission. See General Provision 24 in section 12 of 
this appendix.

    7. Executing a Personal Services Contract. Contracting Officers or 
Heads of Contracting Activities, whether USAID/W or Mission, may execute 
Personal Services Contracts, provided that the amount of the contract 
does not exceed the contracting authority that has been redelegated to 
them. In executing a Personal Services Contract, the Contracting Officer 
is responsible for insuring that:
    (a) The proposed contract is within his/her delegated authority;
    (b) A Request Number covering the proposed contract has been 
received;
    (c) The position has been classified by either the Mission or M/HR/
POD (see CIB 96-8) and the classification is in the contract file;
    (d) The proposed Statement of Duties is contractible, contains a 
statement of minimum qualifications from the technical office requesting 
the services, and is suitable to the use of a Personal Services Contract 
in that:
    (1) Performance of the proposed work requires or is best suited for 
an employer-employee relationship, and is thus not suited to the use of 
a non-personal services contract;
    (2) The Statement of Duties does not require performance of any 
function normally reserved for Federal employees (see paragraph 4(b) of 
this Appendix); and
    (3) There is no apparent conflict of interest involved (if the 
Contracting Officer believes that a conflict of interest may exist, the 
question should be referred to the cognizant legal counsel);
    (e) Selection of the contractor is documented and justified. (48 
CFR) AIDAR 706.302-70(b)(1) provides an exception to the requirement for 
full and open competition for Personal Services Contracts abroad (see 
paragraph 5(c) of this appendix);
    (f) The standard contract format prescribed for Personal Services 
Contracts (Sections 10, 11, 12 and 13 to this appendix) is used; or that 
any necessary deviations are processed as required by (48 CFR) AIDAR 
701.470.


[[Page 104]]


    (Note: The prescribed contract format is designed for use with 
contractors who are residing in the U.S. when hired. If the contract is 
with a U.S. citizen residing in the cooperating country when hired, 
contract provisions governing physical fitness and travel/transportation 
expenses, and home leave, allowances, and orientation should be suitably 
modified (see paragraph 4(d) of this appendix)).

These modifications are not considered deviations subject to (48 CFR) 
AIDAR 701.470. (Justification and explanation of these modifications is 
to be included in the contract file);
    (g) Orientation is arranged in accordance with General Provision 23 
in section 12 of this appendix;
    (h) The contractor has submitted the names, addresses, and telephone 
numbers of at least two persons who may be notified in the event of an 
emergency (this information is to be retained in the contract file);
    (i) The contract is complete and correct and all information 
required on the contract Cover Page (USAID Form 1420-36A) has been 
entered;
    (j) The contract has been signed by the Contracting Office and the 
contractor, and fully executed copies are properly distributed;
    (k) The following clearances, approvals and forms have been 
obtained, properly completed, and placed in the contract file before the 
contract is signed by both parties;
    (1) Evidence of job classification in the file by the Mission except 
for grade equivalents above GS-13. For those positions with grade 
equivalent above GS-13, evidence of job classification done by M/HR/POD;
    (2) Security clearance, including the completed SF 86, to the extent 
required by USAID Handbook 6, Security or superseding ADS Chapter, (see 
General Provisions 14 and 24 in section 12 of this appendix);
    (3) Mission, host country, Human Resources Office, and technical 
office clearance, as appropriate;
    (4) Medical examinations and certifications as required by the 
contract general provision entitled ``Physical Fitness and Health Room 
Privileges'';
    (5) One original executed IRS Form W-4 entitled ``Employee's 
Withholding Allowance Certificate'', and one copy, shall be obtained. 
The original shall be sent to the Controller of the paying office and 
one shall be placed in the contract file;
    (6) Evidence of DAA/HR clearance that the position may be filled by 
PSC.
    (7) The approval for any salary in excess of the ``USAID Contractor 
Salary Threshold (USAID CST)'', which is equivalent to the maximum rate 
for Federal agencies without a certified SES performance appraisal 
system, in accordance with approval procedures in ADS 302.3.6.8(e) as 
required in Section 4.(e)(3);
    (8) A copy of the class justification or other appropriate 
explanation and support required by (48 CFR) AIDAR 706.302-70, if 
applicable;
    (9) Any deviation to the policy or procedures of this appendix, 
processed and approved under (48 CFR) AIDAR 701.470;
    (10) A fully executed SF 171, and a copy of the position 
classification, and approved deviation, if appropriate;
    (11) The Memorandum of Negotiation; and
    (12) The Contracting Officer's signed certification that competition 
requirements have been satisfied as described in paragraph 5(c) of the 
policy text of this Appendix. The certification shall be a part of the 
Memorandum of Negotiations.
    (l) Funds for the contract are properly obligated to preclude 
violation of the Anti-Deficiency Act, 31 U.S.C. 1341 (the Contracting 
Officer ensures that the contract has been properly recorded by the 
appropriate accounting office prior to its release for the signature of 
the selected contractor);
    (m) The contractor receives and understands the USAID General Notice 
entitled ``Employee Review of the New Standards of Conduct'' and a copy 
is attached to each contract as provided for in paragraph (c) of General 
Provision 1, section 12;
    (n) Agency conflict of interest requirements as set out in the 
General Notice ``Employee Review of the New Standards of Conduct'' are 
met by the contractor prior to his/her reporting for duty;
    (o) A copy of a Checklist for Personal Services contractors which 
may be in the format set out in this section or another format 
convenient for the Contracting Officer, provided that a memorandum 
containing all of the information described in this section 7 shall be 
prepared for each PSC and placed in the contract file;
    (p) The contractor understands that he/she is an employee of the 
United States for purposes of the Foreign Assistance Act of 1961, as 
amended, and the Internal Revenue Code (Title 26 of the United States 
Code). This subjects the employee to withholding for both FICA and 
Federal Income Tax and precludes the employee from receiving the Federal 
Earned Income Tax exclusion of 26 U.S.C. Section 911. See Special Note 
on the Cover Page of USAID Form 1420-36.
    (q) The contractor also understands that he/she may commence work 
prior to the completion of the security clearance. However, until such 
time as clearance is received, the contractor may not have access to 
classified or administratively controlled materials. Failure to obtain 
clearances will constitute cause for termination.

    8. Post Audit. The Inspector General, or his/her designee, audits 
the Personal Services Contracts of all contracting activities for

[[Page 105]]

the purpose of ensuring conformance to applicable policy and 
regulations.

    9. Contracting Format. The prescribed Contract Cover Page, Contract 
Schedule, General Provisions, and appropriate Federal Acquisition 
Regulations (FAR) clauses for Personal Services Contracts covered by 
this appendix are included as follows:
    10. Form USAID 1420-36, ``Cover Page'' and ``Schedule''.
    11. Optional Schedule With a U.S. Citizen or U.S. Resident Alien.
    12. General Provisions.
    13. FAR Clauses to be Incorporated in Full Text in Personal Services 
Contracts.
    14. FAR Clauses to be incorporated by reference in Personal Services 
Contracts.

    10. Form USAID 1420-36, ``Cover Page'' and ``Schedule''.

    Contract With a U.S. Citizen or U.S. Resident Alien for Personal 
         Services Abroad--Form AID 1420-36A (11/96) (Cover Page)

[[Page 106]]

[GRAPHIC] [TIFF OMITTED] TR23JY97.000

                          Privacy Act Statement

    This information is provided pursuant to Public Law 93-579 (Privacy 
Act of 1974), December 31, 1974, for individuals who complete this form.
    The Executive Office of the President, Office of Management and 
Budget has required

[[Page 107]]

that all departments and agencies comply with the reporting requirements 
of Section 6041 of the Internal Revenue Code, Section 6041 states that 
all departments and agencies making payments totalling $600 or more in 
one year to a recipient for services provided must be reported to the 
Internal Revenue Service (IRS). The SSN and all financial numbers will 
be disclosed to U.S. Agency for International Development (USAID) 
payroll office personnel and personnel in the Department of the 
Treasury, Division of Disbursements. USAID will use this SSN to complete 
Form W-2 of the Code on employee compensation. Disclosure by the 
personal services contractor of the SSN is necessary to obtain the 
services, benefits or processes provided by this contract. Disclosure of 
the SSN may be made outside USAID (a) pursuant to any applicable routine 
use listed in USAID's Notice for implementing the Privacy Act as 
published in the Federal Register or (b) when disclosure by virtue of a 
contract being a public document after signatures is authorized under 
the Freedom of Information Act.

                                Schedule

    (The Illustrated Schedule consists of this Table of Contents--
Articles I-VI, and the General Provisions.)

                            Table of Contents

Article I--Statement of Duties
Article II--Period of Service Overseas
Article III--Contractor's Compensation and Reimbursement in U.S. Dollars
Article IV--Costs Reimbursable and Logistic Support
Article V--Precontract Expenses
Article VI--Additional Clauses

    General Provisions:
    The following provisions numbered as shown below omitting number(s) 
------, are the General Provisions (GPs) of this Contract:

1. Definitions
2. Laws and Regulations Applicable Abroad
3. Physical Fitness and Health Room Privileges
4. Workweek and Compensation (Pay Comparability Adjustments)
5. Leave and Holidays
6. Differential and Allowances
7. Social Security, Federal Income Tax and Foreign Earned Income
8. Advance of Dollar Funds
9. Insurance
10. Travel and Transportation Expenses
11. Payment
12. Conversion of U.S. Dollars to Local Currency
13. Post of Assignment Privileges
14. Security Requirements
15. Contractor-Mission Relationships
16. Termination
17. Release of Information
18. Notices
19. Reports
20. Use of Pouch Facilities
21. Biographical Data
22. Resident Hire PSC
23. Orientation and Language Training
24. Conditions for Contracting Prior to Receipt of Security Clearance
25. Medical Evacuation Services
26. Governing Law

    For each tour of duty, attach the applicable General Provisions.
    Schedule: (Note: Use of the following Schedule Articles are not 
mandatory. They are intended to serve as guidelines for contracting 
offices in drafting contract schedules. Article language may be changed 
to suit the needs of the particular contract).

                     Article I--Statement of Duties

    (The statement of duties shall include:
    A. General statement of the purpose of the contract.
    B. Statement of duties to be performed.
    C. Any USAID consultation or orientation.)

                 Article II--Period of Service Overseas

    Within ------ days after written notice from the Contracting Officer 
that all clearances, including the doctor's statement of medical opinion 
required under General Provision Clause 4, have been received or unless 
another date is specified by the Contracting Officer in writing, the 
contractor shall proceed to ------ where he/she shall promptly commence 
performance of the duties specified above. The contractor's period of 
service overseas shall be approximately ------ in ------. (Specify time 
of duties in each location as well as authorized stopovers with purpose 
of each.)

Article III--Contractor's Compensation and Reimbursement in U.S. Dollars

    A. Except to the extent reimbursement is payable in the currency of 
the Cooperating Country pursuant to Article IV, USAID shall pay the 
contractor compensation after it has accrued and reimburse him/her in 
U.S. dollars for necessary and reasonable costs actually incurred by 
him/her in the performance of this contract within the categories listed 
in paragraph C, below, and subject to the conditions and limitations 
applicable thereto as set out herein and in the attached General 
Provisions (GP).
    B. The amount budgeted and available as personal compensation to the 
contractor is calculated to cover a calendar period of approximately --
---- (days) (weeks) (months) (years) which is to include:
    (1) vacation, sick, and home leave which may be earned during the 
contractor's tour of duty (GP Clause 5);

[[Page 108]]

    (2) ------ days for authorized travel (GP Clause 10); and
    (3) ------ days for orientation and consultation in the United 
States (GP Clause 23).
    C. Allowable Costs: 1. Compensation at the rate of $------ per 
(year) (month) (week) (day). Adjustments in compensation (pay) for 
periods when the contractor is not in compensable pay status shall be 
calculated as follows:
    Rate of $------ per (day) (hour).
    Contingency for Compensation (Pay Comparability) Adjustments. $----
--.
    Annual Salary increase (3%) $------.
    2. Overtime (Unless specifically authorized in the Schedule of this 
contract, no overtime hours shall be allowed hereunder.) $------.
    * 3. Overseas Differential (Ref. GP Clause No. 6.) Rate $------ and 
Contingency $------=Total $------.
---------------------------------------------------------------------------

    * If post differential is applicable to the assigned post, a 
contingency for the adjusted amount of differential resulting from 
compensation (pay comparability) adjustment should be included.
---------------------------------------------------------------------------

    ** 4. Allowances in Cooperating Country (Ref. GP Clause 6.) $------.
---------------------------------------------------------------------------

    ** Do not include the value of any costs to be paid or reimbursed in 
local currency.
---------------------------------------------------------------------------

    ** 5. Travel and Transportation (Ref. GP Clause 10.) (Includes the 
value of GTRs furnished by the Government, not payable to contractor). 
$------.
    a. United States $------
    b. International $------
    c. Cooperating and Third Country $------
    Subtotal Item 5 $------
    ** 6. Subsistence or Per Diem (Ref. GP Clause 10.)
    a. Untied States $------
    b. International $------
    c. Cooperating and Third Country $------.
    Subtotal Item 6 $------
    7. Other Direct Costs.
    a. Health and Life Insturance $------
    b. Precontract Costs, passport, visa, inoculations, etc. (Ref. GP 
Clause 8.) $------
    c. Physical Examination (Ref. GP Clause 3.) $------
    d. Communications, Miscellaneous. $------
    Subtotal Item 7 $------
    8. F.I.C.A.-U.S.G. Contribution (not payable to contractor). $------
    D. Maximum U.S.-Dollar Obligation:
    In no event shall the maximum U.S.-dollar obligation under this 
contract exceed $------. Contractor shall keep a close account of all 
obligations he/she incurs and accrues hereunder and promptly notify the 
Contracting Officer whenever in his/her opinion the said maximum is not 
sufficient to cover all compensation and costs reimbursable in U.S. 
dollars which he/she anticipates under the contract.

           Article IV--Costs Reimbursable and Logistic Support

    A. General: The contractor shall be provided with or reimbursed in 
local currency (------) for the following:

                               [Complete]

    B. Method of Payment of Local Currency Costs: Those contract costs 
which are specified as local currency costs in paragraph A above, if not 
furnished in kind by the cooperating government or the Mission, shall be 
paid to the contractor in a manner adapted to the local situation, based 
on vouchers submitted in accordance with General Provision Clause 11. 
The documentation for such costs shall be on such forms and in such 
manner as the Mission Director shall prescribe.

                               [Complete]

                     Article V--Precontract Expenses

    No expense incurred before execution of this contract will be 
reimbursed unless such expense was incurred after receipt and acceptance 
of a precontract expense letter issued to the contractor by the 
Contracting Officer, and then only in accordance with the provisions and 
limitations contained in such letter. The rights and obligations created 
by such letter shall be considered as merged into this contract.

                     Article VI--Additional Clauses

    (Additional Schedule Clauses may be added such as the implementation 
of General Provisions or Additional Clauses.)

    11.Optional Schedule With a U.S. Citizen or U.S. Resident Alien

     A U.S. Citizen or a U.S. Resident Alien PSC Contract No. ------

                            Table of Contents

                           (Optional Schedule)

    (Use of the Optional Schedule is not mandatory. It is intended to 
serve as an alternate procedure for OE funded U.S. PSCs or U.S. Resident 
Alien PSCs. The Schedule is for use when the Contracting Officer 
anticipates incremental recurring cost funded contracts.
    Use of the Optional Schedule eliminates the need to amend the 
contract each time funds are obligated. However, the Contracting Officer 
is required to amend each contract not less than twice during a 12 month 
period to ensure that the contract record of obligations is up to date 
and agrees with the figures in the master funding document.)
    The Schedule on pages ------ thru ------ consists of this Table of 
Contents and the following Articles:

Article I--Statement of Duties

[[Page 109]]

Article II--Period of Service Overseas
Article III--Contractor's Compensation and Reimbursement in U.S. Dollars
Article IV--Costs Reimbursable and Logistic Support
Article V--Precontract Expenses
Article VI--Additional Clauses

    General Provisions:
    The following provisions, numbered as shown below, omitting 
number(s) ------, are the General Provisions (GP) of this Contract:

1. Definitions
2. Laws and Regulations Applicable Abroad
3. Physical Fitness and Health Room Privileges
4. Workweek and Compensation (Pay Comparability Adjustments)
5. Leave and Holidays
6. Differential and Allowances
7. Social Security and Federal Income Tax
8. Advance of Dollar Funds
9. Insurance
10. Travel and Transportation Expenses
11. Payment
12. Conversion of U.S. Dollars of Local Currency
13. Post of Assignment Privileges
14. Security Requirements
15. Contractor-Mission Relationships
16. Termination
17. Release of Information
18. Notices
19. Reports
20. Use of Pouch Facilities
21. Biographical Data
22. Resident Hire PSC
23. Orientation and Language Training
24. Conditions for Contracting Prior to Receipt of Security Clearance
25. Medical Evacuation Services
26. Governing Law

    For each tour of duty, attach the applicable General Provisions.

                     Article I--Statement of Duties.

    (The statement of duties shall include:
    A. General statement of the purpose of the contract.
    B. Statement of duties to be performed.
    C. Any USAID consultation or orientation.)

                 Article II--Period of Service Overseas.

    Within ------ days after written notice form the Contracting Officer 
that all clearances, including the doctor's statement of medical opinion 
required under General Provision Clause 3, have been received or unless 
another date is specified by the Contracting Officer in writing, the 
contractor shall proceed to ------ where he/she shall promptly commence 
performance of the duties specified above. The contractor's period of 
service overseas shall be approximately ------ in ------. (Specify time 
of duties in each location as well as authorized stopovers with purpose 
of each.)

    Article III--Contractor's Compensation and Reimbursement in U.S. 
                                Dollars.

    A. Except to the extent reimbursement is payable in the currency of 
the Cooperating Country pursuant to Article IV, USAID shall pay the 
contractor compensation after it has accrued and reimburse him/her in 
U.S. dollars for necessary and reasonable costs actually incurred by 
him/her in the performance of this contract within the categories listed 
in paragraph C, below, and subject to the conditions and limitations 
applicable thereto as set out herein and in the attached General 
Provisions (GP).
    B. The amount budgeted and available as personal compensation to the 
contractor is calculated to cover a calendar period of approximately --
---- (days) (weeks) (months) (years) which is to include:
    1. Vacation, sick, and home leave which may be earned during the 
contractor's tour of duty (GP Clause 5);
    2. ------ days for authorized travel (GP Clause 10); and
    3. ------ days for orientation and consultation in the United States 
(GP Clause 23).
    C. Allowable Costs: 1. The following illustrative budget details 
allowable costs under this contract and provides estimated incremental 
recurrent cost funding in the total amount shown. Additional funds for 
the full term of this contract will be provided by the preparation of a 
master PSC funding document issued by the Mission Controller for the 
purpose of providing additional funding for a specific period. The 
master PSC funding document will be attached to this contract and will 
form a part of the executed contract while also serving to amend the 
budget.
    2. Compensation at the rate of $------ per (year) (month) (week) 
(day). Adjustments in compensation (pay) for periods when the contractor 
is not in compensable pay status shall be calculated as follows:
    Rate of $------ per (day) (hour).
    Contingency for Compensation (Pay Comparability Adjustments.) $----
--
    Annual Salary increase (3%) $------
    3. Overtime (Unless specifically authorized in the Schedule of this 
contract, no overtime hours shall be allowed hereunder.) $------
    * 4. Overseas Differential (Ref. GP Clause No. 6.) Rate $------ and 
Contingency $------ = Total $------.
    ** 5. Allowances in Cooperating Country (Ref. GP Clause 6.) $------
---------------------------------------------------------------------------

    * If post differential is applicable to the assigned post, a 
contingency for the adjusted amount of differential resulting from 
compensation (pay comparability) adjustment should be included.

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

[[Page 110]]

    ** 6. Travel and Transportation (Ref. GP Clause 10.) (Includes the 
value of GTRs furnished by the Government, not payable to contractor). 
$------.
---------------------------------------------------------------------------

    ** Do not include the value of any costs to be paid or reimbursed in 
local currency.
---------------------------------------------------------------------------

    a. United States $------
    b. International $------
    c. Cooperating and Third Country $------
    Subtotal Item 6 $------
    **7. Subsistence or Per Diem (Ref. GP Clause 10.)
    a. United States $------
    b. International $------
    c. Cooperating and Third Country $------
    Subtotal Item 7 $------
    **8. Other Direct Costs
    a. Health and Life Insurance (Ref. GP Clause 9.) $------
    b. Precontract Costs, passport, visa, inoculations, etc. (Ref. GP 
Clause 8.) $------
    c. Physical Examination (Ref. GP Clause 3.) $------
    d. Communications, Miscellaneous Subtotal Item 8 $------
    9. F.I.C.A.--U.S.G. contribution (not payable to contractor). $----
--
    D. Maximum U.S.-Dollar Obligation: In no event shall the maximum 
U.S.-dollar obligation under this contract exceed $------.
    E. Salary changes and personnel-related contract actions will be 
made by processing the same forms as used in making such changes and 
actions for direct-hire employees. When issued by the Contracting 
Officer, the forms utilized will be attached to the contract and will 
form a part of the contract terms and conditions.
    F. Any adjustment or increase in the compensation granted to direct-
hire employees will be allowed for in PSCs subject to the availability 
of funds. Such an adjustment will be effected by a mass pay adjustment 
notice from the Contracting Officer, which will be attached to the 
contract and form a part of the executed contract.
    G. At the end of each year of satisfactory service, PSC contractors 
will be eligible to receive an increase equal to 3% pending availability 
of funds provided their services have been satisfactory. Such increase 
will be effected by the execution of an SF-1126, payroll change slip 
which is to be attached to each contract and each action forms a part of 
the official contract file.
    H. The master PSC funding document may not exceed the term or 
estimated total cost of this contract. Notwithstanding that additional 
funds are obligated under this contract through the issuance and 
attachment of the master PSC funding document, all other contract terms 
and conditions remain in full effect.

           Article IV--Costs Reimbursable and Logistic Support

    A. General: The contractor shall be provided with or reimbursed in 
local currency (------) for the following:

                               [Complete]

    B. Method of Payment of Local Currency Costs: Those contract costs 
which are specified as local currency costs in paragraph A above, if not 
furnished in kind by the cooperating government or the Mission, shall be 
paid to the contractor in a manner adapted to the local situation, based 
on vouchers submitted in accordance with General Provision Clause 12. 
The documentation for such costs shall be on such forms and in such 
manner as the Mission Director shall prescribe.

                     Article V--Precontract Expenses

    No expense incurred before execution of this contract will be 
reimbursed unless such expense was incurred after receipt and acceptance 
of a precontract expense letter issued to the contractor by the 
Contracting Officer, and then only in accordance with the provisions and 
limitations contained in such letter. The rights and obligations created 
by such letter shall be considered as merged into this contract.

                     Article VI--Additional Clauses

    (Additional Schedule Clauses may be added such as the implementation 
of General Provisions or Additional Clauses.)

    12. General Provisions

   Contract With a U.S. Citizen or a U.S. Resident Alien for Personal 
                             Services Abroad

    The following clauses are to be used (when applicable), for both 
tours of duty of less than 1 year as well as 1 year or more.

                            Index of Clauses

1. Definitions
2. Compliance with Laws and Regulations Applicable Abroad
3. Physical Fitness and Health Room Privileges
4. Workweek and Compensation (Pay Comparability Adjustments)
5. Leave and Holidays
6. Differential and Allowances
7. Social Security, Federal Income Tax, and Foreign Earned Income
8. Advance of Dollar Funds
9. Insurance
10. Travel and Transportation Expenses
11. Payment
12. Conversion of U.S. Dollars to Local Currency
13. Post of Assignment Privileges
14. Security Requirements
15. Contractor-Mission Relationships
16. Termination

[[Page 111]]

17. Release of Information
18. Notices
19. Reports
20. Use of Pouch Facilities
21. Biographical Data
22. U.S. Resident Hire Personal Services Contractor
23. Orientation and Language Training
24. Conditions for Contracting Prior to Receipt of Security Clearance
25. Medical Evacuation (MEDEVAC) Services
26. Governing Law

                       1. Definitions (June 1990)

    (a) USAID shall mean the U.S. Agency for International Development.
    (b) Administrator shall mean the Administrator or the Deputy 
Administrator of USAID.
    (c) Contracting Officer shall mean a person with the authority to 
enter into, administer, and/or terminate contracts and make related 
determinations and findings. The term includes certain authorized 
representatives of the Contracting Officer acting within the limits of 
their authority as delegated by the Contracting Officer.
    (d) Contractor shall mean the individual engaged to serve under this 
contract.
    (e) Cooperating Country shall mean the foreign country in or for 
which services are to be rendered hereunder.
    (f) Cooperating Government shall mean the government of the 
Cooperating Country.
    (g) Government shall mean the United States Government.
    (h) Local currency shall mean the currency of the Cooperating 
Country.
    (i) Mission shall mean the United States USAID Mission, or principal 
USAID office, in the Cooperating Country, or USAID/Washington (USAID/W).
    (j) Mission Director shall mean the principal officer in the Mission 
in the Cooperating Country, or his/her designated representative.
    (k) Technical Officer shall mean the USAID official to whom the 
contractor reports, and who is responsible for monitoring the 
contractor's performance.
    (l) Tour of duty shall mean the contractor's period of service under 
this contract and shall include orientation in the United States (less 
language training), authorized leave, and international travel.
    (m) Traveler shall mean--
    (1) The contractor in authorized travel status or
    (2) Dependents of the contractor who are in authorized travel 
status.
    (n) Dependents means:
    (1)Spouse.
    (2) Children (including step and adopted children) who are unmarried 
and under 21 years of age or, regardless of age, are incapable of self-
support.
    (3) Parents (including step and legally adoptive parents) of the 
employee or of the spouse, when such parents are at least 51 percent 
dependent on the contractor for support.
    (4) Sisters and brothers (including step or adoptive sisters or 
brothers) of the contractor, or of the spouse, when such sisters and 
brothers are at least 51 percent dependent on the contractor for 
support, unmarried and under 21 years of age, or regardless of age, are 
incapable of self-support.
    (o) U.S. Resident Alien, as used in this contract, shall mean an 
alien immigrant, legally resident in the United States, the Commonwealth 
of Puerto Rico, or the possessions of the United States, and having a 
valid ``Alien Registration and Receipt Card'' (Immigration and 
Naturalization Service forms I-151 or I-551).
    (p) U.S. Resident Hire Personal Services Contractor (PSC) means a 
U.S. citizen who, at the time of hiring as a PSC, resides in the 
Cooperating Country:
    (1) As a spouse or dependent of a U.S. citizen employed by a U.S. 
Government Agency or under any U.S. Government-financed contract or 
agreement, or
    (2) For reasons other than for employment with a U.S. Government 
Agency or under any U.S. Government-financed contract or agreement. A 
U.S. citizen for purposes of this definition also includes a person who 
at the time of contracting, is a lawfully admitted permanent resident of 
the United States.

  2. Compliance With Laws and Regulations Applicable Abroad (July 1993)

    (a) Conformity to Laws and Regulations of the Cooperating Country. 
Contractor agrees that, while in the cooperating country, he/she as well 
as authorized dependents will abide by all applicable laws and 
regulations of the cooperating country and political subdivisions 
thereof.
    (b) Purchase or Sale of Personal Property or Automobiles. To the 
extent permitted by the cooperating country, the purchase, sale, import, 
or export of personal property or automobiles in the cooperating country 
by the contractor shall be subject to the same limitations and 
prohibitions which apply to Mission U.S.-citizen direct-hire employees.
    (c) Code of Conduct. The contractor shall, during his/her tour of 
duty under this contract, be considered an ``employee'' (or if his/her 
tour of duty is for less than 130 days, a ``special Government 
employee'') for the purposes of, and shall be subject to, the provisions 
of 18 U.S.C. 202(a) and the USAID General Notice entitled ``Employee 
Review of the New Standards of Conduct'' pursuant to 5 CFR part 2635. 
The contractor acknowledges receipt of a copy of these documents by his/
her acceptance of this contract.

[[Page 112]]

         3. Physical Fitness and Health Room Privileges (APR 7)

    (a) Physical Fitness. (1) For all assignments outside of the United 
States the contractor and any authorized dependents shall be required to 
be examined by a licensed doctor of medicine, and the contractor shall 
obtain from the doctor a statement of medical opinion that, in the 
doctor's opinion, the contractor is physically able to engage in the 
type of activity for which he/she is to be employed under the contract, 
and the contractor and any dependents are physically able to reside in 
the Cooperating Country. A copy of the statement(s) shall be provided to 
the Contracting Officer prior to the contractor's departure for the 
Cooperating Country, or for a U.S. resident hire, before he/she starts 
work under the contract.
    (2) For assignments of 60 days or more in the Cooperating Country, 
the Contracting Officer shall provide the contractor and all authorized 
dependents copies of the ``USAID Contractor Employee Physical 
Examination Form''. This form is for collection of information; it has 
been reviewed and approved by OMB, and assigned Control No. 0412-0536. 
Information required by the Paperwork Reduction Act (burden estimate, 
points of contract, and OMB approval expiration date) is printed on the 
form. The contractor and all authorized dependents shall obtain a 
physical examination from a licensed physician, who will complete the 
form for each individual. The contractor will deliver the physical 
examination form(s) to the Embassy health unit in the Cooperating 
Country. A copy of the doctor's statement of medical opinion at the end 
of the form which identifies the contractor or dependent by name may be 
used to meet the requirement in (a)(1) above.
    (3) For end-of-tour the contractor and his/her authorized dependents 
are authorized physical examinations within 60 days after completion of 
the contractor's tour-of-duty.
    (b) Reimbursement. (1) As a contribution to the cost of medical 
examinations required by paragraph (a)(1) of this clause, USAID shall 
reimburse the contractor not to exceed $100 for each physical 
examination, plus reimbursement of charges for immunizations.
    (2) As a contribution to the cost of medical examinations required 
by paragraph (a)(2) of this clause the contractor shall be reimbursed in 
an amount not to exceed half of the cost of the examination up to a 
maximum USAID share of $300 per examination plus reimbursement of 
charges for immunizations for himself/herself and each authorized 
dependent 12 years of age or over. The USAID contribution for authorized 
dependents under 12 years of age shall not exceed half of the cost of 
the examination up to a maximum share of $120 per individual plus 
reimbursement of charges for immunizations. The contractor must obtain 
the prior written approval of the Contracting Officer to receive any 
USAID obligations higher than these limits.
    (c) Health Room Privileges. Routine health room services may be 
available, subject to post policy and in accordance with the 
requirements of paragraph (a) of this clause, to U.S. citizen 
contractors and their authorized dependents (regardless of citizenship) 
at the post of duty. These services do not include hospitalization or 
predeparture examinations. The services normally include such 
medications as may be available, immunizations and preventive health 
measures, diagnostic examinations and advice, and home visits as 
medically indicated. Emergency medical treatment is provided to U.S. 
citizen contractor employees and dependents, whether or not they may 
have been granted access to routine health room services, on the same 
basis as it would be to any U.S. citizen in an emergency medical 
situation in the country.

 4. Workweek and Compensation (Pay Comparability Adjustments) (JUL 2007)

    (a) Workweek. The contractor's workweek shall not be less than 40 
hours, unless otherwise provided in the Contract Schedule, and shall 
coincide with the workweek for those employee of the Mission or the 
Cooperating Country agency most closely associated with the work of this 
contract. If the contract is for less than full time (40 hours weekly), 
the annual and sick leave earned shall be prorated (see the General 
Provision of this contract entitled Leave and Holidays).
    (b) Compensation (Pay Comparability) Adjustments. The PSC's 
compensation shall be adjusted to reflect the pay comparability 
adjustments, which are granted from time to time to U.S. direct-hire 
employees by Executive Order for the statutory pay systems (usually in 
January). Any adjustments authorized are subject to the availability of 
funds and shall not exceed that percentage stated in the Executive Order 
granting the adjustment. Further, the adjusted compensation may not 
exceed the annual ``USAID Contractor Salary Threshold (USAID CST)'', 
which is equivalent to the maximum rate for agencies without a certified 
SES performance appraisal system (or the equivalent hourly rate).

                    5. Leave and Holidays (APR 1997)

    (a) Vacation Leave. (1) The contractor shall earn vacation leave at 
the rate of 13 workdays per annum or 4 hours every 2 weeks. However, no 
vacation shall be earned if the tour of duty is less than 90 days.
    (2) Notwithstanding paragraph (a)(1) above, if the contractor has 
had previous PSC service (i.e., has served under other personal services 
contracts (PSCs) covered by Sec.

[[Page 113]]

636(a)(3) of the FAA), he/she shall earn vacation leave at the rate of 
either 6 hours every two weeks (10 hours for the final pay period of a 
calendar year) cumulative PSC service exceeding 3 years, or 8 hours 
every two weeks for cumulative PSC service exceeding 15 years. Former 
Civil Service, Foreign Service, or a Military Service experience is not 
creditable towards PSC service for annual leave purposes.
    (3) It is understood that vacation leave is provided under this 
contract primarily for the purposes of affording necessary rest and 
recreation during the tour of duty in the Cooperating Country. The 
Contractor in consultation with the USAID Mission shall develop a 
vacation leave schedule early in his/her tour of duty taking into 
consideration project requirements, employee preference and other 
factors. All vacation leave earned by the contractor must be used during 
his/her tour of duty. All vacation leave earned by the contractor but 
not taken by the end of his/her tour of duty will be forfeited unless 
the requirements of the activity precluded the employee from taking such 
leave and the Contracting Officer, with the endorsement of the Mission 
Director, approves one of the following as an alternative:
    (i) Taking leave during the concluding weeks of the employee's tour, 
or
    (ii) Lump-sum payment for leave not taken provided such leave does 
not exceed the number of days which can be earned by the employee during 
a twelve month period.
    (4) With the approval of the Mission Director, and if the 
circumstances warrant, a contractor may be granted advance vacation 
leave in excess in that earned, but in no case shall a contractor be 
granted advance vacation leave in excess of that which he/she will earn 
over the life of the contract. The contractor agrees to reimburse USAID 
for leave used in excess of the amount earned during the contractor's 
assignment under the contract.
    (b) Sick Leave. Sick leave is earned at a rate not to exceed 13 
work-days per annum or 4 hours every 2 weeks. Unused sick leave may be 
carried over under an extension of this contract for the same or similar 
services at the same Mission, but the contractor will not be compensated 
for unused sick leave at the completion of this contract. No leave my be 
carried over from one post to another.
    (c) Home Leave. (1) Home leave is leave earned for service abroad 
for use only in the United States, in the Commonwealth of Puerto Rico, 
or in the possessions of the United States.
    (2) A contractor who is a U.S. citizen or U.S. resident alien and 
has served as least 2 years overseas, as defined in paragraph (c)(4) 
below, under personal services contract in this Mission, and has not 
taken more than 30 workdays leave (vacation, sick, or leave without pay) 
in the United States, may be granted home leave of not more than 15 work 
days for each such year of service overseas; provided, that the 
contractor agrees to return overseas upon completion of home leave under 
an additional 2 year appointment, or for such shorter period of not less 
than 1 year of overseas service under the contract as the Mission 
Director may approve in advance. Home leave must be taken in the United 
States, the Commonwealth of Puerto Rico, or the possessions of the 
United States, and any days spent elsewhere will be charged to vacation 
leave or leave without pay.
    (3) Notwithstanding the requirement in paragraph (c)(2) above that 
the contractor must have served 2 years overseas under personal services 
contract with this Mission to be eligible for home leave, the contractor 
may be granted advance home leave subject to all of the following 
conditions:
    (i) Granting of leave home leave would in each case serve to advance 
the attainment of the objectives of this contract;
    (ii) The contractor has served a minimum of 18 months in the 
Cooperating Country on his/her current tour of duty under this contract; 
and
    (iii) The contractor agrees to return to the Cooperating Country to 
serve out the remainder of his/her current tour of duty and an 
additional 2 year appointment under this or subsequent contract, or such 
other additional appointment of not less than 1 year of overseas service 
as the Mission Director may approve.
    (4) The period of service overseas required under paragraph (c)(2), 
or paragraph (c)(3) above, shall include the actual days in orientation 
in the United States (less language training) and the actual days 
overseas beginning on the date of departure from the U.S. port of 
embarkation on international travel and continuing, inclusive of 
authorized delays enroute, to the date of arrival at the U.S. port of 
debarkation from international travel. Allowable vacation and sick leave 
taken while overseas, but not leave without pay, shall be included in 
the required period of service overseas. An amount equal to the number 
of days of vacation and sick leave taken in the United States, the 
Commonwealth of Puerto Rico, or the possessions of the United States 
will be added to the required period of service overseas.
    (5) Salary during the travel to and from the United States for home 
leave will be limited to the time required for travel by the most 
expeditious air route. The contractor will be responsible for 
reimbursing USAID for payments made during home leave, if, in spite of 
the undertaking of the new appointment, the contractor, except for 
reasons beyond his/her control as determined by the Contracting Officer, 
does not return overseas and complete the additional required service. 
Unused home leave is not reimbursable under this contract.

[[Page 114]]

    (6) To the extent deemed necessary by the Contracting Officer, a 
contractor in the United States on home leave may be authorized to spend 
not more than 5 days in work status for consultation at USAID/Washington 
before returning to post duty. Consultation at locations other than 
USAID/Washington as well as any time in excess of 5 days spent for 
consultation, must be approved by the Mission Director or the 
Contracting Officer.
    (d) Holidays. The contractor, while serving abroad, shall be 
entitled to all holidays granted by the Mission to U.S.-citizen direct-
hire employees.
    (e) Military Leave. Military leave of not more than 15 calendar days 
in any calendar year may be granted to a contractor who is a reservist 
of the Armed Forces, provided that military leave has been approved in 
advance by the Contracting Officer or the Mission Director. A copy of 
any such approval shall be part of the contract file.
    (f) Leave Without Pay. Leave without pay may be granted only with 
the written approval of the Contracting Officer or Mission Director.
    (g) Compensatory Time. Compensatory leave may be granted only with 
the written approval of the Contracting Officer or Mission Director in 
rare instances when it has been determined absolutely essential and used 
under those guidelines which apply to direct-hire employees.
    (h) Leave Records. The contractor shall maintain current leave 
records for himself/herself and make them available, as requested by the 
Mission Director or the Contracting Officer.

               6. Differential and Allowances (June 1990)

    (a) The following differential and allowances will be granted to the 
contractor and his/her authorized dependents to the same extent and on 
the same basis as they are granted to U.S. citizen direct-hire employees 
at the Mission by the Standardized Regulations (Government Civilians, 
Foreign Areas), as from time to time amended, except as noted to the 
contrary below:

            Applicable Reference to Standardized Regulations
------------------------------------------------------------------------
 
------------------------------------------------------------------------
(1) Post Differential........................  Chapter 500 and Tables in
                                                Chapter 900.
(2) Living Quarters Allowance................  Section 130.
(3) Temporary Lodging Allowance..............  Section 120.
(4) Post Allowance...........................  Section 220.
(5) Supplemental Post Allowance..............  Section 230.
(6) Payments During Evacuation...............  Section 600.
(7) Education Allowance......................  Section 270.
(8) Separate Maintenance Allowance...........  Section 260.
(9) Danger Pay Allowance.....................  Section 650.
(10) Education Travel........................  Section 280.
------------------------------------------------------------------------

    (1) Post differential. Post differential is an additional 
compensation for service at places in foreign areas where conditions of 
environment differ substantially from conditions of environment in the 
continental United States and warrant additional compensation as a 
recruitment and retention incentive. In areas where post differential is 
paid to USAID direct-hire employees, post differential not to exceed the 
percentage of salary as is provided such USAID employees in accordance 
with the Standardized Regulations (Government Civilians, Foreign Areas) 
Chapter 500 (except the limitation contained in Section 552, ``Ceiling 
on Payment'') Tables--Chapter 900, as from time to time amended, will be 
reimbursable hereunder for employees in respect to amounts earned during 
the time such employees actually spend overseas on work under this 
contract. When such post differential is provided to the contractor, it 
shall be payable beginning on the date of arrival at the post of 
assignment and continue, including periods away from post on official 
business, until the close of business on the day of departure from post 
of assignment enroute to the United States. Sick or vacation leave taken 
at or away from the post of assignment will not interrupt the continuity 
of the assignment or require a discontinuance of such post differential 
payments, provided such leave is not taken within the United States or 
the territories of the United States. Post differential will not be 
payable while the employee is away from his/her post of assignment for 
purposes of home leave. Short-term employees shall be entitled to pose 
differential beginning with the forty-third (43rd) day at post.
    (2) Living quarters allowance. Living quarters allowance is an 
allowance granted to reimburse an employee for substantially all of his/
her cost for either temporary or residence quarters whenever Government-
owned or Government-rented quarters are not provided to him/her at his/
her post without

[[Page 115]]

charge. Such costs are those incurred for temporary lodging (temporary 
lodging allowance) or one unit of residence quarters (living quarters 
allowance) and include rent, plus any costs not included therein for 
heat, light, fuel, gas, electricity and water. The temporary lodging 
allowance and the living quarters allowance are never both payable to an 
employee for the same period of time. The contractor will receive living 
quarters allowance for payment of rent and utilities if such facilities 
are not supplied. Such allowance shall not exceed the amount paid USAID 
employees of equivalent rank in the Cooperating Country, in accordance 
with either the Standardized Regulations (Government Civilians, Foreign 
Areas), Chapter 130, as from time to time amended, or other rates 
approved by the Mission Director. Subject to the written approval of the 
Mission Director, short-term employees may be paid per diem (in lieu of 
living quarters allowance) at rates prescribed by the Federal Travel 
Regulations, as from time to time amended, during the time such short-
term employees spend at posts of duty in the Cooperating Country under 
this contract. In authorizing such per diem rates, the Mission Director 
shall consider the particular circumstances involved with respect to 
each such short-term employee including the extent to which meals and/or 
lodging may be made available without charge or at nominal cost by an 
agency of the United States Government or of the Cooperating Government, 
and similar factors.
    (3) Temporary lodging allowance. Temporary lodging allowance is a 
quarters allowance granted to an employee for the reasonable cost of 
temporary quarters incurred by the employee and his/her family for a 
period not in excess of (i) three months after first arrival at a new 
post in a foreign area or a period ending with the occupation of 
residence (permanent) quarters, if earlier, and (ii) one month 
immediately preceding final departure from the post subsequent to the 
necessary vacating of residence quarters. The contractor will receive 
temporary lodging allowance for himself/herself and authorized 
dependents, in lieu of living quarters allowance, not to exceed the 
amount set forth in the Standardized Regulations (Government Civilians, 
Foreign Areas), Chapter 120, as from time to time amended.
    (4) Post allowance. Post allowance is a cost-of-living allowance 
granted to an employee officially stationed at a post where the cost of 
living, exclusive of quarters cost, is substantially higher than in 
Washington, DC. The contractor will receive post allowance payments not 
to exceed those paid USAID employees in the Cooperating Country, in 
accordance with the Standardized Regulations (Government Civilians, 
Foreign Areas), Chapter 220, as from time to time amended.
    (5) Supplemental post allowance. Supplemental post allowance is a 
form of post allowance granted to an employee at his/her post when it is 
determined that assistance is necessary to defray extraordinary 
subsistence costs. The contractor will receive supplemental post 
allowance payments not to exceed the amount set forth in the 
Standardized Regulations (Government Civilians, Foreign Areas), Chapter 
230, as from time to time amended.
    (6) Payments during evacuation. The Standardized Regulations 
(Government Civilians, Foreign Areas) provide the authority for 
efficient, orderly, and equitable procedure for the payment of 
compensation, post differential and allowances in the event of an 
emergency evacuation of employees or their dependents, or both, from 
duty stations for military or other reasons or because of imminent 
danger to their lives. If evacuation has been authorized by the Mission 
Director, the contractor will receive payments during evacuation for 
himself/herself and authorized dependents evacuated from their post of 
assignment in accordance with the Standardized Regulations (Government 
Civilians, Foreign Areas), Chapter 600, and the Federal Travel 
Regulations, as from time to time amended.
    (7) Educational allowance. Educational allowance is an allowance to 
assist the contractor in meeting the extraordinary and necessary 
expenses, not otherwise compensated for, incurred by reason of his/her 
service in a foreign area in providing adequate elementary and secondary 
education for his/her children. The contractor will receive educational 
allowance payments for his/her dependent children in amounts not to 
exceed those set forth in Standardized Regulations (Government 
Civilians, Foreign Areas), Chapter 270, as from time to time amended.
    (8) Separate maintenance allowance. Separate maintenance allowance 
is an allowance to assist an employee who is compelled by reason of 
dangerous, notably unhealthful, or excessively adverse living conditions 
at his/her post of assignment in a foreign area, or for the convenience 
of the Government, to meet the additional expense of maintaining his/her 
dependents elsewhere than at such post. The contractor will receive 
separate maintenance allowance payments not to exceed that made to USAID 
employees in accordance with the Standardized Regulations (Government 
Civilians, Foreign Areas), Chapter 260, as from time to time amended.
    (9) Danger pay allowance. Danger pay allowance is an allowance to 
provide additional compensation above basic compensation to employees in 
foreign areas where civil insurrection, civil war, terrorism or wartime 
conditions threaten physical harm or imminent danger to the health or 
well-being of the employee. The danger pay allowance is in lieu

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of that part of the post differential which is attributable to political 
violence. Consequently, the post differential may be reduced while 
danger pay is in effect to avoid dual crediting for political violence. 
The contractor shall be allowed danger pay allowance not to exceed that 
paid USAID employees in the Cooperating Country, in accordance with the 
Standardized Regulations (Government Civilians, Foreign Areas), Chapter 
650, as from time to time amended.
    (10) Educational travel. Educational travel is travel to and from a 
school in the United States for secondary education (in lieu of an 
educational allowance) and for college education. The contractor will 
receive educational travel payments for his/her dependent children 
provided such payment does not exceed that which would be payable in 
accordance with the Standardized Regulations (Government Civilians, 
Foreign Areas), Chapter 280, as from time to time amended. Educational 
travel shall not be authorized for contractors whose assignment is less 
than two years.
    (b) The allowances provided in paragraphs (a) (1) through (10) of 
this provision shall be paid to the contractor in dollars or in the 
currency of the Cooperating Country in accordance with practice 
prevailing at the Mission, or the Mission Director may direct that the 
contractor be paid a per diem in lieu thereof as prescribed by the 
Standardized Regulations (Government Civilians, Foreign Areas), as from 
time to time amended.

7. Social Security, Federal Income Tax, and Foreign Earned Income (June 
                                  1990)

    (a) Since the contractor is an employee, F.I.C.A. contributions and 
U.S. Federal Income Tax withholding shall be deducted in accordance with 
regulations and rulings of the Social Security Administration and the 
U.S. Internal Revenue Service, respectively.
    (b) As an employee, the contractor is not eligible for the ``foreign 
earned income'' exclusion under the IRS Regulations (see 26 CFR 1.911-
3(c)(3)).

                  8. Advance of Dollar Funds (APR 1997)

    If requested by the contractor and authorized in writing by the 
Contracting Officer, USAID will arrange for an advance of funds to 
defray the initial cost of travel, travel allowances, authorized 
precontract expenses, and shipment of personal property. The advance 
shall be granted on the same basis as to a USAID U.S.-citizen direct-
hire employee in accordance with USAID Handbook 22, Chapter 4 or 
superseding ADS Chapter.

                         9. Insurance (APR 1997)

    (a) Worker's compensation benefits. The contractor shall be provided 
worker's compensation benefits in accordance with the Federal Employees' 
Compensation Act.
    (b) Health and life insurance. (1) The contractor shall be provided 
a maximum contribution of up to 50% against the actual costs of the 
contractor's annual health insurance costs, provided that such costs may 
not exceed the maximum U.S. Government contribution for direct-hire 
personnel as announced annually by the Office of Personnel Management.
    (2) The contractor shall be provided a contribution of up to 50% 
against the actual costs of annual life insurance not to exceed $500.00 
per year.
    (3) Retired U.S. Government employees shall not be paid additional 
contributions for health or life insurance under their contracts. The 
Government will normally have already paid its contribution for the 
retiree unless the employee can prove to the satisfaction of the 
Contracting Officer that his/her health and life insurance does not 
provide or specifically excludes coverage overseas. In such case, the 
contractor would be eligible for contributions under paragraphs (b) (1) 
or (2) as appropriate.
    (4) Proof of health and life insurance coverage shall be submitted 
to the Contracting Officer before any contribution is paid. On 
assignments of less than one year, costs for health and life insurance 
shall be prorated and paid accordingly.
    (5) A contractor who is a spouse of a current or retired Civil 
Service, Foreign Service, or Military Service member and who is covered 
by their spouse's Government health or life insurance policy is 
ineligible for the contribution under paragraphs (b)(1) or (b)(2) of 
this provision.
    (c) Insurance on private automobiles. If the contractor or his/her 
dependents transport, or cause to be transported, privately owned 
automobile(s) to the Cooperating Country, or any of them purchase an 
automobile within the Cooperating Country, the contractor agrees to 
ensure that all such automobile(s) during such ownership within the 
Cooperating Country will be covered by a current, i.e., not in arrears, 
insurance policy issued by a reliable company providing the following 
minimum coverage, or such other minimum coverage as may be set by the 
Mission Director, payable in U.S. dollars or its equivalent in the 
currency of the Cooperating Country: injury to persons, $10,000/$20,000; 
property damage, $5,000. The contractor further agrees to deliver, or 
cause to be delivered to the Mission Director, the insurance policies 
required by this clause or satisfactory proof of the existence thereof, 
before such automobile(s) operated within the Cooperating Country. The 
premium costs for such insurance shall not be a reimbursable cost under 
this contract.

[[Page 117]]

           10. Travel and Transportation Expenses (July 1993)

    (a) General. (1) USAID/Washington Office of Administrative Services, 
or such other office as may be designated by that office, may furnish 
Transportation Requests (TR's) to the contractor for transportation 
authorized by this contract originating in the United States, and the 
executive or administrative officer at the Mission may furnish TR's for 
such authorized transportation which is payable in local currency or is 
to originate overseas. When transportation is not provided by the 
Government-issued TR, the contractor shall procure his/her own 
transportation, the costs of which will be reimbursed in accordance with 
the terms of this contract.
    (2) The contractor will be reimbursed for reasonable, allocable and 
allowable travel and transportation expenses incurred under and for the 
performance of this contract. Determination of reasonableness, 
allocability and allowability will be made by the Contracting Officer in 
accordance with USAID's established policies and procedures for USAID 
direct-hire employees, and the particular needs of the activity being 
implemented by this contract. The following paragraphs provide specific 
guidance and limitations on particular items of cost.
    (b) U.S. travel and transportation. The contractor shall be 
reimbursed for actual transportation costs and travel allowances in the 
United States as authorized in the Contract Schedule or approved in 
advance by the Contracting Officer or the Mission Director. 
Transportation costs and travel allowances shall not be reimbursed in 
any amount greater than the cost of, and time required for, economy-
class commercially scheduled air travel by the most expeditious route 
except as otherwise provided in paragraph (g) of this provision unless 
economy air travel is not available and the contractor certifies to this 
in his/her voucher or other documents submitted for reimbursement.
    (c) International travel. For travel to and from post of assignment, 
the contractor shall be reimbursed for travel costs and travel 
allowances from place of residence in the United States (or other 
location provided that the cost of such travel does not exceed the cost 
of the travel from the contractor's residence in the United States) to 
the post of duty in the Cooperating Country and return to place of 
residence in the United States (or other location provided that the cost 
of such travel does not exceed the cost of travel from the post of duty 
in the Cooperating Country to the contractor's residence) upon 
completion of services by the individual. Reimbursement for travel will 
be in accordance with USAID's established policies and procedures for 
its direct-hire employees and the provisions of this contract, and will 
be limited to the cost of travel by the most direct and expeditious 
route. If the contract is for longer than one year and the contractor 
does not complete one full year at post of duty (except for reasons 
beyond his/her control), the costs of going to and from the post of duty 
for the contractor and his/her dependents are not reimbursable 
hereunder. If the contractor serves more than one year but less than the 
required service in the Cooperating Country (except for reasons beyond 
his/her control) the costs of going to the post of duty are reimbursable 
hereunder but the costs of going from post of duty to the contractor's 
permanent, legal place of residence at the time he or she was employed 
for work under this contract, or other location as approved by the 
Contracting Officer, are not reimbursable under this contract for the 
contractor and his/her dependents. When travel is by economy class 
accommodations, the contractor will be reimbursed for the cost of 
transporting up to 10 kilograms/22 pounds of accompanied personal 
baggage per traveler in addition to that regularly allowed with the 
economy ticket provided that the total number of pounds of baggage does 
not exceed that regularly allowed for first class travelers. Travel 
allowances for travelers shall not be in excess of the rates authorized 
in the Standardized Regulations (Government Civilians, Foreign Areas)-
hereinafter referred to as the Standardized Regulations--as from time to 
time amended, for not more than the travel time required by scheduled 
commercial air carrier using the most expeditious route. One stopover 
enroute for a period of not to exceed 24 hours is allowable when the 
traveler uses economy class accommodations for a trip of 14 hours or 
more of scheduled duration. Such stopover shall not be authorized when 
travel is by indirect route or is delayed for the convenience of the 
traveler. Per diem during such stopover shall be paid in accordance with 
the Federal Travel Regulations as from time to time amended.
    (d) Local travel. Reimbursement for local travel in connection with 
duties directly referable to the contract shall not be in excess of the 
rates established by the Mission Director for the travel costs of 
travelers in the Cooperating Country. In the absence of such established 
rates the contractor shall be reimbursed for actual travel costs in the 
Cooperating Country or the Mission, including travel allowances at rates 
not in excess of those prescribed by the Standardized Regulations.
    (e) Indirect travel for personal convenience. When travel is 
performed by an indirect route for the personal convenience of the 
traveler, the allowable costs of such travel will be computed on the 
basis of the cost of allowable air fare via the direct usually traveled 
route. If such costs include fares for air or ocean travel by foreign 
flag carriers, approval for indirect travel by such foreign flag

[[Page 118]]

carriers must be obtained from the Contracting Officer or the Mission 
Director before such travel is undertaken, otherwise only that portion 
of travel accomplished by the United States-flag carriers will be 
reimbursable within the above limitation of allowable costs.
    (f) Limitation on travel by dependents. Travel costs and allowances 
will be allowed for authorized dependents of the contractor and such 
costs shall be reimbursed for travel from place of abode to assigned 
station in the Cooperating Country and returned, only if the dependent 
remains in the Cooperating Country for at least 9 months or one-half of 
the required tour of duty of the contractor, whichever is greater, 
except as otherwise authorized hereunder for education, medical or 
emergency visitation travel. If the dependent is eligible for 
educational travel pursuant to the ``Differential and Allowances'' 
clause of this contract, time spent away from post resulting from 
educational travel will be counted as time at post.
    (g) Delays enroute. The contractor may be granted reasonable delays 
enroute while in travel status when such delays are caused by events 
beyond the control of the contractor and are not due to circuitous 
routine. It is understood that if delay is caused by physical 
incapacitation, he/she shall be eligible for such sick leave as provided 
under the ``Leave and Holidays'' clause of this contract.
    (h) Travel by Privately Owned Automobile (POV). If travel by POV is 
authorized in the contract schedule or approved by the Contracting 
Officer, the contractor shall be reimbursed for the cost of travel 
performed in his/her POV at a rate not to exceed that authorized in the 
Federal Travel Regulations plus authorized per diem for the employee and 
for each of the authorized dependents traveling in the POV, if the POV 
is being driven to or from the Cooperating Country as authorized under 
the contract, provided that the total cost of the mileage and the per 
diem paid to all authorized travelers shall not exceed the total 
constructive cost of fare and normal per diem by all authorized 
travelers by surface common carrier or authorized air fare, whichever is 
less.
    (i) Emergency and Irregular Travel and Transportation. Emergency 
transportation costs and travel allowances while enroute, as provided in 
this section, will be reimbursed not to exceed amounts authorized by the 
Foreign Service Travel Regulations for USAID-direct hire employees in 
like circumstances under the following conditions:
    (1) The costs of going from post of duty in the Cooperating Country 
to the employee's permanent, legal place of residence at the time he or 
she was employed for work under this contract or other location for 
contractor employees and dependents and returning to the post of duty, 
subject to the prior written approval of the Mission Director that such 
travel is necessary for one of the following reasons.
    (i) Need for medical care beyond that available within the area to 
which the employee is assigned, or serious effect on physical or mental 
health if residence is continued at assigned post of duty. The Mission 
Director may authorize a medical attendant to accompany the employee at 
contract expense if, based on medical opinion, such an attendant is 
necessary.
    (ii) Death, or serious illness or injury of a member of the 
immediate family of the employee or the immediate family of the 
employee's spouse.
    (2) When, for any reason, the Mission Director determines it is 
necessary to evacuate the contractor or contractor's dependents, the 
contractor will be reimbursed for travel and transportation expenses and 
travel allowance while enroute, for the cost of the individuals going 
from post of duty in the Cooperating Country to the employee's 
permanent, legal place of residence at the time he or she was employed 
for work under this contract or other approved location. The return of 
such employees and dependents may also be authorized by the Mission 
Director when, in his/her discretion, he/she determines it is prudent to 
do so.
    (3) The Mission Director may also authorize emergency or irregular 
travel and transportation in other situations, when in his/her opinion, 
the circumstances warrant such action. The authorization shall include 
the kind of leave to be used and appropriate restrictions as to time 
away from post, transportation of personal and household effects, etc.
    (j) Home Leave Travel. To the extend that home leave has been 
authorized as provided in the ``Leave and Holidays'' clause of this 
contract, the cost of travel for home leave is reimbursable for travel 
costs and travel allowances of travelers from the post of duty in the 
Cooperating Country to place of residence in the United States (or other 
location provided that the cost of such travel does not exceed the cost 
of travel to the contractor's residence in the United States) and return 
to the post of duty in the Cooperating Country. Reimbursement for travel 
will be in accordance with the Uniform State/USAID/USIA Foreign Service 
Travel Regulations, as from time to time amended, and will be limited to 
the cost of travel by the most direct and expeditious route. Travel 
allowances for travelers shall be in accordance with the rates 
authorized in the Standardized Regulations as from time to time amended, 
for not more than the travel time required by scheduled commercial air 
carrier using the most expeditious route using economy class. One 
stopover enroute for a period of not to exceed 24 hours is allowable 
when the traveler uses economy class accommodations for a

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trip of 14 hours or more of scheduled duration. Such stopover shall not 
be authorized when travel is by indirect route or is delayed for the 
convenience of the traveler or the traveler uses other than economy 
class. Per diem during such stopover shall be paid in accordance with 
the Standardized Regulations.
    (k) Rest and Recuperations Travel. If approved in writing by the 
Mission Director, the contractor and his/her dependents shall be allowed 
rest and recuperation travel on the same basis as authorized USAID 
direct-hire Mission employees and their dependents.
    (l) Transportation of Motor Vehicles, Personal Effects and Household 
Goods. (1) Transportation costs will be paid on the same basis as for 
USAID direct-hire employees serving the same length tour of duty, as 
authorized in the schedule. Transportation, including packing and 
crating costs, will be paid for shipping from the point of origin in the 
United States (or other location as approved by the Contracting Officer) 
to post of duty in the Cooperating Country and return to point of origin 
in the United States (or other location as approved by the Contracting 
Officer) of one privately-owned vehicle for the contractor, personal 
effects of the contractor and authorized dependents, and household goods 
of the contractor not to exceed the limitations in effect for such 
shipments for USAID direct-hire employees in accordance with the Foreign 
Service Travel Regulations in effect at the time shipment is made. These 
limitations may be obtained from the Contracting Officer.
    (2) The cost of transporting motor vehicles and household goods 
shall not exceed the cost of packing, crating, and transportation by 
surface common carrier. In the event that the carrier does not require 
boxing or crating of motor vehicles for shipment to the Cooperating 
Country, the cost of boxing or crating is not reimbursable. The 
transportation of a privately owned motor vehicle for a contractor may 
be authorized as a replacement of the last such motor vehicle shipped 
under this contract for such contractor when the Mission Director 
determines, in advance, and so notifies the contractor in writing, that 
the replacement is necessary for reasons not due to the negligence or 
malfeasance of the contractor. The determination shall be made under the 
same rules and regulations that apply to authorized Mission U.S. citizen 
direct-hire employees.
    (m) Unaccompanied Baggage. Unaccompanied baggage is considered to be 
those personal belongings needed by the traveler immediately upon 
arrival of the contractor and dependents, and consideration should be 
given to advance shipments of unaccompanied baggage. The contractor will 
be reimbursed for costs of shipment of unaccompanied baggage (in 
addition to the weight allowance for household effects) not to exceed 
the limitations in effect for USAID direct-hire employees in accordance 
with the Foreign Service Travel Regulations as in effect when shipment 
is made. These limitations are available from the Contracting Officer. 
This unaccompanied baggage may be shipped as air freight by the most 
direct route between authorized points of origin and destination 
regardless of the modes of travel used. This provision is applicable to 
home leave travel when authorized by the terms of this contract.
    (n) International Ocean Transportation--(1)(i) Transportation of 
things. Where U.S. flag vessels are not available, or their use would 
result in a significant delay, the contractor may obtain a release from 
the requirement to use U.S. flag vessels from the Transportation 
Division, Office of Acquisition and Assistance, U.S. Agency for 
International Development, Washington, D.C. 20523-1419, or the Mission 
Director, as appropriate, giving the basis for the request.
    (ii) Transportation of persons. Where U.S. flag vessels are not 
available, or their use would result in a significant delay, the 
contractor may obtain a release from the requirement to use U.S. flag 
vessels from the Contracting Officer or the Mission Director, as 
appropriate.
    (2) Transportation of foreign-made vehicles. Reimbursement of the 
costs of transporting a foreign-made motor vehicle will be made in 
accordance with the provisions of the Foreign Service Travel 
Regulations.
    (3) Reduced rates on U.S.-flag carriers are in effect for shipments 
of household goods and personal effects of USAID contractors between 
certain locations. These reduced rates are available provided the 
shipper furnishes to the carrier at the time of the issuance of the Bill 
of Lading documentary evidence that the shipment is for the account of 
USAID. The Contracting Officer will, on request, furnish to the 
contractor current information concerning the availability of a reduced 
rate with respect to any proposed shipment. The contractor will not be 
reimbursed for shipments of household goods or personal effects in 
amounts in excess of the reduced rates which are available in accordance 
with the foregoing.
    (o) Storage of household effects. The cost of storage charges 
(including packing, crating, and drayage costs) in the U.S. of household 
goods of the contractor will be permitted in lieu of transportation of 
all or any part of such goods to the Cooperating Country under paragraph 
(l) above provided that the total amount of effects shipped to the 
Cooperating Country or stored in the U.S. shall not exceed the amount 
authorized for USAID direct-hire employees under the Uniform Foreign 
Service Travel Regulations. These amounts are available from the 
Contracting Officer.

[[Page 120]]

                         11. Payment (AUG 1996)

    (a) Once each month, or at more frequent intervals, if approved by 
the paying office indicated on the Cover Page, the contractor may submit 
to such office form SF 1034 ``Public Voucher for Purchases and Services 
Other Than Personal'' (original) and SF 1034-A (three copies), or 
whatever other form is locally required or accepted. Each voucher shall 
be identified by the USAID contract number and properly executed in the 
amount of dollars claimed during the period covered. The voucher forms 
shall be supported by:
    (1) The contractor's detailed invoice, in original and two copies, 
indicating for each amount claimed the paragraph of the contract under 
which payment is to be made, supported when applicable as follows:
    (i) For compensation--a statement showing period covered, days 
worked, and days when contractor was in authorized travel, leave, or 
stopover status for which compensation is claimed. All claims for 
compensation will be accompanied by, or will incorporate, a 
certification signed by the Project Officer covering days or hours 
worked, or authorized travel or leave time for which compensation is 
claimed.
    (ii) For travel and transportation--a statement of itinerary with 
attached carrier's receipt and/or passenger's coupons, as appropriate.
    (iii) For reimbursable expenses--an itemized statement supported by 
original receipts.
    (2) The first voucher submitted shall account for, and liquidate the 
unexpended balance of any funds advanced to the contractor.
    (b) A final voucher shall be submitted by the contractor promptly 
following completion of the duties under this contract but in no event 
later than 120 days (or such longer period as the Contracting Officer 
may in his/her discretion approve in writing) from the date of such 
completion. The contractor's claim, which includes his/her final 
settlement of compensation, shall not be paid until after the 
performance of the duties required under the terms of this contract has 
been approved by USAID. On receipt and approval of the voucher 
designated by the contractor as the ``final voucher'' submitted on Form 
SF 1034 (original) and SF 1034-A (three copies), together with a refund 
check for the balance remaining on hand of any funds which may have been 
advanced to the contractor, the Government shall pay any amounts due and 
owing the contractor.
    (c) If approved by the paying office time and attendance may be 
submitted for PSCs in the same manner as is approved for direct-hire 
personnel.

       12. Conversion of U.S. Dollars to Local Currency (DEC 1985)

    Upon arrival in the Cooperating Country, and from time to time as 
appropriate, the contractor shall consult with the Mission Director or 
his/her authorized representative who shall provide, in writing, the 
policy the contractor shall follow in the conversion of U.S. dollars to 
local currency. This may include, but not be limited to the conversion 
of said currency through the cognizant U.S. Disbursing Officer, or 
Mission Controller, as appropriate.

              13. Post of Assignment Privileges (JUL 1993)

    Privileges such as the use of APO, PX's, commissaries and officers 
clubs are established at posts abroad under agreements between the U.S. 
and host governments. These facilities are intended for and usually 
limited to members of the official U.S. establishment including the 
Embassy, USAID Mission, U.S. Information Service and the Military. 
Normally, the agreements do not permit these facilities to be made 
available to non-official Americans. However, in those cases where 
facilities are open to non-official Americans, they may be used.

                  14. Security Requirements (June 1990)

    (a) This entire provision shall apply to the extent that this 
contract involves access to classified information (``Confidential'', 
``Secret'', or ``Top Secret'') or access to administratively controlled 
information (``Limited Official Use''). Contractors that are not U.S. 
citizens shall not have access to classified or administratively 
controlled information.
    (b) The contractor (1) shall be responsible for safeguarding all 
classified or administratively controlled information in accordance with 
appropriate instructions furnished by the USAID Office of Security (IG/
SEC), as referenced in paragraph (d) of this provision and shall not 
supply, disclose, or otherwise permit access to classified information 
or administratively controlled information to any unauthorized person; 
(2) shall not make or permit to be made any reproductions of classified 
information or administratively controlled information except with the 
prior written authorization of the Contracting Officer or Mission 
Director; (3) shall submit to the Contracting Officer, at such times as 
the Contracting Officer may direct, an accounting of all reproductions 
of classified or administratively controlled information; and (4) shall 
not incorporate in any other project any matter which will disclose 
classified and/or administratively controlled information except with 
the prior written authorization of the Contracting Officer.
    (c) The contractor shall follow the procedures for classifying, 
marking, handling, transmitting, disseminating, storing, and destroying 
official material in accordance with

[[Page 121]]

the regulations in the Foreign Affairs Manual, Chapter 5 (5 FAM 900), a 
copy of which will be furnished by the Contracting Officer or Mission 
Director.
    (d) The contractor agrees to submit immediately to the Mission 
Director or Contracting Officer a complete detailed report, 
appropriately classified, of any information which the contractor may 
have concerning existing or threatened espionage, sabotage, or 
subversive activity.
    (e) The Government agrees that, when necessary, it shall indicate by 
security classification or administratively controlled designation, the 
degree of importance to the national defense of information to be 
furnished by the contractor to the Government or by the Government to 
the contractor, and the Government shall give written notice of such 
security classification or administratively controlled designation to 
the contractor and of any subsequent changes thereof. The contractor is 
authorized to rely on any letter or other written instrument signed by 
the Contracting Officer changing a security classification or 
administratively controlled designation of information.
    (f) The contractor agrees to certify after completion of his/her 
assignment under this contract that he/she has surrendered or disposed 
of all classified and/or administratively controlled information in his/
her custody in accordance with applicable security instructions.

             15. Contractor-Mission Relationships (DEC 1985)

    (a) The contractor acknowledges that this contract is an important 
part of the U.S. Foreign Assistance Program and agrees that his/her 
duties will be carried out in such a manner as to be fully commensurate 
with the responsibilities which this entails.
    (b) While in the Cooperating Country, the contractor is expected to 
show respect for the conventions, customs, and institutions of the 
Cooperating Country and not interfere in its political affairs.
    (c) If the contractor's conduct is not in accordance with paragraph 
(b) of this provision, the contract may be terminated under General 
Provision 16 of this contract. The Contractor recognizes the right of 
the U.S. Ambassador to direct his/her immediate removal from any country 
when, in the discretion of the Ambassador, the interests of the United 
States so require.
    (d) The Mission Director is the chief representative of USAID in the 
Cooperating Country. In this capacity, he/she is responsible for the 
total USAID Program in the Cooperating Country including certain 
administrative responsibilities set forth in this contract and for 
advising USAID regarding the performance of the work under the contract 
and its effect on the U.S. Foreign Assistance Program. The contractor 
will be responsible for performing his/her duties in accordance with the 
statement of duties called for by the contract. However, he/she shall be 
under the general policy guidance of the Mission Director, and shall 
keep the Mission Director or his/her designated representative currently 
informed of the progress of the work under this contract.

                       16. Termination (NOV 1989)

    (This is an approved deviation to be used in place of the clause 
specified in FAR 52.249-12.)
    (a) The Government may terminate performance of work under this 
contract in whole or, from time to time, in part:
    (1) For cause, which may be effected immediately after establishing 
the facts warranting the termination, by giving written notice and a 
statement of reasons to the contractor in the event (i) the Contractor 
commits a breach or violation of any obligations herein contained, (ii) 
a fraud was committed in obtaining this contract, or (iii) the 
contractor is guilty (as determined by USAID) of misconduct in the 
Cooperating Country. Upon such a termination, the contractor's right to 
compensation shall cease when the period specified in such notice 
expires or the last day on which the contractor performs services 
hereunder, whichever is earlier. No costs of any kind incurred by the 
contractor after the date such notice is delivered shall be reimbursed 
hereunder except the cost of return transportation (not including travel 
allowances), if approved by the Contracting Officer. If any costs 
relating to the period subsequent to such date have been paid by USAID, 
the contractor shall promptly refund to USAID any such prepayment as 
directed by the Contracting Officer.
    (2) For the convenience of USAID, by giving not less than 15 
calendar days advance written notice to the contractor. Upon such a 
termination, contractor's right to compensation shall cease when the 
period specified in such notice expires except that the contractor shall 
be entitled to any unused vacation leave, return transportation costs 
and travel allowances and transportation of unaccompanied baggage costs 
at the rate specified in the contract and subject to the limitations 
which apply to authorized travel status.
    (3) For the convenience of USAID, when the contractor is unable to 
complete performance of his/her services under the contract by reason of 
sickness or physical or emotional incapacity based upon a certification 
of such circumstances by a duly qualified doctor of medicine approved by 
the Mission. The contract shall be deemed terminated upon delivery to 
the Contractor of a termination notice. Upon such a termination, the 
contractor shall not be entitled to compensation except to the extent of 
any unused vacation or sick leave but shall be

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entitled to return transportation, travel allowances, and unaccompanied 
baggage costs at rates specified in the contract and subject to the 
limitations which apply to authorized travel status.
    (b) The contractor, with the written consent of the Contracting 
Officer, may terminate this contract upon at least 15 days' written 
notice to the Contracting Officer.

                  17. Release of Information (DEC 1985)

    All rights in data and reports shall become the property of the U.S. 
Government. All information gathered under this contract by the 
Contractor and all reports and recommendations hereunder shall be 
treated as confidential by the Contractor and shall not, without the 
prior written approval of the Contracting Officer, be made available to 
any person, party, or government, other than USAID, except as otherwise 
expressly provided in this contract.

                         18. Notices (DEC 1985)

    Any notice, given by any of the parties hereunder, shall be 
sufficient only if in writing and delivered in person or sent by 
telegraph, telegram, registered, or regular mail as follows:
    To USAID: Administrator, U.S. Agency for International Development, 
Washington, D.C. 20523-0001, Attention: Contracting Officer.
    (name of the cognizant Contracting Officer with a copy to the 
appropriate Mission Director).
    To Contractor:
    At his/her post of duty while in the Cooperating Country and at the 
Contractor's address shown on the Cover Page of this contract or to such 
other address as either of such parties shall designate by notice given 
as herein required. Notices hereunder shall be effective in accordance 
with this clause or on the effective date of the notice, whichever is 
later.

                         19. Reports (June 1987)

    (a) The Contractor shall prepare and submit 2 copies of each 
technical report required by the schedule of this contract to the Bureau 
for Program and Policy Coordination, Center for Development Information 
and Evaluation, Development Information Division (PPC/CDIE/DI). All 
documents should be mailed to:
    PPC/CDIE/DI, Acquisitions, Room 209, SA-18, U.S. Agency for 
International Development, Washington, D.C. 20523-1802.
    The title page of all reports forwarded to PPC/CDIE/DI pursuant to 
this paragraph shall include a descriptive title, the author's name(s), 
contract number, project number and title, contractor's name, name of 
the USAID project office, and the publication or insurance date of the 
report.
    (b) When preparing reports, the contractor shall refrain from using 
elaborate art work, multicolor printing and expensive paper/binding, 
unless it is specifically authorized in the Contract Schedule. Wherever 
possible, pages should be printed on both sides using single spaced 
type.

                 20. Use of Pouch Facilities (July 1993)

    (a) Use of diplomatic pouch is controlled by the Department of 
State. The Department of State has authorized the use of pouch 
facilities for USAID contractors and their employees as a general 
policy, as detailed in paragraphs (a)(1) through (a)(6) of this 
provision. However, the final decision regarding use of pouch facilities 
rests with the Embassy or USAID Mission. In consideration of the use of 
pouch facilities as hereinafter stated, the Contractor agrees to 
indemnify and hold harmless the Department of State and USAID for loss 
or damage occurring in pouch transmission.
    (1) Contractors are authorized use of the pouch for transmission and 
receipt of up to a maximum of 0.90 kilogram/2 pounds per shipment of 
correspondence and documents needed in the administration of foreign 
assistance programs.
    (2) U.S. citizen contractors are authorized use of the pouch for 
personal mail up to a maximum of 0.45 kilogram/one pound per shipment 
(but see (a)(3) below). Non-U.S. citizen Contractors are not permitted 
use of the pouch for personal mail except to the extent that such use 
may be authorized by the Chief of Mission.
    (3) Merchandise, parcels, magazines, or newspapers are not 
considered to be personal mail for purpose of this clause, and are not 
authorized to be sent or received by pouch.
    (4) Official and personal mail under paragraphs (a) (1) and (2) of 
this provision, sent by pouch, should be addressed as follows:
    Individual's Name (C), U.S. Agency for International Development, 
Washington, D.C. 20523-0001.
    (5) Mail sent via the diplomatic pouch may not be in violation of 
U.S. Postal laws and may not contain material ineligible for pouch 
transmission.
    (6) Use of military postal facilities (APO/FPO) is authorized to 
U.S. contractors on the same basis as approved for direct-hire employees 
at the USAID Mission. Posts having access to APO/FPO facilities and 
using such for diplomatic pouch dispatch, may, however, accept official 
and personal mail for the pouch provided, of course, adequate postage is 
affixed when onward transmission (mail to other than USAID/W) through 
U.S. postal channels is required.
    (b) The contractor shall be responsible for compliance with these 
guidelines and limitations on use of pouch facilities.
    (c) Specific additional guidance on use of pouch facilities in 
accordance with this

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clause is available from the Post Communication Center at the Embassy or 
USAID Mission.

                    21. Biographical Data (June 1990)

    (a) The contractor agrees to furnish biographical information to the 
Contracting Officer on forms (SF 171 and 171As) provided for that 
purpose.
    (b) Emergency locator information. The contractor agrees to provide 
the following information to the Mission Administrative Officer on 
arrival in the host country regarding himself/herself and dependents:
    (1) Contractor's full name, home address, and telephone number 
including any after-hours emergency number(s).
    (2) The name and number of the contract, and whether the individual 
is the contractor or the contractor's dependent.
    (3) The name, address, and home and office telephone number(s) of 
each individual's next of kin.
    (4) Any special instructions pertaining to emergency situations such 
as power of attorney designees or alternate contact persons.

     22. U.S. Resident Hire Personal Services Contractor (June 1990)

    A contractor meeting the definition of a U.S. Resident Hire PSC 
contained in Section 12, General Provisions, Clause 1, Definitions, 
shall be subject to U.S. Federal Income Tax, but shall not be eligible 
for any fringe benefits (except contributions for FICA, health insurance 
and life insurance), allowances, or differentials, including but not 
limited to travel and transportation, medical, orientation, home leave, 
etc., unless such individual can demonstrate to the satisfaction of the 
Contracting Officer that he/she has received similar benefits/allowances 
from their immediately previous employer in the Cooperating Country, or 
the Mission Director determines that payment of such benefits would be 
consistent with the Mission's policy and practice and would be in the 
best interest of the U.S. Government.

            23. Orientation and Language Training (July 1993)

    (a) Except as set forth in paragraph (b)(4) below, the Contractor 
shall receive a maximum of 2 weeks USAID orientation before travel 
overseas. The dates of orientation shall be selected by the Contractor 
and approved by the Contracting Officer from the orientation schedule 
provided by USAID.
    (b) As either set forth in the Contract Schedule, or provided in 
writing by the Contracting Officer, the following may be authorized 
taking into consideration specific job requirements, contractor's prior 
overseas experience, or unusual circumstances, in connection with 
orientation of individual Contractors:
    (1) Modified orientation,
    (2) Language training,
    (3) Orientation for Contractor's dependents at contract expense.
    (4) Waiver of orientation for individual contractor.
    (c) Transportation costs and travel allowances not to exceed one 
round trip from the Contractor's residence to place of orientation and 
return will be reimbursed, pursuant to Clause 10 of the General 
Provisions, entitled ``Travel and Transportation Expenses,'' if the 
orientation is more than 80 kilometers/50 miles from the contractor's 
residence.
    Allowable salary costs during the period of orientation are also 
reimbursable.

 24. Conditions for Contracting Prior to Receipt of Security Clearance 
                               (July 1993)

    (a) U.S. Resident Hire PSC. The contractor may commence work prior 
to the completion of the security clearance. However, until such time as 
clearance is received, the contractor shall have no access to classified 
or administratively controlled materials. Further, failure to obtain 
clearance will constitute cause for contract termination in accordance 
with paragraph (a)(2) of General Provision 16 of this contract.
    (b) U.S. PSC--Non-Resident Hire. The contractor may elect to 
commence travel to post immediately to begin work prior to completion of 
the security clearance. However, until such time as security clearance 
is received, the contractor shall:
    (1) Have no access to classified or administratively controlled 
materials;
    (2) Be authorized to travel to post himself/herself only; and
    (3) Be authorized no entitlements other than those normally 
authorized for short term (less than a year) employees at post. Even if 
the contract is for one year or more, dependents may not accompany 
contractor unless at his/her expense, and transportation/storage of 
household/personal effects and motor vehicle will not be financed by 
USAID prior to the receipt of the security clearance. Upon receipt of 
clearance, the Contracting Officer will authorize reimbursement of any 
such costs borne at contractor's expense prior to clearance provided 
they are reasonable, allocable and allowable. If appropriate given the 
length of time remaining, the Contracting Officer will authorize 
dependent travel and shipment/storage of motor vehicle and effects. 
Allowances which would not be provided to short term employees will be 
authorized after clearance is received provided that the contractor is 
otherwise entitled to such benefits. Failure to obtain the security 
clearance will constitute cause for contract termination in accordance 
with paragraph (a)(2) of General Provision 16 of this contract.

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          25. Medical Evacuation (MEDEVAC) Services (JUL 2007)

    (a) The PSC must obtain MEDEVAC service coverage including coverage 
for authorized dependents while performing personal services abroad.
    USAID will reimburse the total cost of MEDEVAC insurance to the PSC. 
The PSC must provide proof of coverage to the CO in order to receive 
reimbursement.
    (b) Exceptions. (1) A PSC and authorized dependents with a health 
insurance program that includes sufficient MEDEVAC coverage as approved 
by the Contracting Officer are not required to obtain MEDEVAC service 
coverage.
    (2) The Mission Director at the post of assignment may make a 
written determination to waive the requirement for such coverage. The 
determination must be based on findings that the quality of local 
medical services or other circumstances obviate the need for such 
coverage for PSCs and their dependents located at post.

                      26. Governing Law (NOV 1996)

    This contract is established under the procurement authorities of 
the United States Government and shall be interpreted in accordance with 
the body of Federal Procurement Law in the United States. This contract 
is a complete statement of the duties, compensation, benefits, leave, 
notice, termination, and the like; therefore, the laws of the country of 
performance with respect to labor and contract matters shall not apply 
to either the carrying out of the obligations of the parties or to the 
interpretation of this agreement.

    13. FAR Clauses to be Incorporated in Full Text in Personal Services 
Contracts.
    The following FAR Clauses are always to be used along with the 
General Provisions. They are required in full text.
1. Covenant Against Contingent Fees 52.203-5
2. Electronic Funds Transfer Payment Methods 52.232-28
3. Disputes 52.233-1 (Alternate 1)
4. Preference for U.S. Flag Air Carriers 52.247-63

    14. FAR Clauses to be Incorporated by Reference in Personal Services 
Contracts
    The following FAR Clauses are to be used along with the General 
Provisions, and when appropriate, be incorporated in each personal 
services contract by reference:
1. Anti-Kickback Procedures 52.203-7
2. Limitation on Payments to Influence Certain Federal Transactions 
          52.203-12
3. Audit and Records--Negotiation 52.215-2
4. Privacy Act Notification 52.224-1
5. Privacy Act 52.224-2
6. Taxes--Foreign Cost Reimbursement Contracts 52.229-8
7. Interest 52.232-17
8. Limitation of Cost 52.232-20
9. Limitation of Funds 52.232-22
10. Assignment of Claims 52.232-23
11. Protection of Government Buildings, Equipment, and Vegetation 
          52.237-2
12. Notice of Intent to Disallow Costs 52.242-1
13. Inspection 52.246-5
14. Limitation of Liability--Services 52.246-25

[62 FR 39453, July 23, 1997, as amended at 64 FR 42040, Aug. 3, 1999; 72 
FR 19670, Apr. 19, 2007]



                 Sec. Appendix E to Chapter 7 [Reserved]



Sec. Appendix F to Chapter 7--Use of Collaborative Assistance Method for 
                          Title XII Activities

                             1. Introduction

    This appendix provides a detailed description of the collaborative 
assistance method of contracting. This is a specialized contracting 
system which may be used for contracting with educational institutions 
eligible under, and for activities authorized under, Title XII of the 
Foreign Assistance Act of 1961, as amended, under the circumstances 
described in AIDAR 715.613-71.

                               2. Purpose

    The collaborative assistance system is designed to:
    (a) Increase the joint implementation authority and responsibility 
of the contractor and the LDC;
    (b) Encourage more effective collaboration between all participating 
parties (USAID, host country, and contractor) at important stages, 
including the design stage of a technical assistance project.

                                3. Policy

    The collaborative assistance approach represents an alternative 
method for long-term technical assistance which involves professional 
collaboration with eligible Title XII institutions and LDC counterparts 
for a problem-solving type activity to develop new institutional forms 
and capabilities, to devise operating systems and policies, and to 
conduct joint research and development--including training. In such an 
activity, the difficulty in defining, in advance, precise and 
objectively verifiable contractor inputs and long-term project content 
as a basis for payment usually requires a flexible approach to project 
design, contracting, and project implementation. Such flexibility is 
also essential to the collaborative style which is responsive to LDC 
desires in problem areas of great complexity and varying uncertainty. 
Other types of technical assistance, which are usually shorter in term 
are amenable to

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more precise definition in advance, or involve closely defined and 
relatively standardized services, or are otherwise more analogous to 
commodity resource transfers, may be suitable for other contracting 
methods, e.g., certain forms of institution building, on-the-job 
training, resource surveys, etc. The collaborative assistance method is 
an approved method for providing technical assistance when used in 
accordance with the circumstances outlined above, and with the 
guidelines set forth in paragraph 4, below.

                      4. Implementation Procedures

    (a) Introduction. This paragraph 4, provides background information, 
guidelines and procedures to effect the implementation of the policy set 
forth in paragraph 3 of this appendix.
    (b) Conditions and practices. In order for this policy to work 
effectively even when the proposed activity fits the criteria described 
under Policy, there must also be:
    (1) Acceptance of the notion that the host country, in consultation 
with the contractor, is in the best position to make tactical, day-to-
day decisions on project inputs within agreed-upon limitations and 
output expectations;
    (2) Sufficient trust and respect between the Agency and the 
contractor to allow this flexible implementation authority;
    (3) A direct-hire project monitor with appropriate background to be 
knowledgeable of progress and to assist in an advisory and facilitative 
capacity, both during and between periodic reviews. In addition, the 
following important conditions must be met:
    (i) Adequate preproject communication between, and identification of 
assistance required by, the host government and USAID;
    (ii) Full joint planning and improved project design (``Joint'' as 
used herein refers to the primary parties, i.e., the collaborating 
institutions, as well as the host government and USAID. In some 
instances, it can also include other donors.);
    (iii) Careful contractor selection, i.e., matching of the 
contractor's technical and managerial capabilities to the anticipated 
requirements of the overseas activity;
    (iv) Establishment of relationships between host country, USAID and 
contractor staff to include host country leadership, flexible 
implementation authority, and effective management by the contractor;
    (v) Improved joint project evaluation, feedback, and replanning; and
    (vi) Simplified administrative procedures and greater reliance on 
in-country logistical support.
    (c) Project Stages and Contractor Involvement. In the long-term 
technical assistance projects as described above, there are four 
discrete but sometimes overlapping decision stages which take place--
with the principal contractor usually involved in the last three.
    (1) Problem analysis and project identification. After the host 
government has indicated a desire for U.S. collaboration on a particular 
problem and the USAID field mission has determined that the proposed 
activity is consistent with its program goals and priorities, 
considerable effort is usually necessary to refine further the project 
purpose and type of assistance required and provide a basis for 
contractor selection. This is a crucial step and is focused on results 
sought--on what the prospective contractor is expected to produce in 
relation to resources to be used and to project purpose. It should 
result in a clear understanding of what the LDC wants, and an overall 
plan which includes agreement on specific objectives or outputs, 
acceptable types of activities and inputs and an initial budget--
resulting in project documentation. At this step, USAID makes decisions 
it cannot delegate on what it will support and at what cost. If needed 
to supplement its direct-hire expertise, USAID can use outside 
consultants for analysis and advice but retains the ultimate decision 
for itself in collaboration with, but independent of, the requesting 
host government. (Normally, the proposed contractor for project 
definition and subsequent implementation should not have been involved 
in the problem analysis and project identification stage as a consultant 
to either the host country government, host institution, or USAID. If a 
potential contractor has been so involved, particular care must be taken 
to prevent actual or apparent organizational conflicts of interest in 
the procurement that follows. This could require at a minimum, a careful 
assessment and complete documentation of reasons for selection.)
    Normally, there will need to be some mutual interaction between the 
overall planning stage outlined here and the detailed planning and 
design work which follows in the next phase. There will usually be some 
overlap, with preliminary decisions in this stage providing a basis for 
selection of implementing agents for stage (2) which in turn proceeds 
through some preliminary planning to guide completion of stage (1) as a 
basis for long-term contracting.
    (2) Project definition. At this stage, having selected the 
implementing agent, the U.S. and LDC organizations which will be 
collaborating in carrying out the project are encouraged to work out, to 
their mutual \3/8\satisfaction, the particulars of what to do and how to 
do it (i.e., detailed project design) within the context of LDC 
leadership and responsibility and the general agreements and budget 
reached in stage (1). The emphasis here is on the technical approach to 
be utilized and the scheduling and management of project inputs. This 
may involve a short-term reconnaissance and/or an extensive period of 
detailed joint planning and feeling out of what is feasible during a 
preliminary

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operating phase of the project, possibly lasting as much as a year or 
more. This stage recognizes the importance, for the problem-solving or 
ground breaking types of technical assistance, of involving the U.S. and 
LDC implementing organizations together as soon as the detailed design 
work begins. USAID's role here is to facilitate, not direct, the joint 
planning, assure consistency with prior agreements or concur in changes, 
affirm that the implementing parties have agreed on a reasonable project 
design, and prepare or cause to be prepared the documentation required 
for stage (3), including any amendments that might be required to the 
project documentation. If and when a decision is made by the host 
government and USAID to proceed into the operating phase with the same 
contractor, the U.S. intermediary should be treated as a cooperating 
partner in the negotiation of the subsequent long-term operating 
agreement(s) with the host government, host institution and USAID.
    (3) Implementation. The results of the approach outlined in the 
stage above should include, in addition to a better understanding and 
more meaningful commitment by all parties, the following specific 
products:
    (i) A jointly developed life-of-project design which reflects the 
commitment of all parties and includes clear statements of purpose, 
principal outputs, eligible types of activity and expenditure limits, 
critical assumptions, and major progress indicators;
    (ii) A workplan and input schedule for the first two years or at 
least as long as the expenditure period for the next obligation of 
project funds;
    (iii) Provisions for any administrative support, special services or 
other inputs by the host country, contractor, and/or USAID; and
    (iv) A plan for periodic joint evaluation and review or progress and 
subsequent workplans, normally annually, with the participation of all 
parties.
    Appropriate elements of these agreements and understandings are now 
embodied in a contract for project implementation, as described in 
paragraph (d)(3)(i) of the section on Contracting Implications. This 
contract allows the U.S. intermediary to apply its judgment, reflecting 
close collaboration with its LDC colleagues, in adjusting the flow of 
USAID-financed inputs and in making other operational decisions with a 
minimum of requirements for prior USAID approvals or contract amendments 
as long as the contractor stays within the bounds of the approved 
overall plan and budget. In this phase, USAID will give technical 
assistance contractors the authority and responsibility for using their 
specialized expertise to the fullest extent in the scheduling and 
managing of project inputs.
    (4) Monitoring, joint evaluation and replanning. With increased 
flexibility and responsibility for implementation placed with the 
technical assistance contractor, the host government, and/or 
institutional collaborator, improved and timely progress reporting and 
periodic, joint, and structured reviews of results and evolving plans 
are imperative as a basis for monitoring and evaluating contractor 
performance, revalidating or adjusting project design, and for 
determining future funding levels and commitments.
    Both the contractor's annual report and the joint review should be 
structured within the framework of purpose, outputs, performance 
indicators, etc., originally established in the project indentification 
phase--as modified by detailed project design--and reflected in the 
Project Agreement and other pertinent documentation. The field review 
will normally serve as the occasion for discussing changes in or 
additions to previously agreed-to workplans as well as proposing changes 
in purpose, types of activities authorized and budgets which require 
contract amendment. Obviously, the appropriate host government, host 
institution, and senior contractor officials should be thoroughly 
involved in the process, which will have to be adapted to the conditions 
within specific projects and countries. An important USAID 
responsibility is to assure that there is appropriate host country 
participation in developing and improving project plans prior to new 
obligations of funds. The special requirements and responsibilities of 
the various parties shall also be reflected in the project agreement and 
contract terms and in guidelines on the content of annual reports, 
evaluation procedures, etc.
    Standard checking on services actually delivered as a basis for 
reimbursement will be continued including appropriate audit of 
expenditures.
    (d) Contracting implications. The principal elements of change in 
present contracting practices, as detailed below, are earlier selection 
and involvement of the prime contractor, contracting by major stages of 
project design and operations, minimizing the need for precontract 
negotiations and contract amendments and USAID approvals, and providing 
technical assistance contractors with the authority and responsibility 
needed to manage implementation within the approved program bounds.
    (1) Selection. The early involvement of the contractor in the 
definition stage of a long-term technical assistance project, after 
USAID decides what it wants to undertake in stage (1), does not alter 
the Agency's responsibility to select its contractors carefully and in 
full compliance with appropriate contracting regulations and selection 
procedures. What is required here is that contractor selection be 
carried out at an earlier stage than has sometimes been the Agency 
practice in the past or with other types of

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contracts and in anticipation that the contractor, assuming adequate 
performance, will participate in all subsequent phases until final 
completion.
    (2) Contracting stages. In contracting, the initial design stage 
should be separated from the longer term implementation stage without 
any USAID commitment to undertake the second until it has exercised its 
independent judgment based on the product of the first plus any outside 
expert appraisal it and the host country want to use.
    The long-term implementation stage itself may be further subdivided 
into contract periods which permit time between predetermined events for 
analysis, determination of new project requirements, and evaluation of 
performance prior to initiating the next phase by contract amendment/
extension. If, for any reason, such an examination does not appear to 
warrant project continuation, then termination of the project and/or 
contract would be the next step.
    (3) Flexible implementation authority. While good project design 
will eliminate or diminish many operational problems, the very nature of 
long-term technical assistance requires flexible implementation within 
agreed purposes, ultimate outputs, types of activity and available 
financing. With these key variables for USAID management control 
established, contracts should be written so as to minimize the need for 
amendments and USAID approval of changes in input particulars. This can 
be facilitated, both for the USAID, host country, institution, and the 
contractor by:
    (i) Retention of operational plan in contract and removal of 
workplan. The contract narrative will contain the life-of-the-project 
Operational Plan, consistent with the project design as developed in 
stage (2) and reflected in the project documentation (and subsequent 
amendments thereto). The Operational Plan includes a statement of the 
purpose to be achieved, the outputs to be produced by the contractor and 
the types of activities to be undertaken, the more significant 
indicators of progress, a general description of the type of inputs that 
are authorized and intended to be provided during the life of the 
project, and the overall budget.
    In order to allow adjustments at the implementation level without 
going through the contract amendment process, the detailed but short-
term workplan containing specific descriptions and scheduling of all 
inputs such as numbers and types of staff, participants, commodities, 
etc., and specific activities, will not be a part of the contract. It is 
a working document to be modified in the field when the situation 
demands. The latest version will be available as a supporting document 
to justify proposed new obligation levels. Normally, the workplan and 
derived budget will cover a rolling two year period, i.e., each year 
another yearly increment is added after review and approval.
    (ii) Budget flexibility. To support this implementation flexibility, 
contract budget or fiscal controls will be shifted from fixed line items 
for each input category to program categories, permitting the technical 
assistance contractor to adjust amounts and timing to achieve previously 
approved types of activity. This same type of flexibility should apply 
to any local currency supplied for project operations and/or contractor 
staff support. While an essential corollary to eliminating the workplan 
from the contract, this is not a unique procedure under cost 
reimbursement type contracts when the contractor has demonstrated 
adequate management capability.
    (iii) Negotiation of advance understandings. To permit university 
and international research center contractors to manage their activities 
in accordance with their own policies and procedures and thereby sharpen 
their management responsibility while achieving substantial savings in 
time and reduced documentation, USAID may negotiate advance 
understandings with its technical assistance contractors on dollar costs 
and administrative procedures that would be included by reference in its 
subsequent contracts. Upon receipt of a request from the contractor that 
their policies be reviewed and approved for usage in their contract in 
lieu of the standard terms and conditions, OP/PS/OCC, USAID/W will 
initiate negotiations of such policies in an expeditious manner. The 
approved policies will be used in all relevant relations involving the 
Agency and respective contractors in lieu of traditional contract 
standard provisions, whenever this may be appropriate. This does not 
apply to local currency costs and host government procedures which must 
be negotiated in each case.
    The purpose of the practices listed above is not only to give a 
qualified contractor the authority to adjust the composition and timing 
of inputs but to assign to it clear responsibility for managing such 
resources, as the evolving circumstances require, to achieve the agreed-
upon outputs on a cost efficient basis. It should also reduce the delay 
and paperwork involved in frequent but minor contract amendments, and 
approvals. For the agency as a whole, both in the Mission and in USAID/
W, these have involved a large workload and cost.
    (e) Role of USAID. Nothing in this appendix is intended to delegate, 
diminish or otherwise modify USAID's final responsibility for the 
prudent management of public funds and its own programs. Rather in 
withdrawing from the day-to-day involvement in and responsibility for 
the management of adjustment of the flow of inputs during the 
implementation, the best use of limited agency staff and time can be 
devoted to protecting

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the public interest in gaining maximum results from the funds 
appropriated for technical assistance by:
    (1) Seeking optimum identification in terms of LDC priorities and 
U.S. capabilities;
    (2) Mobilizing and selecting the best U.S. professional talent to 
design and carry out the project;
    (3) Monitoring what is happening to assure adequacy of processes, 
get a feel of results, assure actual delivery of inputs being financed;
    (4) Assuring that the attention of USAID's implementation agents and 
LDC colleagues stay well focused on project purpose and results to be 
achieved (outputs) and the relation to these of what is being done and 
actual results;
    (5) Providing intermediaries adequate authority and responsibility 
to adjust inputs promptly and sensitively to the evolving project 
situations.
    Attention to these considerations, and to achievements of the 
preimplementation conditions prescribed above, should greatly increase 
the chances for successful project completion and impact on a cost 
effective basis, which is the final measurement of prudent management.

  Attachment to Appendix F--Guidelines for Requests for Expressions of 
                                Interest

                      A. Length and Level of Detail

    A Request for Expression of Interest (REI) should include more than 
just a short letter expressing interest, but should not be in the detail 
of a technical proposal (RFTP). The REI is not the only source of 
information that can or should be used for selection, but at least a 
minimum level of information should be contained in each document. A ten 
page paper that responds to the selection criteria included in every REI 
should be sufficient for evaluation purposes. The selection criteria 
should specify the technical inputs required for successful execution of 
the project and normally require a response in three general areas:
    1. A description of the institution's capability to address the 
problem described in the REI.
    2. Any related experience, whether in the country or region or in 
the problem area.
    3. A demonstrable commitment of the institution to support the 
project.
    The responses should address the capability, experience, and 
commitment to the particular project.

                    B. Specific Personnel Information

    The response should specify within the areas set out in the 
selection criteria the following planning and personnel factors.
    1. The design team plan and the scope of work for each member.
    2. A list of candidates for the design team and their credentials.
    3. A list of possible candidates for long-term assignment to the 
project. (Since there has been no project design, the specific technical 
assistance slots and technical responsibilities are vague. But it is 
expected that at least half of the personnel needs can be estimated 
early in the project. The institution should make its best guess for the 
team and present to the Agency the persons or types of persons with whom 
they are likely to contract.)

                   C. Multiple Institution Submissions

    Joint effort on the part of several institutions is encouraged when 
appropriate. A single institution may submit an expression of interest 
for part of the project without knowledge of other collaborators or it 
may submit information in response to A and B of this attachment as part 
of a suggested collection of institutions. In either case, a proposed 
plan for cooperation is necessary.
    However, such joint efforts must specify the division of 
responsibilities for the planning and personnel factors indicated in B 
of this attachment. Often USAID will identify the need for cooperation 
and suggest such an effort in the REI. Even if USAID does not suggest 
collaboration, joint efforts with a description of the cooperation would 
be an appropriate way to respond to an REI.

(Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; 
E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435)

[49 FR 13301, Apr. 3, 1984, as amended at 49 FR 33669, Aug. 24, 1984; 50 
FR 16089, Apr. 24, 1985; 51 FR 20652, June 6, 1986; 52 FR 6160, Mar. 2, 
1987]



               Sec. Appendixes G-H to Chapter 7 [Reserved]



    Sec. Appendix I to Chapter 7--USAID's Academic Publication Policy

                         1. Statement of Policy

    This is a statement of USAID policy on publication, or release to 
parties other than those specifically authorized, of unclassified 
materials gathered or developed under contracts with academic 
institutions.

                        2. Underlying Principles

    USAID favors and encourages the publication of scholarly research as 
well as the maximum availability, distribution, and use of knowledge 
developed in its program.
    This policy statement does not deal with material that is classified 
for security reasons. It does deal with considerations of national 
interest, not of sufficient gravity to warrant security classification, 
but serious enough to affect adversely the conduct of

[[Page 129]]

U.S. assistance programs. Consequently, in addition to the requirements 
of courtesy, propriety, and confidence which normally guide scholars in 
their work, there should also be consideration of the potential 
repercussions of publication on the successful execution of development 
and other cooperative programs in which the United States and foreign 
countries are involved.

                       3. Operational Definitions

    The Agency draws a distinction between two kinds of manuscripts 
which a scholar may wish to publish:
    (a) A report which is prepared and delivered to the Agency under the 
terms of the contract (a ``contract manuscript''); and
    (b) An article or book based upon experience and information gained 
under an USAID contract but not prepared or delivered under the contract 
(a ``non-contract manuscript'').
    There are two kinds of actions, to be specified in the contract, 
which the Agency can take upon notification of a contractor's desire to 
publish:
    (a) Comment only, under which USAID and the foreign government 
involved may review the manuscript, and have their comments considered 
seriously by the contractor prior to publication; and
    (b) Authorization for release, which USAID may withhold if 
reconciliation between the national interest and the author's interest 
is impossible.

                          4. Policy Statements

    (a) USAID, as a general rule, will not require an academic 
institution to obtain permission to publish the written work produced 
under a contract. It will ask for the opportunity to review the 
manuscript for comment only, prior to publication.
    In the case of a contract manuscript, USAID reserves the right to 
disclaim endorsement of the opinions expressed; if it is a noncontract 
manuscript, USAID reserves the right to disassociate itself from 
sponsorship or publication.
    (b) On the other hand, USAID may reserve the right of authorization 
for release in those exceptional cases where conditions exist making it 
reasonably foreseeable, in light of the contract's scope of work and the 
manner and place of performance, that the written work to be prepared 
and delivered under the contract may have adverse repercussions on the 
relations and programs of the United States. Where this right is 
reserved, it must be so specified in the contract. In determining where 
to reserve such right, USAID will consider all relevant factors, 
including:
    (1) The extent to which prompt and full performance of the contract 
will require access, facilitated by reason of the contract, to 
information not generally available to scholars;
    (2) The extent to which the work involves matters of political 
concern to foreign countries, particularly where any substantial part of 
the work is to be performed therein;
    (3) The extent to which, by reason of USAID's close involvement and 
cooperation in the performance of the contract, the work product may be 
so identified with USAID itself as to prevent effective disclaimer of 
USAID endorsement thereof;
    (4) The extent to which the objective of the contract is to provide 
advice to USAID or to a foreign government of immediate operational 
significance in the conduct of the USAID program or the implementation 
of governmental programs in the host country;
    (5) The desires of the host country.

                            5. Implementation

    The successful implementation of this policy on publication rests on 
a thorough understanding and acceptance of these principles by USAID and 
the prospective contractor. The actual publications provision for a 
particular contract, then, would be so worded as to reflect the 
agreement reached in the contract negotations.
    USAID's concern with noncontract manuscripts is related to the 
identification of a manuscript with the U.S. Government. This concern 
will be modified by the passage of time following termination of the 
contract.
    In the normal case of prepublication review for USAID comment, the 
institution will submit a copy of the manuscript not later than the date 
of submission to the publisher. This gives the Agency time to comment if 
it is deemed appropriate. However, in the case of review for 
authorization, timely notification of USAID's response will be given, 
consistent with the size of the manuscript and the number and location 
of the parties involved.
    The Agency will make every effort to expedite this review procedure 
in accordance with the underlying principle described at the beginning 
of this policy statement.

(Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; 
E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435)

[49 FR 13304, Apr. 3, 1984]



Sec. Appendix J to Chapter 7--Direct USAID Contracts With a Cooperating 
Country National and With a Third Country National for Personal Services 
                                 Abroad

                               1. General

    (a) Purpose. This appendix sets forth the authority, policy, and 
procedures under which USAID contracts with cooperating

[[Page 130]]

country nationals or third country nationals for personal services 
abroad.
    (b) Definitions. For the purpose of this appendix:
    (1) Personal services contract (PSC) means a contract that, by its 
express terms or as administered, make the contractor personnel appear, 
in effect, Government employees (see FAR 37.104).
    (2) Employer-employee relationship means an employment relationship 
under a service contract with an individual which occurs when, as a 
result of (i) the contract's terms or (ii) the manner of its 
administration during performance, the contractor is subject to the 
relatively continuous supervision and control of a Government officer or 
employee.
    (3) Non-personal services contract means a contract under which the 
personnel rendering the services are not subject either by the 
contract's terms or by the manner of its administration, to the 
supervision and control usually prevailing in relationships between the 
Government and its employees.
    (4) Independent contractor relationship means a contract 
relationship in which the contractor is not subject to the supervision 
and control prevailing in relationships between the Government and its 
employees. Under these relationships, the Government does not normally 
supervise the performance of the work, or the manner in which it is to 
be performed, control the days of the week or hours of the day in which 
it is to be performed, or the location of performance.
    (5) Contractor means a cooperating country national or a third 
country national who has entered into a contract pursuant to this 
appendix.
    (6) Cooperating country means the country in which the employing 
USAID Mission is located.
    (7) Cooperating country national (CCN) means an individual who is a 
cooperating country citizen or a non-cooperating country citizen 
lawfully admitted for permanent residence in the cooperating country.
    (8) Third Country National (TCN) means an individual
    (i) Who is neither a citizen nor a permanent legal resident alien of 
the United States nor of the country to which assigned for duty, and
    (ii) Who is eligible for return to his/her home country or country 
of recruitment at U.S. Government expense [see Section 12, General 
Provision 9 paragraph (n)].

                             2. Legal Basis

    (a) Section 635(b) of the Foreign Assistance Act of 1961, as 
amended, hereinafter referred to as the ``FAA'', provides the Agency's 
contracting authority.
    (b) Section 636(a)(3) of the FAA authorizes the Agency to enter into 
personal services contracts with individuals for personal services 
abroad and provides further that such individuals ``* * * shall not be 
regarded as employees of the U.S. Government for the purpose of any law 
administered by the Civil Service Commission.'' \1\
---------------------------------------------------------------------------

    \1\ The Civil Service Commission is now the Federal Office of 
Personnel Management.
---------------------------------------------------------------------------

                            3. Applicability

    (a) This appendix applies to all personal services contracts with 
CCNs or TCNs to provide assistance abroad under Section 636(a)(3) of the 
FAA.
    (b) This appendix does not apply to:
    (1) Contracts for non-personal services with TCNs or CCNs; such 
contracts are covered by the basic text of the FAR and AIDAR.
    (2) Personal services contracts with U.S. citizens or U.S. resident 
aliens for personal services abroad; such contracts are covered by 
appendix D of this chapter.
    (3) Appointments of experts and consultants as USAID direct-hire 
employees; such appointments are covered by USAID Handbook 25, 
Employment and Promotion or superseding Chapters of the Automated 
Directive System (ADS).

                                4. Policy

    (a) General. USAID may finance, with either program or operating 
expense (OE) funds, the cost of personal services as part of the 
Agency's program of foreign assistance by entering into a direct 
contract with a CCN or a TCN for personal services abroad.
    (1) Program funds. Under the authority of Section 636(h) of the FAA, 
program funds may be obligated for periods up to five years where 
necessary and appropriate to the accomplishment of the tasks involved.
    (2) Operating expense funds. Pursuant to USAID budget policy, OE 
funded salaries and other recurrent cost items may be forward funded for 
a period of up to three (3) months beyond the fiscal year in which these 
funds were obligated. Non-recurring cost items may be forward funded for 
periods not to exceed twenty-four (24) months where necessary and 
appropriate to accomplishment of the work. \2\
---------------------------------------------------------------------------

    \2\ If there is a need, these contracts may be written for 5 years 
but only funded as outlined above.
---------------------------------------------------------------------------

    (b) Limitations on Personal Services Contracts. (1) Personal 
services contracts may only be used when adequate supervision is 
available.
    (2) Personal services contracts may be used for commercial 
activities. Commercial activities provide a product or service which 
could be obtained from a commercial source. See Attachment A of OMB 
Circular A-76 for a representative list of such activities.

[[Page 131]]

    (3) Notwithstanding any other provision of USAID directives, 
regulations or delegations, Cooperating Country or Third Country 
Nationals may be delegated or assigned any authority, duty or 
responsibility, delegated or assigned U.S. citizen direct-hire employees 
(USDH employees) except that:
    a. They may not supervise USDH employees of USAID or other U.S. 
Government agencies. They may supervise USPSCs and non-U.S. citizen 
employees.
    b. They may not be designated a Contracting Officer or delegated 
authority to sign obligating or subobligating documents.
    c. They may represent the agency, except that communications that 
reflect a final policy, planning or budget decision of the agency must 
be cleared by a USDH employee.
    d. They may participate in personnel selection matters but may not 
be delegated authority to make a final decision on personnel selection.
    e. Services which involve security classified material.
    (4) Exceptions. Exceptions to the limitations in (b)(3) must be 
approved by the Assistant Administrator for Management (AA/M).
    (c) Conditions of Employment. (1) General. For the purpose of any 
law administered by the U.S. Office of Personnel Management, USAID PSC 
contractors are not to be regarded as employees of the U.S. Government, 
are not included under any retirement or pension program of the U.S. 
Government, and are not eligible for the Incentive Awards Program 
covered by Uniform State/USAID/USIA regulations. Each USAID Mission is 
expected to participate in the Joint Special Embassy Incentive Awards 
Program. The program is administered by a joint committee which 
establishes procedures for submission, review and approval of proposed 
awards. Other than these exceptions, CCNs and TCNs who are hired for 
work in a cooperating country under PSCs generally will be extended the 
same benefits and be subject to the same restrictions as Foreign Service 
Nationals (FSNs) employed as direct-hires by the USAID Mission.
    (2) Compensation. (i) It is USAID's general policy (see AIDAR 
722.170) that PSC compensation may not, without the approval of the 
Mission Director or Assistant Administrator, exceed the prevailing 
compensation paid to personnel performing comparable work in the 
cooperating country. Compensation for TCN or CCN personal services 
contractors set in accordance with the provisions of 4c(2)(ii) below 
satisfies this requirement.
    (ii) In accordance with Section 408(a)(1) of the Foreign Service Act 
of 1980, a local compensation plan forms the basis for all compensation 
payments to FSNs which includes CCNs and TCNs. The plan is each post's 
official system of position classification and pay, consisting of the 
local salary schedule which includes salary rates, statements 
authorizing fringe benefit payments, and other pertinent facets of 
compensation for TCNs and CCNs, and the local position classification 
system as reflected in the Local Employee Position Classification 
Handbook (LEPCH) or equivalent in effect at the Mission. Compensation 
for PSCs will be in accordance with the local compensation plan, to the 
extent that it covers employees of the type or category being employed, 
unless the Mission Director determines otherwise. If the Mission 
Director determines that compensation in accordance with the local plan 
would be inappropriate in a particular instance, then compensation will 
be set in accordance with (in order of preference):
    (A) Any other Mission policies on foreign national employee 
compensation; or
    (B) Paragraphs 4(c) (d), (e), (g), (h), and (i) of appendix D. When 
compensation is set in accordance with this exception, the record shall 
be documented in writing with a justification prepared by the requesting 
office and approved by the Mission Director.
    (iii) The earning of leave (annual and sick), allowances and 
differential (if applicable), salaries and all other related benefits 
cannot be enumerated in this appendix as they vary from Mission to 
Mission and are based upon the compensation plan for each.
    (iv) Unless otherwise authorized, the currency in which compensation 
is paid to contractors shall be in accordance with the prevailing local 
compensation practice of the post.
    (v) CCN and TCN contractors are eligible for allowances and 
differential on the same basis as direct-hire FSN employees under the 
post compensation plan.
    (vi) A USAID PSC who is a spouse of a current or retired U.S. Civil 
Service, U.S. Foreign Service, or U.S. military service member, and who 
is covered by their spouse's government health or life insurance policy, 
is ineligible for a contribution towards the costs of annual health and 
life insurance.
    (vii) Retired CCNs and TCNs may be awarded personal services 
contracts without any reduction in or offset against their Government 
annuity.
    (3) Incentives Awards. (i) All Cooperating Country Nationals direct-
hire and Personal Services Contractors (PSCs) and Third Country 
Nationals (PSCs) of the Foreign Affairs Community are eligible for the 
Joint Special Embassy Incentive Awards Program.
    (ii) Meritorious Step Increases for USAID FSN PSCs may be authorized 
provided the granting of such increases is the general practice locally.
    (iii) The Joint Country Awards Committee administers each post's 
(Embassy) award program, including establishment of procedures for 
submission, review and approval of proposed awards.

[[Page 132]]

    (4) Training. CCN and TCN PSCs are eligible for most of the training 
courses offered in the Training Course Schedule. However, applications 
will be processed on a case-by-case basis and are required to be 
approved by the Contracting Officer.

              5. Soliciting for Personal Services Contracts

    (a) Technical Officer's Responsibilities. The Technical Officer will 
prepare a written detailed statement of duties and a statement of 
minimum qualifications to cover the position being recruited for; the 
statement shall be included in the procurement request. The procurement 
request shall also include the following additional information as a 
minimum:
    (1) The specific foreign location(s) where the work is to be 
performed, including any travel requirements (with an estimate of 
frequency);
    (2) The length of the contract, with beginning and ending dates, 
plus any options for renewal or extension;
    (3) The basic education, training, experience, and skills required 
for the position;
    (4) A certification from the officer in the Mission responsible for 
the LEPCH or equivalent that the position has been reviewed and is 
properly classified as to a title, series and grade in accordance with 
the LEPCH. If the position does not fall within the LEPCH or equivalent 
system, and estimate of compensation based on subparagraphs 4(c)(2)(ii) 
(A) or (B) of this Appendix after consultations or in coordination with 
the contract officer or executive officer;
    (5) A list of Government or host country furnished items (e.g., 
housing).
    (b) Contracting Officer's Responsibilities. (1) The Contracting 
Officer will prepare the solicitation for personal services which shall 
contain:
    (i) Three sets of certified biographical data and salary history. 
(Upon receipt, one copy of the above information shall be forwarded to 
the Project Officer);
    (ii) A detailed statement of duties or a completed position 
description for the position being recruited for;
    (iii) A copy of the prescribed contract Cover Page, Contract 
Schedule, and General Provisions as well as the FAR Clause to be 
included in full text and a list of those to be incorporated by 
reference; and
    (iv) A copy of General Notice entitled ``Employee Review of the New 
Standards of Conduct'' dated October 30, 1992.
    (2) The Contracting Officer shall comply with the limitations of 
AIDAR 706.302-70(c) as detailed in paragraph 5(c) below.
    (c) Competition. (1) Under AIDAR 706.302-70(b)(1), Personal Services 
Contracts are exempt from the requirements for full and open competition 
with two limitations that must be observed by Contracting Officers:
    (i) Offers are to be requested from as many potential offerors as is 
practicable under the circumstances, and
    (ii) A justification supporting less than full and open competition 
must be prepared in accordance with FAR 6.303.
    (2) A class justification was approved by the USAID Procurement 
Executive to satisfy the requirements of AIDAR 706.302-70(c)(2) for a 
justification in accordance with FAR 6.303. Use of this class 
justification for Personal Services Contracts with Cooperating Country 
Nationals and Third Country Nationals is subject to the following 
conditions:
    (i) New contracts are publicized consistent with Mission/Embassy 
practice on announcement of direct hire FSN positions. Renewals or 
extensions with the same individual for continuing service do not need 
to be publicized.
    (ii) A copy of the class justification (which was distributed to all 
USAID Contracting Officers via Contract Information Bulletin) must be 
included in the contract file, together with a written statement, signed 
by the Contracting Officer, that the contract is being awarded pursuant 
to AIDAR 706.302-70(b)(1); that the conditions for use of this class 
justification have been met; and that the cost of the contract is fair 
and reasonable. If the conditions in paragraphs (2)(i) and (ii) are not 
followed, the Contracting Officer must prepare a separate justification 
as required under AIDAR 706.302-70(c)(2).
    (3) Since the award of a personal services contract is based on 
technical qualifications, not price, and since the biographical data and 
salary history are used to solicit for such contracts, FAR Subparts 15.4 
and 15.5 are inappropriate and shall not be used. Instead, the 
solicitation and selection procedures outlined in this appendix shall 
govern.

               6. Negotiating a Personal Services Contract

    Negotiating a Personal Services Contract is significantly different 
from negotiating a nonpersonal services contract because it establishes 
an employer-employee relationship; therefore, the selection and 
negotiations procedures are more akin to the personal selection 
procedures.
    (a) Technical Officer's Responsibilities. The Technical Officer 
shall be responsible for reviewing and evaluating the applications 
received in response to the solicitation issued by the Contracting 
Officer. If deemed appropriate, interviews may be conducted with the 
applicants before the final selection is submitted to the Contracting 
Officer.
    (b) Contracting Officer's Responsibilities. (1) The Contracting 
Officer shall forward a copy of biographical data and salary history 
received under the solicitation to the Technical Officer for evaluation.
    (2) On receipt of the Technical Officer's recommendation, the 
Contracting Officer

[[Page 133]]

shall conduct negotiations with the recommended applicant. The terms and 
conditions of the contract will normally be in accordance with the local 
compensation plan which forms the basis for all compensation on payments 
paid to FSNs which includes CCNs and TCNs.
    (3) The Contracting Officer shall use the certified salary history 
on the certified statement of biographical data and salary history as 
the basis for salary negotiations, along with the Technical Officer's 
cost estimate.
    (4) The Contracting Officer will obtain necessary data for a 
security and suitability clearance to the extent required by USAID 
Handbook 6, Security or superseding ADS Chapters.

                7. Executing a Personal Services Contract

    Contracting activities, whether USAID/W or Mission, may execute 
Personal Services Contracts, provided that the amount of the contract 
does not exceed the contracting authority that has been redelegated to 
them. See AIDAR 701.601. In executing a personal service contract, the 
Contracting Officer is responsible for insuring that:
    (a) The proposed contract is within his/her delegated authority;
    (b) A written detailed statement of duties covering the proposed 
contract has been received;
    (c) The proposed scope of work is contractible, contains a statement 
of minimum qualifications from the technical office requesting the 
services, and is suitable for a personal services contract in that:
    (1) Performance of the proposed work requires or is best suited for 
an employer-employee relationship, and is thus not suited to the use of 
a non-personal services contract;
    (2) The scope of work does not require performance of any function 
normally reserved for direct-hire Federal employees (under paragraph 
4(b) of this appendix); and
    (3) There is no apparent conflict of interest involved (if the 
Contracting Officer believes that a conflict of interest may exist, the 
question should be referred to the cognizant legal counsel);
    (d) Selection of the contractor is documented and justified (AIDAR 
706.302-70(b)(1) provides an exception to the requirement for full and 
open competition for Personal Services Contracts abroad; see paragraph 
5(c) of this appendix);
    (e) The standard contract format prescribed for a Cooperating 
Country National and a Third Country National personal services contract 
(Sections 9, 10, 11, 12, and 13 of this appendix as appropriate) is 
used, or that any necessary deviations are processed as required by 
AIDAR 701.470;
    (f) The contractor has submitted the names, addresses, and telephone 
numbers of at least two persons who may be notified in the event of an 
emergency (this information is to be retained in the contract file);
    (g) The contract is complete and correct and all information 
required on the contract Cover Page (USAID form 1420-36B) has been 
entered;
    (h) The contract has been signed by the Contracting Officer and the 
contractor, and fully executed copies are properly distributed;
    (i) The following clearances, approvals and forms have been 
obtained, properly completed, and placed in the contract file before the 
contract is signed by both parties:
    (1) Security clearance to the extent required by USAID Handbook 6, 
Security or other superseding Chapters of the Automated Directives 
System;
    (2) Mission, host country, and technical office clearance, as 
appropriate;
    (3) Medical clearance(s) based on a full medical examination(s) and 
statement of medical opinion by a licensed physician. The physician's 
medical opinion must be in the possession of the Contracting Officer 
prior to signature of contract. If a TCN is recruited, medical clearance 
requirements apply to the contractor and each dependent who is 
authorized to accompany the contractor;
    (4) The approval for any salary in excess of ES-6, in accordance 
with Appendix G of this chapter;
    (5) A copy of the class justification or other appropriate 
explanation and support required by AIDAR 706.302-70, if applicable;
    (6) Any deviation to the policy or procedures of this Appendix, 
processed and approved under AIDAR 701.470;
    (7) The memorandum of negotiation;
    (j) The position description is classified in accordance with the 
LEPCH, and the proposed salary is consistent with the local compensation 
plan or the alternate procedures established in 4(c)(2)(ii) above;
    (k) Funds for the contract are properly obligated to preclude 
violation of the Anti-Deficiency Act, 31 U.S.C. 134 (the Contracting 
Officer ensures that the contract has been properly recorded by the 
appropriate accounting office prior to its release for the signature of 
the selected contractor);
    (l) The contractor receives and understands USAID General Notice 
entitled ``Employee Review of the New Standards of Conduct'' dated 
October 30, 1992 and a copy is attached to each contract, as provided 
for in paragraph (c) of General Provision 2, Section 12;
    (m) Agency conflict of interest requirements, as set out in the 
above notice are also met by the contractor prior to his/her reporting 
for duty;
    (n) A copy of a Checklist for Personal Services Contractors which 
may be in the form set out above or another form convenient for the 
contracting officer, provided that a form containing all of the 
information described

[[Page 134]]

in this paragraph 7 shall be prepared for each PSC and placed in the 
contract file;
    (o) In consultation with the regional legal advisor and/or the 
regional contracting officer, the contract is modified by deleting from 
the General Provisions (Sections 12 and 13 of this appendix) the 
inapplicable clause(s) by a listing in the Schedule; and
    (p) The block entitled, ``Acquisition and Assistance Request 
Document'' on the Cover Page of the contract format is completed by 
inserting the four-segment technical number as prescribed in USAID 
Handbook 18, the USAID Code Book Appendix D or superseding ADS Chapter 
if the PSC is project-funded.

                          8. Contracting Format

    The prescribed Contract Cover Page, Contract Schedules, General 
Provisions and FAR Clauses for personal service contracts for TCNs and 
CCNs covered by this Appendix are included as follows:
    9. ``Cover Page'' for a Contract with a Cooperating Country National 
or with a Third Country National for Personal Services.
    10. ``Schedule'' for a Contract with a Cooperating Country National 
or Third Country National Personal Services Contracts.
    11. ``Optional Schedule'' for a Contract with a Cooperating Country 
National or Third Country National Personal Services Contracts.
    [Use of the Optional Schedule is intended to serve as an alternate 
procedure for OE funded Foreign Service National PSCs. The schedule was 
developed for use when the Contracting Officer anticipates incremental 
recurring cost funded contracts. It should be noted that the Optional 
Schedule eliminates the need to amend the contract each time funds are 
obligated. However, the Contracting Officer is required to amend each 
contract not less than twice during a 12 month period to ensure that the 
contract record of obligations is up to date and agrees with the figures 
in the master funding document.]
    12. ``General Provisions'' for a Contract With a Cooperating Country 
National or With a Third Country National for Personal Services.
    13. FAR Clauses to be incorporated in full text as well as by 
reference in Personal Services Contracts.

9. ``Cover page'' for a Contract With a Cooperating Country National or 
          With a Third Country National for Personal Services.

    --AID Form 1420-36B (11/96)

[[Page 135]]

[GRAPHIC] [TIFF OMITTED] TR11AU97.005

 10. ``Schedule'' for a Contract With a Cooperating Country National or 
           Third Country National Personal Services Contracts

Contract No.------
Table of Contents
    The Schedule on pages ------ through ------ consists of this Table 
of Contents, the following Articles, and General Provisions:
Article I Statement of Duties

[[Page 136]]

Article II Period of Service
Article III Contractor's Compensation and Reimbursement
Article IV Costs Reimbursable and Logistic Support
Article V Precontract Expenses
Article VI Additional Clauses

General Provisions

    The following provisions, numbered as shown below, omitting 
number(s) ------, are the General Provisions (GPs) of this Contract:

1. Definitions
2. Compliance with Applicable Laws and Regulations
3. Physical Fitness
4. Security
5. Workweek
6 Leave and Holidays
7. Social Security and Cooperating Country Taxes
8. Insurance
9. Travel and Transportation
10. Payment
11. Contractor-Mission Relationships
12. Termination
13. Allowances
14. Advance of Dollar Funds
15. Conversion of U.S. Dollars to Local Currency
16. Post of assignment Privileges
17. Release of Information
18. Notices
19. Incentive Awards
20. Training
21. Medical Evacuation Services

    Schedule

    Note: Use of the following Schedule is not mandatory.

    The Schedule is intended to serve as a guideline and as a checklist 
for contracting offices in drafting contract schedules. Article language 
shall be changed to suit the needs of the particular contract. Special 
attention should be given to the financial planning sections where 
unnecessary line items should be eliminated.

                     Article I--Statement of Duties

    [The statement of duties shall include:
    A. General statement of the purpose of the contract.
    B. Statement of duties to be performed.
    C. Orientation or training to be provided by USAID.]

                      Article II--Period of Service

    Within ------ days after written notice from the Contracting Officer 
that all clearances, including the statement of medical opinion required 
under General Provision Clause 3, have been received, unless another 
date is specified by the contracting officer in writing, the contractor 
shall proceed to ------ and shall promptly commence performance of the 
duties specified above. The contractor's period of service shall be 
approximately ------ in ------. (Specify time of duties in each 
location.)

        Article III--Contractor's Compensation and Reimbursement

    A. Except as reimbursement may be specifically authorized by the 
Mission Director or contracting officer, USAID shall pay the contractor 
compensation after it has accrued and make reimbursements, if any are 
due, in currency of the post or for necessary and reasonable costs 
actually incurred in the performance of this contract within the 
categories listed in Paragraph D, below, and subject to the conditions 
and limitations applicable thereto as set out herein and in the attached 
General Provisions (GPs).
    B. The amount budgeted and available as personal compensation to the 
contractor is calculated to cover a calendar period of approximately --
---- (days) (weeks) (months) (years) (which is to include) (1) vacation 
and sick leave which may be earned during contractor's tour of duty (GP 
Clause No. 6), (2) ------ days for authorized travel (GP Clause 9), and 
(3) ------ days for orientation and consultation if required by the 
Statement of Duties.
    C. The contractor shall earn vacation leave at the rate of ------ 
days per year under the contract (provided the contract is in force for 
at least 90 days) and shall earn sick leave at the rate of ------ days 
per year under the contract.
    D. Allowable Costs.
    1. Compensation at the rate of LC ------ per (year) (month) (week) 
(day), equivalent to Grade FSN-------/------ in accordance with the 
Mission's Local Compensation Plan. If during the effective period of 
this contract the Local Compensation Plan is revised, contractor's 
compensation will be revised accordingly and contractor will be notified 
in writing by the contracting officer. Adjustments in compensation for 
periods when the contractor is not in compensable pay status shall be 
calculated as follows: Rate of LC ------ per (day) (hour).
    LC ------
    2. Overtime (Unless specifically authorized in the Schedule of this 
contract, no overtime hours shall be allowed hereunder.)
    3. Travel and Transportation (Ref. GP Clause 9). (Includes the value 
of TRs furnished by the Government, not payable to contractor).

a. United States--$------
b. International--$------
c. Cooperating and Third Country--$------, LC ------

    Subtotals Item 3--$------, LC ------

    4. Subsistence or Per Diem (Ref. GP Clause 9).

a. United States--$------

[[Page 137]]

b. International--$------
c. Cooperating and Third Country--$------, LC------
    Subtotals Item 4--$------, LC------

    5. Other Direct Costs

a. Physical Examination (Ref. GP Clause 3)--LC------
b. Miscellaneous--LC------
    Subtotal Item--LC------

    Total Estimated Costs (Lines 1 thru 5) $------ LC ------
    E. Maximum U.S. Dollar and Local Currency Obligation.
    In no event shall the maximum U.S. Dollar obligation under this 
contract exceed $------ nor shall the maximum local currency obligation 
exceed LC ------. Contractor shall keep a close account of all 
obligations incurred and accrued hereunder and promptly notify the 
contracting officer whenever it appears that the said maximum is not 
sufficient to cover all compensation and costs reimbursable which are 
anticipated under the contract.
    F. Under the Joint Incentive Awards Program for FSN monetary awards 
will be made pending availability of funds. The increase for the award 
will be effected by the execution of an SF-1126 which will be attached 
to the contract and will form a part of the contract. In no event may 
costs under the contract exceed the total amount obligated.
    Meritorious Step Increases for FSN PSCs may be authorized provided 
the granting of such increase is the general practice locally.

           Article IV--Costs Reimbursable And Logistic Support

    A. General.
    The contractor shall be provided with or reimbursed in local 
currency

(------) for the following: [Complete]

    B. Method of Payment of Local Currency Costs.
    Those contract costs which are specified as local currency costs in 
Paragraph A, above, if not furnished in kind by the cooperating 
government or the Mission, shall be paid to the contractor in a manner 
adapted to the local situation, based on vouchers submitted in 
accordance with GP Clause 10. The documentation for such costs shall be 
on such forms and in such manner as the Mission Director shall 
prescribe.
    C. Cooperating or U.S. Government Furnished Equipment and 
Facilities.
    [List any logistical support, equipment, and facilities to be 
provided by the cooperating government or the U.S. Government at no cost 
to this contract; e.g., office space, supplies, equipment, secretarial 
support, etc., and the conditions, if any, for use of such equipment.]

                     Article V--Precontract Expenses

    No expense incurred before signing of this contract will be 
reimbursed unless such expense was incurred after receipt and acceptance 
of a precontract expense letter issued to the contractor by the 
Contracting Officer, and then only in accordance with the provisions and 
limitations contained in such letter. The rights and obligations created 
by such letter shall be considered as merged into this contract.

                     Article VI--Additional Clauses

    [Additional Schedule Clauses may be added to meet specific 
requirements of an individual contract.]

11. Optional Schedule for a Contract With a Cooperating Country National 
          or Third Country National Personal Services Contracts

Contract No. ------
Table of Contents
(Optional Schedule)
    [Use of the Optional Schedule is not mandatory. It is intended to 
serve as an alternate procedure for OE funded Cooperating Country 
National and Third Country National PSCs. The schedule was developed for 
use when the Contracting Officer anticipates incremental recurring cost 
funded contracts.
    It should be noted that use of the Optional Schedule eliminates the 
need to amend the contract each time funds are obligated. However, 
Contracting Officer is required to amend each contract not less than 
twice during a 12 month period to ensure that the contract record of 
obligations is up to date and agrees with the figures in the master 
funding document.]
    The Schedule on pages ------ through ------ consists of this Table 
of Contents and the following Articles:

Article I Statement of Duties
Article II Period of Service
Article III Contractor's Compensation and Reimbursement
Article IV Costs Reimbursable and Logistic Support
Article V Precontract Expenses
Article VI Additional Clauses

General Provisions

    The following provisions, numbered as shown below, omitting 
number(s) ------, are the General Provisions (GPs) of this contract.

1. Definitions
2. Compliance with Applicable Laws and Regulations
3. Physical Fitness
4. Security
5. Workweek
6. Leave and Holidays
7. Social Security and Cooperating Country Taxes
8. Insurance

[[Page 138]]

9. Travel and Transportation
10. Payment
11. Contractor-Mission Relationships
12. Termination
13. Allowances
14. Advance of Dollar Funds
15. Conversion of U.S. Dollars to Local Currency
16. Post of Assignment Privileges
17. Release of Information
18. Notices
19. Incentive Awards
20. Training
21. Medical Evacuation Services

                     Article I--Statement of Duties

    [The statement of duties shall include:
    A. General statement of the purpose of the contract.
    B. Statement of duties to be performed.
    C. Orientation or training to be provided by USAID.]

                      Article II--Period of Service

    Employment under this contract is of a continuing nature. Its 
duration is expected to be part of a series of sequential contracts; all 
contract provisions and clauses and regulatory requirements concerning 
availability of funds and the specific duration of this contract shall 
apply.
    Within 10 days after written notice from the Contracting Offices 
that all clearances have been received, unless another date is specified 
by the Contracting Officer in writing, the contractor shall proceed to 
(name place) and shall promptly commence performance of the duties 
specified in Article I of this contract. The contractor's period of 
service shall be approximately (specify duration from date to date).

        Article III--Contractor's Compensation and Reimbursement

    A. Except as reimbursement may be specifically authorized by the 
Mission Director or Contracting Officer, USAID shall pay the contractor 
compensation after it has accrued and make reimbursements, if any are 
due in currency of the cooperating country (LC) in accordance with the 
prevailing practice of the post or for necessary and reasonable costs 
actually incurred in the performance of this contract within the 
categories listed in paragraph E, below, and subject to the conditions 
and limitations applicable thereto as set out herein and in the attached 
General Provisions (GPs).
    B. The amount budgeted and available as personal compensation to the 
contractor is calculated to cover a calendar period of approximately --
---- (days) (weeks) (months) (years) (which is to include) (1) vacation 
and sick leave which may be earned during the contractor's tour of duty 
(GP Clause No. 6), (2) ------ days for authorized travel (GP Clause 9), 
and (3) ------ days for orientation and consultation if required by the 
Statement of Duties.
    C. The contractor shall earn vacation leave at the rate of ------ 
days per year under the contract (provided the contract is in force for 
at least 90 days) and shall earn sick leave at the rate of ------ days 
per year under the contract.
    D. All employee rights and benefits from the previous contract or 
employment, i.e., accumulated annual and sick leave balances, original 
service computation dates, reserve fund contributions, accumulated 
compensatory time, social security contributions, seniority and 
longevity bonuses are considered allowable costs and as a continuation 
as long as the break in service does not exceed three days.
    E. Allowable Costs.
    1. The following illustrative budget details allowable costs under 
this contract and provides estimated incremental recurrent cost funding 
in the total amount shown. Additional funds for the full term of this 
contract will be provided by the preparation of a master PSC funding 
document issued by the Mission Controller for the purpose of providing 
additional funding for a specific period. The master PSC funding 
document will be attached to this contract and will form a part of the 
executed contract while also serving to amend the budget.
    2. Overtime (Unless specifically authorized in the Schedule of this 
contract, no overtime hours shall be allowed hereunder.)
    LC------
    3. Travel and Transportation (Ref. GP Clause 9). (Includes the value 
of TRs furnished by the Government, not payable to contractor).

a. United States--$------
b. International--$------
c. Cooperating and Third Country--$------, LC ------
    Subtotals Item 3--$------, LC ------

    4. Subsistence or Per Diem (Ref. GP Clause 9.)

a. United States--$------
b. International--$------
c. Cooperating and Third Country--$------, LC ------
    Subtotals Item 4--$------, LC ------

    5. Other Direct Costs.

a. Physical Examination (Ref. GP Clause 3)--$------, LC ------
b. Miscellaneous--$------, LC ------
    Subtotals Item 5--$------, LC ------

Total Estimated Costs (Lines 1 thru 5) $------, LC ------

    F. Allowable costs compensation and all terms and benefits of 
employment under this contract will be in accordance with the Mission's 
local compensation plan. Salary

[[Page 139]]

changes and personnel-related contract actions will be made by 
processing the same forms as used in making such changes and actions for 
direct-hire FSN employees. When issued by the Contracting Officer, the 
forms utilized will be attached to the contract and will form a part of 
the contract terms and conditions.
    Any adjustment or increase in the compensation granted to direct-
hire employees under the local compensation plan will be allowed for in 
PSCs subject to the availability of funds. Such an adjustment will be 
effected by a mass pay adjustment notice from the Contracting Officer, 
which will be attached to the contract and form a part of the executed 
contract.
    At the end of each year of satisfactory service, PSC contractors 
will be eligible to receive an increase equal to one annual step 
increase as shown in the local compensation plan, pending availability 
for funds. Such increase will be effected by the execution of an SF-
1126, Payroll Change Slip which is to be attached to each contract and 
each action forms a part of the official contract file.
    Under the Joint Inventive Awards Program for FSNs, monetary awards 
will be made pending availability of funds. The increase for the award 
will be effected by the execution of an SF-1126 which will be attached 
to the contract and will form a part of the contract. In no event may 
costs under the contract exceed the total amount obligated.
    Meritorious Step Increases for FSN PSCs may be authorized provided 
the granting of such increase is the general practice locally.
    The master PSC funding document may not exceed the term or estimated 
total cost of this contract. Notwithstanding that additional funds are 
obligated under this contract through the issuance and attachment of the 
master PSC funding document, all other contract terms and conditions 
remain in full effect.

           Article IV--Costs Reimbursable and Logistic Support

    A. General.
    The contractor shall be provided with or reimbursed in local 
currency

------ for the following: [Complete]

    B. Method of Payment of Local Currency Costs.
    Those contract costs which are specified as local currency costs in 
Paragraph A, above, if not furnished in kind by the cooperating 
government or the Mission, shall be paid to the contractor in a manner 
adapted to the local situation, based on vouchers submitted in 
accordance with GP Clause 10. The documentation for such costs shall be 
on such forms and in such manner as the Mission Director shall 
prescribe.
    C. Cooperating or U.S. Government Furnished Equipment and 
Facilities.
    [List any logistical support, equipment, and facilities to be 
provided by the cooperating government or the U.S. Government at no cost 
to this contract; e.g., office space, supplies, equipment, secretarial 
support, etc., and the conditions, if any, for use of such equipment.]

                     Article V--Precontract Expenses

    No expense incurred before signing of this contract will be 
reimbursed unless such expense was incurred after receipt and acceptance 
of a precontract expense letter issued to the contractor by the 
Contracting Officer, and then only in accordance with the provisions and 
limitations contained in such letter. The rights and obligations created 
by such letter shall be considered as merged into this contract.

                     Article VI--Additional Clauses

    [Additional Schedule Clauses may be added to meet specific 
requirements of an individual contract.]

    12. General Provisions for a Contract With a Cooperating Country 
     National or With a Third Country National for Personal Services

    To be used to contract with cooperating country nationals or third 
country nationals for personal services.

Index of Clauses
1. Definitions
2. Compliance with Applicable Laws and Regulations
3. Physical Fitness
4. Security
5. Workweek
6. Leave and Holidays
7. Social Security and Cooperating Country Taxes
8. Insurance
9. Travel and Transportation
10. Payment
11. Contractor-Mission Relationships
12. Termination
13. Allowances
14. Advance of Dollar Funds
15. Conversion of U.S. Dollars to Local Currency
16. Post of Assignment Privileges
17. Release of Information
18. Notices
19. Incentive Awards
20. Training
21. Medical Evacuation Services

1. Definitions (JUL 1993)
    [For use in both Cooperating Country National (CCN) and Third 
Country National (TCN) Contracts].
    (a) USAID shall mean the U.S. Agency for International Development.
    (b) Administrator shall mean the Administrator or the Deputy 
Administrator of the U.S. Agency for International Development.

[[Page 140]]

    (c) Contracting Officer shall mean a person with the authority to 
enter into, administer, and/or terminate contracts and make related 
determinations and findings. The term includes certain authorized 
representatives of the Contracting Officer acting within the limits of 
their authority as delegated by the Contracting Officer.
    (d) Cooperating Country National shall mean the individual engaged 
to serve in the Cooperating Country under this contract.
    (e) Cooperating Country shall mean the foreign country in or for 
which services are to be rendered hereunder.
    (f) Cooperating Government shall mean the government of the 
Cooperating Country.
    (g) Government shall mean the United States Government.
    (h) Economy Class air travel shall mean a class of air travel which 
is less than business or first class.
    (i) Local Currency shall mean the currency of the cooperating 
country.
    (j) Mission shall mean the United States USAID Mission to, or 
principal USAID office in, the Cooperating Country.
    (k) Mission Director shall mean the principal officer in the Mission 
in the Cooperating Country, or his/her designated representative.
    (l) Third Country National shall mean an individual (i) who is 
neither a citizen of the United States nor of the country to which 
assigned for duty, and (ii) who is eligible for return travel to the 
TCN's home country or country from which recruited at U.S. Government 
expenses, and (iii) who is on a limited assignment for a specific period 
of time.
    (m) Tour of Duty shall mean the contractor's period of service under 
this contract and shall include, authorized leave and international 
travel.
    (n) Traveler shall mean the contractor or dependents of the 
contractor who are in authorized travel status.
    (o) Dependents shall mean spouse and children (including step and 
adopted children who are unmarried and under 21 years of age or, 
regardless of age, are incapable of self-support.

2. Compliance With Laws and Regulations Applicable Abroad (JUL 1993)

    [For use in both CCN and TCN Contracts].
    (a) Conformity to Laws and Regulations of the Cooperating Country.
    Contractor agrees that, while in the cooperating country, he/she as 
well as authorized dependents will abide by all applicable laws and 
regulations of the cooperating country and political subdivisions 
thereof.
    (b) Purchase or Sale of Personal Property or Automobiles. [For TCNs 
Only].
    To the extent permitted by the cooperating country, the purchase, 
sale, import, or export of personal property or automobiles in the 
cooperating country by the contractor shall be subject to the same 
limitations and prohibitions which apply to Mission U.S.-citizen direct-
hire employees.
    (c) Code of Conduct. The contractor shall, during his/her tour of 
duty under this contract, be considered an ``employee'' (or if his/her 
tour of duty is for less than 130 days, a ``special Government 
employee'') for the purposes of, and shall be subject to, the provisions 
of 18 U.S.C. 202(a) the AID General Notice entitled Employee Review of 
the New Standards of Conduct. The contractor acknowledges receipt of a 
copy of these documents by his/her acceptance of this contract.

    3. Physical Fitness (JUL 1993)

    [For use in both CCN and TCN Contracts].
    (a) Cooperating Country National. The contractor shall be examined 
by a licensed doctor of medicine, and shall obtain a statement of 
medical opinion that, in the doctor's opinion, the contractor is 
physically qualified to engage in the type of activity for which he/she 
is to be employed under the contract. A copy of the medical opinion 
shall be provided to the Contracting Officer before the contractor 
starts work under the contract. The contractor shall be reimbursed for 
the cost of the physical examination based on the rates prevailing 
locally for such examinations in accordance with Mission practice.
    (b) Third Country National. (i) The contractor shall obtain a 
physical examination for himself/herself and any authorized dependents 
by a licensed doctor of medicine. The contractor shall obtain a 
statement of medical opinion from the doctor that, in the doctor's 
opinion, the contractor is physically qualified to engage in the type of 
activity for which he/she is to be employed under the contract, and the 
contractor's authorized dependents are physically qualified to reside in 
the cooperating country. A copy of that medical opinion shall be 
provided to the Contracting Officer prior to the dependents' departure 
for the cooperating country.
    (ii) The contractor shall be reimbursed for the cost of the physical 
examinations mentioned above as follows: (1) based on those rates 
prevailing locally for such examinations in accordance with Mission 
practice or (2) if not done locally, not to exceed $100 per examination 
for the contractor's dependents of 12 years of age and over and not to 
exceed $40 per examination for contractor's dependents under 12 years of 
age. The contractor shall also be reimbursed for the cost of all 
immunizations normally authorized and extended to FSN employees.

4. Security (JUL 1993)

    [For use in both CCN and TCN Contracts].
    (a) The contractor is obligated to notify immediately the 
Contracting Officer if the contractor is arrested or charged with any 
offense during the term of this contract.

[[Page 141]]

    (b) The contractor shall not normally have access to classified or 
administratively controlled information and shall take conscious steps 
to avoid receiving or learning of such information. However, based on 
contractor's need to know, Mission may authorize access to 
administratively controlled information for performance of assigned 
scope of work on a case-by-case basis in accordance with USAID Handbook 
6 or superseding ADS Chapters.
    (c) The contractor agrees to submit immediately to the Mission 
Director or Contracting Officer a complete detailed report, marked 
``Privileged Information'', of any information which the contractor may 
have concerning existing or threatened espionage, sabotage, or 
subversive activity against the United States of America or the USAID 
Mission or the cooperating country government.

5. Workweek (OCT 1987)

    [For use in both CCN and TCN Contracts].
    The contractor's workweek shall not be less than 40 hours, unless 
otherwise provided in the Schedule, and shall coincide with the workweek 
for those employees of the Mission or the cooperating country agency 
must closely associated with the work of this contract. If approved in 
advance in writing, overtime worked by the contractor shall be paid in 
accordance with the procedures governing premium compensation applicable 
to direct-hire foreign service national employees. If the contract is 
for less than full time (40 hours weekly), the leave earned shall be 
prorated.

6. Leave and Holidays (OCT 1987)

    [For use in both CCN and TCN Contracts].
    (a) Vacation Leave. The contractor may accrue, accumulate, use and 
be paid for vacation leave in the same manner as such leave is accrued, 
accumulated, used and paid to foreign service national direct-hire 
employees of the Mission. No vacation leave shall be earned if the 
contract is for less than 90 days. Unused vacation leave may be carried 
over under an extension or renewal of the contract as long as it 
conforms to Mission policy and practice. With the approval of the 
Mission Director, and if the circumstances warrant, a contractor may be 
granted advance vacation leave in excess of that earned, but in no case 
shall a contractor be granted advance vacation leave in excess of that 
which he/she will earn over the life of the contract. The contractor 
agrees to reimburse USAID for leave used in excess of the amount earned 
during the contractor's assignment under the contract.
    (b) Sick Leave. The contractor may accrue, accumulate, and use sick 
leave in the same manner as such leave is accrued, accumulated and used 
by foreign service national direct-hire employees of the Mission. Unused 
sick leave may be carried over under an extension of the contract. The 
contractor will not be paid for sick leave earned but unused at the 
completion of this contract.
    (c) Leave Without Pay.  Leave without pay may be granted only with 
the written approval of the Contracting Officer or Mission Director.
    (d) Holidays. The contractor shall be entitled to all holidays 
granted by the Mission to direct-hire cooperating country national 
employees who are on comparable assignments.

7. Social Security and Cooperating Country Taxes (DEC 1986)

    [For use in both CCN and TCN Contracts].
    Funds for Social Security, retirement, pension, vacation or other 
cooperating country programs as required by local law shall be deducted 
and withheld in accordance with laws and regulations and rulings of the 
cooperating country or any agreement concerning such withholding entered 
into between the cooperating government and the United States 
Government.

8. Insurance (JUL 1993)

    [For use in both CCN and TCN Contracts].
    (a) Worker's Compensation Benefits.  The contractor shall be 
provided worker's compensation benefits under the Federal Employees 
Compensation Act.
    (b) Health and Life Insurance. The contractor shall be provided 
personal health and life insurance benefits on the same basis as they 
are granted to direct-hire CCNs and TCN employees at the post under the 
Post Compensation Plan.
    (c) Insurance on Private Automobiles--Contractor Responsibility [For 
use in TCN contracts]. If the contractor or dependents transport, or 
cause to be transported, any privately owned automobile(s) to the 
cooperating country, or any of them purchase an automobile within the 
cooperating country, the contractor agrees to ensure that all such 
automobile(s) during such ownership within the cooperating country will 
be covered by a paid-up insurance policy issued by a reliable company 
providing the following minimum coverages, or such other minimum 
coverages as may be set by the Mission Director, payable in U.S. dollars 
or its equivalent in the currency of the cooperating country: injury to 
persons, $10,000/$20,000; property damage, $5,000. The contractor 
further agrees to deliver, or cause to be delivered to the Mission 
Director, copies of the insurance policies required by this clause or 
satisfactory proof of the existence thereof, before such automobile(s) 
is operated within the cooperating country. The premium costs for such 
insurance shall not be a reimbursable cost under this contract.
    (d) Claims for Private Personal Property Losses [For use in TCN 
contracts]. The contractor shall be reimbursed for private personal 
property losses in accordance with USAID Handbook 23, ``Overseas 
Support'', Chapter 10, or superseding ADS Chapter.


[[Page 142]]


9. Travel and Transportation Expenses (JUL 1993)

    [For use in both CCN and TCN Contracts as appropriate].
    (a) General. The contractor will be reimbursed in currency 
consistent with the prevailing practice at post and at the rates 
established by the Mission Director for authorized travel in the 
cooperating country in connection with duties directly referable to work 
under this contract. In the absence of such established rates, the 
contractor shall be reimbursed for actual costs of authorized travel in 
the cooperating country if not provided by the cooperating government or 
the Mission in connection with duties directly referable to work 
hereunder, including travel allowances at rates prescribed by USAID 
Handbook 22, ``Foreign Service Travel Regulations'' or superseding ADS 
Chapters as from time to time amended. The Executive or Administrative 
Officer at the Mission may furnish Transportation Requests (TR's) for 
transportation authorized by this contract which is payable in local 
currency or is to originate outside the United States. When 
transportation is not provided by Government issued TR, the contractor 
shall procure the transportation, and the costs will be reimbursed. The 
following paragraphs provide specific guidance and limitations on 
particular items of cost.
    (b) International Travel. For travel to and from post of assignment 
the TCN contractor shall be reimbursed for travel costs and travel 
allowances from place of residence in the country of recruitment (or 
other location provided that the cost of such travel does not exceed the 
cost of the travel from the place of residence) to the post of duty in 
the cooperating country and return to place of residence in the country 
of recruitment (or other location provided that the cost of such travel 
does not exceed the cost of travel from the post of duty in the 
cooperating country to the contractor's residence) upon completion of 
services by the individual. Reimbursement for travel will be in 
accordance with USAID's established policies and procedures for its CCN 
and TCN direct-hire employees and the provisions of this contract, and 
will be limited to the cost of travel by the most direct and expeditious 
route. If the contract is for longer than one year and the contractor 
does not complete one full year at post of duty (except for reasons 
beyond his/her control), the cost of going to and from the post of duty 
for the contractor and his/her dependents are not reimbursable 
hereunder. If the contractor serves more than one year but less than the 
required service in the cooperating country (except for reasons beyond 
his/her control) costs of going to the post of duty are reimbursable 
hereunder but the cost of going from post of duty to the contractor's 
permanent, legal place of residence at the time he or she was employed 
for work under this contract are not reimbursable under this contract 
for the contractor and his/her dependents. When travel is by economy 
class accommodations, the contractor will be reimbursed for the cost of 
transporting up to 10 kilograms/22 pounds of accompanied personal 
baggage per traveler in addition to that regularly allowed with the 
economy ticket provided that the total number of pounds of baggage does 
not exceed that regularly allowed for first class travelers. Travel 
allowances for travelers shall not be in excess of the rates authorized 
in the Standardized Regulations (Government Civilians, Foreign Areas) 
hereinafter referred to as the Standardized Regulations--as from time to 
time amended, for not more than the travel time required by scheduled 
commercial air carrier using the most expeditious route. One stopover 
enroute for a period of not to exceed 24 hours is allowable when the 
traveler uses economy class accommodations for a trip of 14 hours or 
more of scheduled duration. Such stopover shall not be authorized when 
travel is by indirect route or is delayed for the convenience of the 
traveler. Per diem during such stopover shall be paid in accordance with 
the Federal Travel Regulations as from time to time amended.
    (c) Local Travel. Reimbursement for local travel in connection with 
duties directly referable to the contract shall not be in excess of the 
rates established by the Mission Director for the travel costs of 
travelers in the Cooperating Country. In the absence of such established 
rates the contractor shall be reimbursed for actual travel costs in the 
Cooperating Country by the Mission, including travel allowances at rates 
not in excess of those prescribed by the Standardized Regulations.
    (d) Indirect Travel for Personal Convenience of a TCN. When travel 
is performed by an indirect route for the personal convenience of the 
traveler, the allowable costs of such travel will be computed on the 
basis of the cost of allowable air fare via the direct usually traveled 
route. If such costs include fares for air or ocean travel by foreign 
flag carriers, approval for indirect travel by such foreign flag 
carriers must be obtained from the Contracting Officer or the Mission 
Director before such travel is undertaken, otherwise only that portion 
of travel accomplished by the United States-flag carriers will be 
reimbursable within the above limitation of allowable costs.
    (e) Limitation on Travel by TCN Dependents. Travel costs and 
allowances will be allowed for authorized dependents of the contractor 
and such costs shall be reimbursed for travel from place of abode in the 
country of recruitment to the assigned station in the Cooperating 
Country and return, only if the dependent remains in the Cooperating 
Country for

[[Page 143]]

at least 9 months or one-half of the required tour of duty of the 
contract, whichever is greater, except as otherwise authorized hereunder 
for education, medical, or emergency visitation travel. Dependents of 
the TCN contractor must return to the country of recruitment or home 
country within thirty days of the termination or completion of the 
contractor's employment, otherwise such travel will not be reimbursed 
under this contract.
    (f) Delays Enroute. The contractor may be granted reasonable delays 
enroute while in travel status when such delays are caused by events 
beyond the control of the contractor and are not due to circuitous 
routing. It is understood that if delay is caused by physical 
incapacitation, he/she shall be eligible for such sick leave as provided 
under the ``Leave and Holidays'' clause of this contract.
    (g) Travel by Privately Owned Automobile (POV). If travel by POV is 
authorized in the contract schedule or approved by the Contracting 
Officer, the contractor shall be reimbursed for the cost of travel 
performed in his/her POV at a rate not to exceed that authorized in the 
Federal Travel Regulations plus authorized per diem for the employee 
and, if the POV is being driven to or from the cooperating country as 
authorized under the contract, for each of the authorized dependents 
traveling in the POV, provided that the total cost of the mileage and 
per diem paid to all authorized travelers shall not exceed the total 
constructive cost of fare and normal per diem by all authorized 
travelers by surface common carrier or authorized air fare, whichever is 
less.
    (h) Emergency and Irregular Travel and Transportation. [For TCNs 
only]. Emergency transportation costs and travel allowances while 
enroute, as provided in this section, will be reimbursed not to exceed 
amounts authorized by the Foreign Service Travel Regulations for FSN 
direct-hire employees in like circumstances under the following 
conditions:
    (1) The costs of going from post of duty in the cooperating country 
to another approved location for the contractor and authorized 
dependents and returning to post of duty, subject to the prior written 
approval of the Mission Director, when such travel is necessary for one 
of the following reasons:
    (i) Need for medical care beyond that available within the area to 
which contractor is assigned.
    (ii) Serious effect on physical or mental health if residence is 
continued at assigned post of duty.
    (iii) Serious illness, injury, or death of a member of the 
contractor's immediate family or a dependent, including preparation and 
return of the remains of a deceased contractor or his/her dependents.
    (2) Emergency evacuation when ordered by the principal U.S. 
Diplomatic Officer in the cooperating country. Transportation and travel 
allowances at safe haven and the transportation of household effects and 
automobile or storage thereof when authorized by the Mission Director, 
shall be payable in accordance with established Government regulations.
    (3) The Mission Director may also authorize emergency or irregular 
travel and transportation in other situations when in his/her opinion 
the circumstances warrant such action. The authorization shall include 
the kind of leave to be used and appropriate restrictions as to time 
away from post, transportation of personal and household effects, etc.
    (i) Country of Recruitment Travel and Transportation. [For TCNs 
only]. The contractor shall be reimbursed for actual transportation 
costs and travel allowances in the country of recruitment as authorized 
in the Schedule or approved in advance by the Contracting Officer or the 
Mission Director. Transportation costs and travel allowances shall not 
be reimbursed in any amount greater than the cost of, and time required 
for, economy-class commercial-scheduled air travel by the most 
expeditious route except as otherwise provided in paragraph (h) above, 
unless economy air travel is not available and the contractor adequately 
documents this to the satisfaction of the Contracting Officer in 
documents submitted with the voucher.
    (j) Rest and Recuperation Travel. [For TCNs only].
    If approved in writing by the Mission Director, the contractor and 
his/her dependents shall be allowed rest and recuperation travel on the 
same basis as direct-hire TCN employees and their dependents at the post 
under the local compensation plan.
    (k) Transportation of Personal Effects (Excluding Automobiles and 
Household Goods). [For TCNs only].
    (1) General. Transportation costs will be paid on the same basis as 
for direct-hire employees at post serving the same length tour of duty, 
as authorized in the schedule. Transportation, including packing and 
crating costs, will be paid for shipping from contractor's residence in 
the country of recruitment or other location, as approved by the 
Contracting Officer (provided that the cost of transportation does not 
exceed the cost from the contractor's residence) to post of duty in the 
cooperating country and return to the country of recruitment or other 
location provided the cost of transportation of the personal effects of 
the contractor not to exceed the limitations in effect for such 
shipments for USAID direct-hire employees in accordance with the Foreign 
Service Travel Regulations in effect at the time shipment is made. These 
limitations may be obtained from the Contracting Officer. The cost of

[[Page 144]]

transporting household goods shall not exceed the cost of packing, 
crating, and transportation by surface common carrier.
    (2) Unaccompanied Baggage. Unaccompanied baggage is considered to be 
those personal belongings needed by the traveler immediately upon 
arrival of the contractor and dependents. To permit the arrival of 
effects to coincide with the arrival of the contractor and dependents, 
consideration should be given to advance shipments of unaccompanied 
baggage. The contractor will be reimbursed for costs of shipment of 
unaccompanied baggage (in addition to the weight allowance for household 
effects) not to exceed the limitations in effect for USAID direct-hire 
employees in accordance with the Foreign Service Travel Regulations in 
effect when shipment is made. These limitations are available from the 
Contracting Officer. This unaccompanied baggage may be shipped as air 
freight by the most direct route between authorized points of origin and 
destination regardless of the modes of travel used.
    (l) Reduced Rates on U.S.-Flag Carriers. Reduced rates on U.S.-flag 
carriers are in effect for shipments of household goods and personal 
effects of USAID contractors between certain locations. These reduced 
rates are available provided the shipper furnishes to the carrier at the 
time of the issuance of the Bill of Lading documentary evidence that the 
shipment is for the account of USAID. The Contracting Officer will, on 
request, furnish to the contractor current information concerning the 
availability of a reduced rate with respect to any proposed shipment. 
The contractor will not be reimbursed for shipments of household goods 
or personal effects in amounts in excess of the reduced rates which are 
available in accordance with the foregoing.
    (m) Transportation of things. [For TCNs Only]. Where U.S. flag 
vessels are not available, or their use would result in a significant 
delay, the contractor may obtain a release from the requirement to use 
U.S. flag vessels from the Transportation Division, Office of 
Acquisition and Assistance, U.S. Agency for International Development, 
Washington, DC 20523-1419, or the Mission Director, as appropriate, 
giving the basis for the request.
    (n) Repatriation Travel. [For TCNs Only]. Notwithstanding other 
provisions of this Clause 9, a TCN must return to the country of 
recruitment or to the TCN's home country within 30 days after 
termination or completion of employment or forfeit all right to 
reimbursement for repatriation travel. The return travel obligation 
[repatriation travel] assumed by the U.S. Government may have been the 
obligation of another employer in the area of assignment if the employee 
has been in substantially continuous employment which provided for the 
TCN's return to home country or country from which recruited.
    (o) Storage of household effects. [For TCNs Only]. The cost of 
storage charges (including packing, crating, and drayage costs) in the 
country of recruitment of household goods of regular employees will be 
permitted in lieu of transportation of all or any part of such goods to 
the Cooperating Country under paragraph (k) above provided that the 
total amount of effects shipped to the Cooperating Country or stored in 
the country of recruitment shall not exceed the amount authorized for 
USAID direct-hire employees under the Foreign Service Travel 
Regulations. These amounts are available from the Contracting Officer.

10. Payment (MAY 1997)

    [For use in both CCN and TCN Contracts].
    (a) Payment of compensation shall be based on written documentation 
supporting time and attendance which may be (1) maintained by the 
Mission in the same way as for direct-hire CCNs and TCNs or (2) the 
contractor may submit such written documentation in a form acceptable to 
Mission policy and practice as required for other personal services 
contractors and as directed by the Mission Controller or paying office. 
The documentation will also provide information required to be filed 
under cooperating country laws to permit withholding by USAID of funds, 
if required, as described in the clause of these General Provisions 
entitled Social Security and Cooperating Country Taxes.
    (b) Any other payments due under this contract shall be as 
prescribed by Mission policy for the type of payment being made.

11. Contractor-Mission Relationships (DEC 1986)

    [For use in both CCN and TCN Contracts].
    (a) The contractor acknowledges that this contract is an important 
part of the U.S. Foreign Assistance Program and agrees that his/her 
duties will be carried out in such a manner as to be fully commensurate 
with the responsibilities which this entails. Favorable relations 
between the Mission and the Cooperating Government as well as with the 
people of the cooperating country require that the contractor shall show 
respect for the conventions, customs, and institutions of the 
cooperating country and not become involved in any illegal political 
activities.
    (b) If the contractor's conduct is not in accordance with paragraph 
(a), the contract may be terminated pursuant to the General Provision of 
this contract, entitled ``Termination.'' If a TCN, the contractor 
recognizes the right of the U.S. Ambassador to direct his/her immediate 
removal from any country when, in the discretion of the Ambassador, the 
interests of the United States so require.
    (c) The Mission Director is the chief representative of USAID in the 
cooperating

[[Page 145]]

country. In this capacity, he/she is responsible for the total USAID 
Program in the cooperating country including certain administrative 
responsibilities set forth in this contract and for advising USAID 
regarding the performance of the work under the contract and its effect 
on the U.S. Foreign Assistance Program. The contractor will be 
responsible for performing his/her duties in accordance with the 
statement of duties called for by the contract. However, he/she shall be 
under the general policy guidance of the Mission Director and shall keep 
the Mission Director or his/her designated representative currently 
informed of the progress of the work under this contract.

12. Termination (NOV 1989)

    [For use in both CCN and TCN Contracts].
    (This is an approved deviation to be used in place of the clause 
specified in FAR 52.249-12.)
    (a) The Government may terminate performance of work under this 
contract in whole or, from time to time, in part:
    (1) For cause, which may be effected immediately after establishing 
the facts warranting the termination, by giving written notice and a 
statement of reasons to the contractor in the event (i) the contractor 
commits a breach or violation of any obligations herein contained, (ii) 
a fraud was committed in obtaining this contract, or (iii) the 
contractor is guilty (as determined by USAID) of misconduct in the 
cooperating country. Upon such a termination, the contractor's right to 
compensation shall cease when the period specified in such notice 
expires or the last day on which the contractor performs services 
hereunder, whichever is earlier. No costs of any kind incurred by the 
contractor after the date such notice is delivered shall be reimbursed 
hereunder except the cost of return transportation (not including travel 
allowances), if approved by the Contracting Officer. If any costs 
relating to the period subsequent to such date have been paid by USAID, 
the contractor shall promptly refund to USAID any such prepayment as 
directed by the Contracting Officer.
    (2) For the convenience of USAID, by giving not less than 15 
calendar days advance written notice to the contractor. Upon such a 
termination, contractor's right to compensation shall cease when the 
period specified in such notice expires except that the contractor shall 
be entitled to any accrued, unused vacation leave, return transportation 
costs and travel allowances and transportation of unaccompanied baggage 
costs at the rates specified in the contract and subject to the 
limitations which apply to authorized travel status.
    (3) For the convenience of USAID, when the contractor is unable to 
complete performance of his/her services under the contract by reason of 
sickness or physical or emotional incapacity based upon a certification 
of such circumstances by a duly qualified doctor of medicine approved by 
the Mission. The contract shall be deemed terminated upon delivery to 
the contractor of a termination notice. Upon such a termination, the 
contractor shall not be entitled to compensation except to the extent of 
any accrued, unused vacation leave, but shall be entitled to return 
transportation, travel allowances, and unaccompanied baggage costs at 
rates specified in the contract and subject to the limitations which 
apply to authorized travel status.
    (b) The contractor, with the written consent of the Contracting 
Officer, may terminate this contract upon at least 15 days' written 
notice to the Contracting Officer.

13. Allowances (DEC 1986)

    [For TCNs only].
    Allowances will be granted to the contractor and authorized 
dependents on the same basis as to direct-hire TCN employees at the post 
under the Post Compensation Plan. The allowances provided shall be paid 
to the contractor in the currency of the cooperating country or in 
accordance with the practice prevailing at the Mission.

14. Advance of Dollar Funds (DEC 1986)

    [For TCNs only].
    If requested by the contractor and authorized in writing by the 
Contracting Officer, USAID will arrange for an advance of funds to 
defray the initial cost of travel, travel allowances, authorized 
precontract expenses, and shipment of personal property. The advance 
shall be granted on the same basis as to an USAID U.S.-citizen direct-
hire employee in accordance with USAID Handbook 22, Chapter 4 or 
superseding ADS Chapters.

15. Conversion of U.S. Dollars to Local Currency (DEC 1986)

    [For TCNs only].
    Upon arrival in the cooperating country, and from time to time as 
appropriate, the contractor shall consult with the Mission Director or 
his/her authorized representative who shall provide, in writing, the 
policy the contractor shall follow in the conversion of one currency to 
another currency. This may include, but not be limited to, the 
conversion of said currency through the cognizant U.S. Disbursing 
Officer, or Mission Controller, as appropriate.

16. Post of Assignment Privileges (DEC 1986)

    [For TCNs only].
    Privileges such as the use of APO, PX's, commissaries and officer's 
clubs are established at posts abroad pursuant to agreements between the 
U.S. and host governments. These facilities are intended for and usually 
limited to U.S. citizen members of the official U.S. Mission including 
the Embassy, USAID, Peace Corps, U.S. Information Services and the 
Military. Normally, the

[[Page 146]]

agreements do not permit these facilities to be made available to non-
U.S. citizens if they are under contract to the United States 
Government. However, in those cases where the facilities are open to TCN 
contractor personnel, they may be used.

17. Release Of Information (DEC 1986)

    [For use in both CNN and TCN Contracts].
    All rights in data and reports shall become the property of the U.S. 
Government. All information gathered under this contract by the 
contractor and all reports and recommendations hereunder shall be 
treated as privileged information by the contractor and shall not, 
without the prior written approval of the Contracting Officer, be made 
available to any person, party, or government, other than USAID, except 
as otherwise expressly provided in this contract.

18. Notices (DEC 1986)

    [For use in both CNN and TCN Contracts].
    Any notice, given by any of the parties hereunder, shall be 
sufficient only if in writing and delivered in person or sent by 
telegraph, telegram, registered, or regular mail as follows:
    (a) TO USAID: To the Mission Director of the Mission in the 
Cooperating Country with a copy to the appropriate Contracting Officer.
    (b) TO THE CONTRACTOR: At his/her post of duty while in the 
Cooperating Country and at the contractor's address shown on the Cover 
Page of this contract or to such other address as either of such parties 
shall designate by notice given as herein required.
    Notices hereunder shall be effective when delivered in accordance 
with this clause or on the effective date of the notice, whichever is 
later.

19. Incentive Awards (DEC 1996)

    [For CNN and TCN Contracts].
    (a) All Cooperating Country National (CCN) Personal Services 
Contractors (PSCs) and Third Country Nationals (TCNs) of the Foreign 
Affairs Community are eligible for the Joint Embassy Incentive Awards 
Program. The program is administered by each post's (Embassy) Joint 
Country Awards Committee.
    (b) Meritorious Step Increases
    Meritorious step increases may be granted to CNNs and TCNs paid 
under the local compensation plan provided the granting of such 
increases is the general practice locally.

20. Training (JUL 1993)

    [For CNN and TCN Contracts].
    The contractor may be provided job related training to develop 
growth potential, expand capabilities and increase knowledge and skills. 
The training may be funded under the personal services contract.

21. Medical Evacuation (MEDEVAC) Services (JUL 2007)

    [For TCN Contracts Only].
    (a) The PSC must obtain MEDEVAC service coverage including coverage 
for authorized dependents while performing personal services abroad.
    (b) Exceptions. (1) A PSC and authorized dependents with a health 
insurance program that includes sufficient MEDEVAC coverage as approved 
by the Contracting Officer are not required to obtain MEDEVAC service 
coverage.
    (2) The Mission Director at the post of assignment may make a 
written determination to waive the requirement for such coverage. The 
determination must be based on findings that the quality of local 
medical services or other circumstances obviate the need for such 
coverage for PSCs and their dependents located at post.

                             13. FAR Clauses

    The following FAR Clauses are always to be used along with the 
General Provisions. They are required in full text.

1. Covenant Against Contingent Fees 52.203-5
2. Disputes 52.233-1 (Alternate 1)
3. Preference for U.S. Flag Air Carriers 52.247-63
    The following FAR Clauses are to be used along with the General 
Provisions, and when appropriate, be incorporated in each personal 
services contract by reference:

1. Anti-Kickback Procedures 52.203-7
2. Limitation on Payments to Influence Certain Federal Transactions 
52.203-12
3. Audit and Records--Negotiation 52.215-2
4. Privacy Act Notification 552.224-1
5. Privacy Act 52.224-2
6. Taxes--Foreign Cost Reimbursement Contracts 52.229-8
7. Interest 52.232-17
8. Limitation of Cost 52.232-20
9. Limitation of Funds 52.232-22
10. Assignment of Claims 52.232-23
11. Protection of Government Buildings, Equipment, and Vegetation 
52.237-2
12. Notice of Intent to Disallow Costs 52.242-1
13. Inspection 52.246-5
14. Limitation of Liability--Services 52.246-25

[62 FR 42929, Aug. 11, 1997, as amended at 72 FR 19670, Apr. 19, 2007]

[[Page 147]]



                CHAPTER 8--DEPARTMENT OF VETERANS AFFAIRS




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
801             Department of Veterans Affairs Acquisition 
                    Regulation System.......................         149
802             Definitions of words and terms..............         170
803             Improper business practices and personal 
                    conflicts of interest...................         171
804             Administrative matters......................         175
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
805             Publicizing contract actions................         176
806             Competition requirements....................         176
807             Acquisition planning........................         178
808             Required sources of supplies and services...         179
809             Contractor qualifications...................         180
810             Market research.............................         187
811             Describing agency needs.....................         187
812             Acquisition of commercial items.............         193
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
813             Simplified acquisition procedures...........         195
814             Sealed bidding..............................         196
815             Contracting by negotiation..................         201
816             Types of contracts..........................         203
817             Special contracting methods.................         204
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
819             Small business programs.....................         207
822             Application of labor laws to Government 
                    acquisitions............................         218
823

Environment, energy and water efficiency, renewable energy technologies, 
occupational safety, and drug-free workplace [Reserved]

824             Protection of privacy and freedom of 
                    information.............................         219
825             Foreign acquisition.........................         219

[[Page 148]]

826

Other socioeconomic programs [Reserved]

             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
828             Bonds and insurance.........................         223
829             Taxes.......................................         225
830

Cost accounting standards administration [Reserved]

831             Contract cost principles and procedures.....         226
832             Contract financing..........................         229
833             Protests, disputes, and appeals.............         234
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
836             Construction and architect-engineer 
                    contracts...............................         239
837             Service contracting.........................         244
839

Acquisition of information technology [Reserved]

841             Acquisition of utility services.............         246
                    SUBCHAPTER G--CONTRACT MANAGEMENT
842             Contract administration and audit services..         248
844

Subcontracting policies and procedures [Reserved]

846             Quality assurance...........................         249
847             Transportation..............................         253
849             Termination of contracts....................         254
                     SUBCHAPTER H--CLAUSES AND FORMS
852             Solicitation provisions and contract clauses         256
853             Forms.......................................         284
           SUBCHAPTER I--DEPARTMENT SUPPLEMENTARY REGULATIONS
870             Special procurement controls................         287
871             Loan guaranty and vocational rehabilitation 
                    and employment programs.................         288
872             [Reserved]

873             Simplified acquisition procedures for 
                    health-care resources...................         293

[[Page 149]]

                          SUBCHAPTER A_GENERAL

  PART 801_DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION SYSTEM

Sec.

Sec. 801.000 Scope of part.

               Subpart 801.1_Purpose, Authority, Issuance


Sec. 801.101 Purpose.

Sec. 801.103 Authority.

Sec. 801.104 Applicability.

Sec. 801.104-70 Exclusions.

Sec. 801.105 Issuance.

Sec. 801.105-2 Arrangement of regulations.

Sec. 801.106 OMB approval under the Paperwork Reduction Act.

                      Subpart 801.2_Administration


Sec. 801.201 Maintenance of the FAR.

Sec. 801.201-1 The two councils.

            Subpart 801.3_Department Acquisition Regulations


Sec. 801.304 Department control and compliance procedures.

              Subpart 801.4_Deviations From the FAR or VAAR


Sec. 801.403 Individual deviations.

Sec. 801.404 Class deviations.

      Subpart 801.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 801.601 General.

Sec. 801.602 Contracting officers.

Sec. 801.602-2 Responsibilities.

Sec. 801.602-3 Ratification of unauthorized commitments.

Sec. 801.602-70 General review requirements.

Sec. 801.602-71 Basic review requirements.

Sec. 801.602-72 Exceptions and additional review requirements.

Sec. 801.602-73 Review requirements for scarce medical specialist 
          contracts and contracts for health-care resources.

Sec. 801.602-74 Review requirements for an interagency agreement.

Sec. 801.602-75 Review requirements--OGC.

Sec. 801.602-76 Business clearance review.

Sec. 801.602-77 Processing solicitations and contract documents for 
          legal or technical review--general.

Sec. 801.602-78 Processing solicitations and contract documents for 
          legal or technical review--Veterans Health Administration 
          field facilities, Central Office (except Office of 
          Construction and Facilities Management), the National 
          Acquisition Center, and the Denver Acquisition and Logistics 
          Center.

Sec. 801.602-79 Processing solicitations and contract documents for 
          legal or technical review--Veterans Benefits Administration.

Sec. 801.602-80 Legal and technical review-Office of Construction and 
          Facilities Management and National Cemetery Administration.

Sec. 801.602-81 Documents required for business clearance reviews.

Sec. 801.602-82 Documents to submit for legal or technical review--
          general.

Sec. 801.602-83 Documents to submit for legal or technical review--
          contract modifications.

Sec. 801.602-84 Documents to submit for business clearance reviews.

Sec. 801.602-85 Results of review.

Sec. 801.603 Selection, appointment, and termination of appointment.

Sec. 801.603-1 General.

Sec. 801.603-70 Representatives of contracting officers.

Sec. 801.603-71 Representatives of contracting officers; receipt of 
          equipment, supplies, and nonpersonal services.

Sec. 801.670 Special and limited delegation.

Sec. 801.670-1 Issuing bills of lading.

Sec. 801.670-3 Medical, dental, and ancillary service.

Sec. 801.670-4 National Cemetery Administration.

Sec. 801.670-5 Letters of agreement.

Sec. 801.680 Contracting authority of the Inspector General.

Sec. 801.690 VA's COCP.

Sec. 801.690-1 Definitions.

Sec. 801.690-2 General.

Sec. 801.690-3 Responsibility under the COCP.

Sec. 801.690-4 Selection.

Sec. 801.690-5 Requirements for contracting authority.

Sec. 801.690-6 Appointment.

Sec. 801.690-7 Termination.

Sec. 801.690-8 Interim appointment provisions.

Sec. 801.690-9 Distribution of Certificates of Appointment.

Sec. 801.695 VA's Appointment of HCAs program.

Sec. 801.695-1 Policy.

Sec. 801.695-2 Procedures for appointment of HCAs.

Sec. 801.695-3 Authority of the HCA.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

[[Page 150]]



Sec. 801.000  Scope of part.

    This part sets out general Department of Veterans Affairs (VA) 
Acquisition Regulation (VAAR) policies, including information regarding 
the maintenance and administration of the VAAR, acquisition policies and 
practices, and procedures for deviation from the VAAR and the Federal 
Acquisition Regulation (FAR).

               Subpart 801.1_Purpose, Authority, Issuance



Sec. 801.101  Purpose.

    (a) VA established the VAAR to codify and publish uniform policies 
and procedures for VA's acquisition of supplies and services, including 
construction.
    (b) The VAAR implements and supplements the FAR.



Sec. 801.103  Authority.

    The Secretary issues the VAAR under the authority of 40 U.S.C. 
121(c), Title 48 of the Code of Federal Regulations (CFR) 1.301 through 
1.304, and other authorities as cited.



Sec. 801.104  Applicability.

    (a) Unless otherwise specified in this chapter or excepted by 
statute (i.e., expenditures of the VA Canteen Service) or other VA 
regulations, the FAR and VAAR apply to all VA acquisitions (including 
construction) made with appropriated funds. Supply Fund monies (38 
U.S.C. 8121) and General Post Funds (38 U.S.C. 8302) are appropriated 
funds.
    (b) Use the VAAR and the FAR together. The FAR applies to VA 
acquisitions except as provided in the VAAR.



Sec. 801.104-70  Exclusions.

    The FAR and VAAR do not apply to purchases and contracts that use 
General Post Funds if using the FAR and the VAAR would infringe upon a 
donor's right to specify the exact item to be purchased and/or the 
source of supply (38 U.S.C. 8303).



Sec. 801.105  Issuance.



Sec. 801.105-2  Arrangement of regulations.

    (a) General. The VAAR is divided into subchapters, parts (each of 
which covers a separate aspect of acquisition), subparts, sections, and 
subsections.
    (b) Numbering. (1) The numbering system permits the discrete 
identification of every VAAR paragraph. The digits to the left of the 
decimal point represent the part number. The numbers to the right of the 
decimal point and to the left of the dash represent, in order, the 
subpart (one or two digits), and the section (two digits). The number to 
the right of the dash represents the subsection. Subdivisions may be 
used at the section and subsection level to identify individual 
paragraphs.
    (2) Subdivisions below the section or subsection level consist of 
parenthetical alphanumerics using the following sequence: 
(a)(1)(i)(A)(1)(i).
    (c) References and citations. (1) Unless otherwise stated, cross-
references indicate parts, subparts, sections, subsections, paragraphs, 
subparagraphs, or subdivisions of this Chapter.
    (2) This chapter may be referred to as the ``Department of Veterans 
Affairs Acquisition Regulation'' or the ``VAAR''.
    (3) Using the VAAR coverage at 809.106-4(c) as a typical 
illustration, reference to the--
    (i) Part would be ``VAAR Part 809'' outside the VAAR and ``Part 
809'' within the VAAR.
    (ii) Subpart would be ``VAAR Subpart 809.1'' outside the VAAR and 
``Subpart 809.1'' within the VAAR.
    (iii) Section would be ``VAAR 809.106'' outside the VAAR and 
``809.106'' within the VAAR.
    (iv) Subsection would be ``VAAR 809.106-4'' outside the VAAR and 
``809.106-4'' within the VAAR.
    (v) Paragraph would be ``VAAR 809.106-4(c)'' outside the VAAR and 
``809.106-4(c)'' within the VAAR.
    (4) Citations of authority (e.g., statutes or Executive orders) in 
the VAAR shall follow the Federal Register form guides.



Sec. 801.106  OMB approval under the Paperwork Reduction Act.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521), the Office of Management and Budget (OMB) has approved the 
reporting or recordkeeping provisions that are included in the VAAR and 
has

[[Page 151]]

given VA the following approval numbers:

----------------------------------------------------------------------------------------------------------------
  48 CFR part or section where identified and     Current OMB     48 CFR part or section where      Current OMB
                   described                    control number      identified and described      control number
----------------------------------------------------------------------------------------------------------------
809.106-1.....................................       2900-0418  852.214-70......................       2900-0593
809.504(d)....................................       2900-0418  852.228-71......................       2900-0590
813...........................................       2900-0393  852.236-72......................       2900-0422
832.006-4.....................................       2900-0688  852.236-79......................       2900-0208
832.202-4.....................................       2900-0688  852.236-80 (Alt. I).............       2900-0422
836.606-71....................................       2900-0208  852.236-82 through 852.236-84...       2900-0422
852.207-70....................................       2900-0590  852.236-88......................       2900-0422
852.209-70....................................       2900-0418  852.236-89......................       2900-0622
852.211-70....................................       2900-0587  852.236-91......................       2900-0623
852.211-71....................................       2900-0588  852.237-7.......................       2900-0590
852.211-72....................................       2900-0586  852.270-3.......................       2900-0589
852.211-73....................................       2900-0585
----------------------------------------------------------------------------------------------------------------

                      Subpart 801.2_Administration



Sec. 801.201  Maintenance of the FAR.



Sec. 801.201-1  The two councils.

    Revisions to the FAR are prepared and issued through the coordinated 
action of two councils, the Defense Acquisition Regulations Council and 
the Civilian Agency Acquisition Council. A designee of the Office of 
Acquisition and Materiel Management will represent VA on the Civilian 
Agency Acquisition Council.

            Subpart 801.3_Department Acquisition Regulations



Sec. 801.304  Department control and compliance procedures.

    The Assistant Secretary for Management is designated as the 
Department's Chief Acquisition Officer. The Deputy Assistant Secretary 
(DAS) for Acquisition and Materiel Management is designated as the 
Department's Senior Procurement Executive (SPE). The Associate DAS for 
Acquisitions is designated as the Deputy Senior Procurement Executive 
(DSPE). The DSPE is responsible for amending the VAAR for compliance 
with FAR 1.304.

              Subpart 801.4_Deviations from the FAR or VAAR



Sec. 801.403  Individual deviations.

    (a) Authority to authorize individual deviations from the FAR and 
VAAR is delegated to the SPE and is further delegated to the DSPE.
    (b) When a contracting officer considers it necessary to deviate 
from the policies in the FAR or VAAR, the contracting officer, in 
accordance with Administration or staff office procedures, must submit a 
request through the HCA to the DSPE for authority to deviate.
    (c) The request to deviate must clearly state the circumstances 
warranting the deviation and the nature of the deviation.
    (d) The DSPE may authorize individual deviations from the FAR and 
VAAR when an individual deviation is in the best interest of the 
Government. When the DSPE authorizes a deviation, the contracting 
officer must file the authorization in the purchase order or contract 
file.



Sec. 801.404  Class deviations.

    Authority to authorize class deviations from the FAR and VAAR is 
delegated to the SPE and is further delegated to the DSPE. The DSPE may 
authorize class deviations from the FAR and VAAR when a class deviation 
is in the best interest of the Government. The DSPE must comply with the 
provisions of FAR 1.404 through the SPE.

      Subpart 801.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 801.601  General.

    (a) The HCA or the DSPE, within their authority, may appoint a 
contracting officer under FAR 1.603 and VA's Contracting Officer 
Certification Program (COCP).

[[Page 152]]

    (b) In addition, the HCA may delegate micro-purchase authority to VA 
employees under VA's purchase card program.
    (c) An individual may not commit the Government for purchases of 
supplies, equipment, or services unless the individual has received 
delegated contracting authority as a contracting officer or purchase 
card holder or as provided in 801.670. Individuals making such 
commitments or acting beyond the scope of their authority may be held 
financially liable.



Sec. 801.602  Contracting officers.

    (a) Except as otherwise provided by statute, VA regulations, the 
VAAR, or the FAR, the authority vested in the Secretary to do the 
following is delegated to the SPE and is further delegated from the SPE 
to the DSPE:
    (1) Execute, award, and administer contracts, purchase orders, and 
other agreements (including interagency agreements) for the expenditure 
of funds for construction and the acquisition of personal property and 
services (including architect-engineer services).
    (2) Issue bills of lading.
    (3) Sell personal property.
    (4) Enter into leases, sales agreements, and other transactions.
    (5) Prescribe and publish acquisition policies and procedures.
    (6) Establish clear lines of contracting authority.
    (7) Manage and enhance career development of the procurement work 
force.
    (8) Examine, in coordination with the Office of Federal Procurement 
Policy, the procurement system to determine specific areas where VA 
should establish and apply Government-wide performance standards, and to 
participate in developing Government-wide procurement policies, 
regulations, and standards.
    (9) Oversee the competition advocate program.
    (b) The DSPE may further delegate authority to execute, award, and 
administer contracts, purchase orders, and other agreements to other VA 
officials, such as HCAs and contracting officers, in accordance with the 
COCP.



Sec. 801.602-2  Responsibilities.

    In the administration of a contract, many problems can and do arise 
that make the advice and assistance of the Office of General Counsel 
(OGC) either desirable or necessary. The final decision as to the action 
to be taken, however, must be made by the contracting officer in each 
instance. To reduce to the absolute minimum the possibility of 
litigation resulting from his/her decision, the contracting officer 
shall submit the problem through channels in sufficient detail to the 
General Counsel for advice or assistance.



Sec. 801.602-3  Ratification of unauthorized commitments.

    (a) This section applies to unauthorized commitments, including any 
commitment made by a contracting officer that exceeds that contracting 
officer's contracting authority and unauthorized commitments made by 
individuals who lack contracting authority.
    (b) A contracting officer must not ratify unauthorized commitments 
made by other VA personnel or by another contracting officer who lacks 
authority without prior approval as specified in paragraphs (b)(1) 
through (b)(3) of this section. The specified approval authorities may 
not be re-delegated.
    (1) At field facilities, for supplies, services (except leases of 
real property), and construction, the approving authority for 
unauthorized commitments made by staff assigned to a field facility is 
the HCA.
    (2) For VA Central Office (VACO) organizations, for supplies, 
services (except leases of real property), and construction, the 
approving authorities for unauthorized commitments made by staff 
assigned to the Administrations are the respective chief financial 
officers of the Administrations concerned. The approving authority for 
unauthorized commitments made by staff assigned to any other 
organization within VACO is the Deputy Assistant Secretary for 
Acquisition and Materiel Management.
    (3) For unauthorized commitments for leasehold interest in real 
property, the approving authority is:
    (i) The Director, Office of Construction and Facilities Management, 
for unauthorized commitments for 1-5,000

[[Page 153]]

square feet of space or for 1-100 parking spaces costing less than 
$50,000 per annum.
    (ii) The Under Secretary for Health for unauthorized commitments for 
5,001-20,000 square feet of space or for more than 100 parking spaces 
costing less than $100,000 per annum.
    (iii) The Deputy Secretary for 20,001 square feet of space and above 
or for more than 100 parking spaces costing more than $100,000 per 
annum.
    (c) The process for contracting officer requests for ratification 
will be as follows:
    (1) The individual who made the unauthorized commitment will furnish 
the contracting officer with all records and documents concerning the 
commitment and a complete written statement of facts that includes the 
following:
    (i) Why the procurement office was not used.
    (ii) Why the proposed contractor was selected.
    (iii) Other sources that were considered.
    (iv) A description of work to be performed or products to be 
furnished.
    (v) The estimated or agreed contract price.
    (vi) A citation of the appropriation available.
    (vii) A statement of whether the contractor has commenced 
performance.
    (viii) The name of the individual responsible for the unauthorized 
commitment.
    (2) The contracting officer will review the file and forward it to 
the approving authority specified in paragraph (b) of this section with 
any comments or information that the approving authority should consider 
in evaluating the request for ratification. If the approving authority 
determines that a legal review would be desirable, the approving 
authority will coordinate the request for ratification with OGC or the 
Regional Counsel, as appropriate.
    (3) If the approving authority authorizes the ratification, the 
approving authority will return the file to the contracting officer for 
issuance of a purchase order or contract, as appropriate.
    (d) If an otherwise proper contract award exceeds the limits of the 
contracting officer's delegated authority, the ratifying contracting 
officer must comply with the above requirements and the approving 
authority must inform the HCA. The HCA will take action to preclude 
future instances of such awards.



Sec. 801.602-70  General review requirements.

    (a) Contracting officers shall ensure that any document listed under 
801.602-71 through 801.602-76 that is submitted for technical or legal 
review is submitted through or by an official at least one level above 
the contracting officer.
    (b) Before opening a bid, awarding a contract, or signing a 
contract-related document as specified in 801.602-71 through 801.602-76, 
the contracting officer shall ensure that the appropriate VA official, 
including appropriate staff of the Acquisition Resources Service 
regional or VA Central Office, has reviewed and concurred with the 
document.
    (c) Before signing a contract for a Veterans Benefits Administration 
field facility for any guidance center or vocational rehabilitation 
service with an anticipated expenditure of $100,000 or more, the 
contracting officer shall ensure that the Director, Vocational 
Rehabilitation and Employment Service, has reviewed and approved the 
solicitation or proposed contract.
    (d) When the following items are for the management, sale, or lease 
of properties acquired by VA after liquidation of a guaranteed, direct, 
acquired, or vendee loan, the review requirements specified in 801.602-
71 through 801.602-76 do not apply:
    (1) Agreements.
    (2) Licenses.
    (3) Easements.
    (4) Deeds.
    (e) If there is insufficient time for the legal review required in 
801.602-75(a)(3), the contracting officer (except contracting officers 
in the Office of Construction and Facilities Management) must at least 
obtain verbal concurrence from Acquisition Resources Service staff 
before issuing a change order where:
    (1) The change order (unilateral agreement) has an anticipated value 
of $100,000 or more; or

[[Page 154]]

    (2) The change order is for a time extension of 60 days or more.
    (f) Unless otherwise stated, all dollar values in 801.602-71 through 
801.602-76 are expressed in total dollars involved in the acquisition 
action.
    (1) The contracting officer may not consider the positive and 
negative status of the figures in determining the total dollar values 
involved.
    (2) An acquisition of $550,000 with a trade-in credit of $70,000 
would be valued at $620,000 for legal or technical review purposes 
rather than the net amount of $480,000. An Energy Savings Performance 
Contract requiring payment from savings of $10,000,000 to the contractor 
over the life of the contract would be valued at $10,000,000, despite 
the fact that there is no immediate cost to VA and no payment if there 
are no savings.
    (g) By separate notice, the DSPE may require technical review of any 
contract-related materials, regardless of dollar value.
    (h) Except as set forth in 801.602-73 and 801.602-75, at its 
discretion, the Office of Acquisition and Materiel Management may 
request OGC review.
    (i) The requirements of this section or sections 801.602-71 through 
801.602-76 do not apply to contracts awarded by or on behalf of the VA 
Office of Inspector General.
    (j) Contracting officers and purchase card holders must ensure 
compliance with separate guidance on information technology (IT) 
tracking and approval prior to processing requests for acquisitions of 
IT and telecommunications software, equipment, and/or services, 
regardless of dollar value.



Sec. 801.602-71  Basic review requirements.

    Contracting officers must obtain technical review from Acquisition 
Resources Service staff of the documents set forth in column one of 
Table 801.602-71 that have anticipated award values equal to or greater 
than the value in column two.

                            Table 801.602-71
------------------------------------------------------------------------
                                             Anticipated contract award
                 Document                              value
------------------------------------------------------------------------
(a) Supply or service solicitations or     $500,000 or more.
 quotations (except as provided in
 801.602-72 through 801.602-75) (includes
 indefinite quantity, option year, and
 multi-year solicitations or quotations
 where the contracting officer reasonably
 expects expenditures of $500,000 or
 more, inclusive of options).
(b) Supply or service solicitations or     $750,000 or more.
 quotations where a consolidated
 acquisition activity is performing
 acquisitions for three or more
 physically separated VA medical centers
 (excluding outpatient clinics).
(c) Fixed price, sealed bid construction   $1 million or more.
 solicitations, other than 8(a)
 construction solicitations.
(d) 8(a) construction solicitations and    $500,000 or more.
 task orders.
(e) Request for Proposal (negotiated)      $500,000 or more.
 construction solicitations and task
 orders.
(f) Proposed task/delivery orders and      $500,000 or more.
 blanket purchase agreements (includes
 orders under Federal Supply Schedule
 contracts).
(g) Proposed cost-reimbursement,           $100,000 or more.
 incentive, time-and-materials, and labor-
 hour contracts (see 816.102(b)).
(h) Utility service agreements...........  $50,000 or more.
(i) Solicitations for advisory and         $100,000 or more.
 assistance services (see 837.2).
(j) Proposed letter contracts and ensuing  $25,000.
 formal contracts.
------------------------------------------------------------------------



Sec. 801.602-72  Exceptions and additional review requirements.

    (a) In addition to the general review requirements in 801.602-71, 
contracting officers must obtain technical reviews from Acquisition 
Resources Service staff of any proposed agreement that is unique, novel, 
or unusual.
    (b) Contracting officers must obtain technical reviews from 
Acquisition Resources Service staff of the following:
    (1) Documents relating to bonds (see FAR 28.102-1 and 28.203 through 
28.203-5) as follows:
    (i) An irrevocable letter of credit.
    (ii) A tripartite escrow agreement.
    (iii) An individual surety bond. (Note that the FAR at 28.203(f) 
also requires legal review of the documents pledging the assets of an 
individual surety.)
    (2) Proposed novation and change-of-name agreements (see FAR Subpart 
42.12).
    (3) Solicitations or proposed contracts containing an economic price

[[Page 155]]

adjustment clause (other than a pre-approved VA clause) based on a cost 
index of material or labor (e.g., the urban consumer price index (CPI-U) 
(see FAR 16.203-4(d)) or where one of the economic price adjustment 
clauses specified in FAR 16.203-4 are used.
    (4) Proposed multi-year contracts where the cancellation ceiling 
exceeds 20 percent of the contract amount, regardless of the dollar 
value of the proposed contract (see 817.105-1(b)).
    (5) Proposed solicitations where the contract term total of the 
basic and option periods may exceed 5 years, regardless of the dollar 
value of the proposed acquisition (see 817.204).
    (6) Proposed membership agreements in a group purchasing 
organization.
    (7) A proposed termination settlement or determination of amounts 
due the contractor under a terminated contract that involves the 
expenditure of $100,000 or more of Government funds. Acquisition 
Resources Service staff shall obtain legal review (see 849.111-70).
    (8) Consignment agreements with an anticipated expenditure of 
$250,000 or more per year (except for a consignment agreement 
established under, and provided for in, a Federal Supply Schedule 
contract).
    (c) Contracting officers, including purchase card holders, must 
obtain technical and legal review of all proposed contracts with hotels 
or similar facilities for conferences or similar functions (e.g., 
training, meetings) where VA's commitment, expenditure, and liability 
(combined) exceed $25,000. This dollar figure is based on the 
combination of all direct costs to VA under the contract (e.g., 
conference rooms, audio-visual charges, refreshments, catering) and all 
potential liability (e.g., room guarantee liability, cancellation 
costs). Even if there is no direct cost to VA, if the proposed contract 
includes a guarantee on room usage or a cancellation fee that could 
potentially exceed $25,000, the proposed contract requires legal and 
technical review. Signing a contract committing VA to hold a conference 
at a particular hotel is a procurement and procurement laws and 
regulations must be followed.



Sec. 801.602-73  Review requirements for scarce medical specialist 
          contracts and contracts for health-care resources.

    For contracts to be awarded under the authority of either 38 U.S.C. 
7409 or 38 U.S.C. 8153, contracting officers must obtain technical and 
legal reviews from the Medical Sharing Office, OGC, and Acquisition 
Resources Service staff of the following documents:
    (a) Each competitive solicitation, quotation, proposed contract, or 
agreement with an anticipated contract award value of $1,500,000 or 
more, inclusive of options.
    (b) Each noncompetitive solicitation, quotation, proposed contract, 
or agreement with an anticipated contract award value of $500,000 or 
more, inclusive of options.



Sec. 801.602-74  Review requirements for an interagency agreement.

    Contracting officers or other staff must obtain technical review 
from Acquisition Operations Service staff of the following documents:
    (a) Each proposed VA Central Office interagency agreement with 
another Federal agency to be awarded under authority of the Economy Act, 
regardless of dollar value. For VA Central Office, only the DSPE or 
designee may sign an interagency agreement.
    (b) Each proposed VA field facility interagency agreement with 
another Federal agency awarded under authority of the Economy Act 
involving an anticipated expenditure of VA funds of $250,000 or more. A 
VA field facility contracting officer or a contracting officer at the VA 
National Acquisition Center or the Denver Acquisition and Logistics 
Center may sign an interagency agreement if the dollar threshold is 
within the contracting officer's warrant limit.



Sec. 801.602-75  Review requirements--OGC.

    (a) Contracting officers must obtain legal review or concurrence 
from OGC for the following categories of proposed contractual actions.
    (1) Each contract termination, final decision, cure letter, or 
``show cause'' notice proposed under any contract where the total value 
of the contract is

[[Page 156]]

$100,000 or more. A contracting officer may not sign or release a 
document subject to this provision until OGC has concurred.
    (2) Each dispute or claim from a contractor involving a potential 
total dollar value of $100,000 or more. A contracting officer may not 
sign or release a document subject to this provision until OGC has 
concurred.
    (3) Each proposed contract modification, including any proposed 
modification to a supply or service contract, where the total value of 
the modification is $100,000 or more (e.g., a modification for a $60,000 
increase and a $50,000 decrease equals $110,000). Contract modifications 
issued only to exercise contract options are exempt from this review 
requirement.
    (4) Each proposed contract modification granting a time extension of 
more than 60 days. The Director, Acquisition Resources Service, may 
waive the pre-approval requirement under this paragraph for an 
individual facility when the Director determines that the facility has 
obtained appropriate ``consideration'' for past time extensions and the 
extensions were otherwise appropriately granted.
    (5) Each proposed modification increasing the value of a letter 
contract, regardless of dollar value.
    (6) Each proposed contract modification for which the contractor 
takes exception to the accord and satisfaction language specified by VA. 
The contracting officer may not execute any proposed contract 
modification under this requirement until the contracting officer 
receives OGC's concurrence in the proposed language.
    (7) An assignment of claims (see FAR Subpart 32.8).
    (8) Each change or revision to a FAR or VAAR provision or clause or 
an internal VA-approved clause (e.g., architect/engineer ``SP'' clauses) 
not specifically authorized by the regulations.
    (9) Each change or revision to a prescribed VA contract form.
    (10) A proposed utility construction or connection contract with an 
anticipated contract award value of $50,000 or more.
    (11) Each proposed novation and change-of-name agreement (see 
842.1203).
    (b) For an action specified in paragraph (a)(1) or (2) of this 
section, OGC may comment or concur in writing or by telephone.
    (c) When a Central Office contracting activity requests legal 
assistance, the contracting officer will brief OGC on the facts and 
points of issue to facilitate prompt resolution.
    (d) For each solicitation or contract awarded and administered by a 
Central Office contracting activity, that contracting activity will ask 
OGC to participate in conferences where legal problems or modifications 
to contract provisions may be considered and in meetings attended by 
legal representatives of private parties or other Government agencies. 
The contracting activity will request assigned procurement counsel 
participation in drafting correspondence involving significant 
controversial or sensitive contractual matters.
    (e) OGC will prepare any response to the Government Accountability 
Office (GAO) on GAO bid protests. (See 833.104).



Sec. 801.602-76  Business clearance review.

    (a) A business clearance review is a technical review of all 
solicitation and contract award or modification documents immediately 
prior to contract award or modification over the specified dollar 
threshold.
    (b) All VA contracting officers must obtain a business clearance 
review prior to award of any contract, task or delivery order, or 
blanket purchase agreement or execution of any contract modification 
with a value of $5 million or more or prior to award of any lease with a 
value of $300,000 or more per year.
    (c) The dollar threshold in this paragraph is based on the total 
dollar value of all awards expected under a single solicitation, not the 
value of each individual award under a solicitation. For example, a 
solicitation for home oxygen for a Veterans Integrated Service Network 
(VISN) might result in multiple awards, each of which has a value of 
less than $5 million. If the total of all awards under that solicitation 
will exceed $5 million, the contracting officer must obtain a business 
clearance

[[Page 157]]

review of the entire package, including all proposed individual awards.



Sec. 801.602-77  Processing solicitations and contract documents for 
          legal or technical review--general.

    (a) Under 801.602-70 through 801.602-76, before taking contract 
action, a contracting officer must ensure that any required legal or 
technical review or concurrence is complete. Contracting officers shall 
not award or sign contracts, task or delivery orders, blanket purchase 
agreements, or contract modifications prior to receipt of the final 
legal and technical review. Should the contracting officer disagree with 
the advice provided, the contracting officer shall document in the 
contract file the reasons therefore and provide a copy of that document 
to the reviewing Office of Acquisition and Materiel Management office. 
The contracting officer must fully implement any accepted review 
comments as follows:
    (1) Before opening the bid or proposal for a competitively awarded 
contract.
    (2) Before executing contract documents for a contract modification 
or noncompetitive contract award.
    (b) The contracting officer must advise potential bidders or 
offerors of changes made to the solicitation by issuing an amendment. 
The contracting officer must give bidders and offerors sufficient time 
for evaluation before the bid or proposal opens.



Sec. 801.602-78  Processing solicitations and contract documents for 
          legal or technical review--Veterans Health Administration 
          field facilities, Central Office (except Office of 
          Construction and Facilities Management), the National 
          Acquisition Center, and the Denver Acquisition and Logistics 
          Center.

    (a) If legal or technical review is required, the documents listed 
in Table 801.602-78 must be forwarded for review and approval as shown 
therein.

                            Table 801.602-78
------------------------------------------------------------------------
            Documents              Person forwarding      Forward to
------------------------------------------------------------------------
(1) Proposed solicitations,       One level above     Appropriate
 quotations, contract-related      the contracting     Acquisition
 documents, and agreements         officer.            Resources Service
 specified in Table 801.602.71                         central or
 and in 801.602-72.                                    regional office.
(2) Scarce medical specialist     One level above     Director, Enhanced
 and health-care resource          the contracting     Sharing Program
 solicitations, quotations, and    officer.            (10FL), VACO.
 proposed contracts (i.e.,
 contracts to be awarded under
 the authority of 38 U.S.C. 7409
 or 8153) specified in 801.602-
 73.
(3) Interagency agreements        Approving           DSPE, Acquisition
 specified in 801.602-74.          official,           Operations
                                   contracting         Service.
                                   officer.
(4) Proposed contract             Contracting         OGC.
 modifications, proposed           officer.
 contract modifications for
 which the contractor takes
 exception to the accord and
 satisfaction language VA
 specifies, assignment of
 claims, changes to clauses, and
 proposed utility connection
 agreements specified in 801.602-
 75(a)(3) through (a)(7) and in
 801.602-75(a)(9) and (a)(10).
(5) Proposed contract             Contracting         Regional Office of
 terminations, final decisions,    officer.            the General
 cure letters, show cause                              Counsel.
 notices, disputes, and claims
 specified in 801.602-75(a)(1)
 and (a)(2).
------------------------------------------------------------------------

    (b) The director of the Acquisition Resources Service office 
conducting the technical review has authority to determine whether to 
forward documents for legal review.
    (c) When the contractor takes exception to the accord and 
satisfaction language VA specifies in a proposed contract modification, 
the contracting officer must not sign the modification until OGC concurs 
with the language proposed by the contractor.
    (d) The contracting officer either must fax or send via overnight 
mail or e-mail all of the relevant documents on proposed contract 
terminations, final decisions, cure letters, show cause notices, 
disputes, and claims specified in 801.602-75(a)(1) and (a)(2). OGC will 
provide concurrence or comments either in writing or by telephone. The 
contracting officer must not sign or release a document to the 
contractor until OGC concurs.

[[Page 158]]

    (e) For any VA contract form subject to legal review under 801.602-
75(a)(8), the contracting officer must process the change or revision in 
accordance with VA Manual MP-1, Part II, Chapter 4 and any supplements 
to it (http://www.va.gov/publ/direc/benefits/mp1p2ch4.htm).



Sec. 801.602-79  Processing solicitations and contract documents for 
          legal or technical review--Veterans Benefits Administration.

    (a) Contracting officer must ensure that proposed solicitations, 
quotations, contract-related documents, and agreements listed in Table 
801.602-71 are reviewed by the Office of Resource Management prior to 
document execution. The Office of Resource Management must request legal 
review of all these documents.
    (b) Contracting officer must ensure that proposed solicitations or 
agreements for guidance center and vocational rehabilitation services 
are reviewed by the Director, Vocational Rehabilitation and Employment 
Service, if there is an anticipated expenditure of $100,000 or more.



Sec. 801.602-80  Legal and technical review-Office of Construction and 
          Facilities Management and National Cemetery Administration.

    An Office of Construction and Facilities Management or National 
Cemetery Administration (Construction Support Division) contracting 
officer shall submit all A/E contracts, and all construction contracts, 
time extensions, and modifications, directly to Office of General 
Counsel (OGC) for review.



Sec. 801.602-81  Documents required for business clearance reviews.

    When a bid or offer, proposed contract modification, or proposed 
lease requires a business clearance review under 801.602-76, the 
contracting officer must forward the required documents (see 801.602-84) 
and the following information to the appropriate Acquisition Resources 
Service central or regional office. Office of Construction and 
Facilities Management and National Cemetery Administration (Construction 
Support Division) contracting officers shall forward the documents to 
OGC (025):
    (a) The date on which award is anticipated.
    (b) Results or efforts made to determine whether the contractor is 
responsible under FAR Subpart 9.4.
    (c) A determination of price reasonableness.
    (d) An explanation (e.g., the source selection decision as specified 
in FAR 15.308) if the contracting officer proposes an award to a 
contractor other than the low responsible bidder or offeror.



Sec. 801.602-82  Documents to submit for legal or technical review--
          general.

    Table 801.602-82 specifies the documents that must be submitted when 
a legal or technical review is required.

                            Table 801.602-82
------------------------------------------------------------------------
  Action or document subject to review         Documents to submit
------------------------------------------------------------------------
(a) Proposed construction contract.....  One copy of each solicitation
                                          document, excluding drawings.
                                          Submit not later than the date
                                          on which the contracting
                                          officer furnishes the
                                          documents to prospective
                                          bidders.
(b) Proposed solicitation or contract    One copy of the solicitation or
 for scarce medical specialist services   proposed contract and
 or health-care resources.                documents required under VA
                                          Manual M-1, Part 1, Chapter
                                          34.
(c) All other proposed solicitations,    One copy of each document to be
 contracts, and agreements.               used in the contract
                                          solicitation or award, and any
                                          other document that supports
                                          the proposed procurement
                                          action. Submit not later than
                                          the date on which the
                                          contracting officer furnishes
                                          the documents to prospective
                                          bidders.
------------------------------------------------------------------------



Sec. 801.602-83  Documents to submit for legal or technical review--
          contract modifications.

    (a) The documents specified in this section related to proposed 
contract modifications must be submitted to Acquisition Resources 
Service for review under one or more of the following conditions:

[[Page 159]]

    (1) When the total modification value is $100,000 or more.
    (2) When the modification is for a time extension of 60 days or 
more.
    (3) Where the contractor takes exception to VA's accord and 
satisfaction language.
    (b) The contracting officer must submit the following documents for 
review:
    (1) A draft of the proposed modification prepared on SF 30, 
Amendment of Solicitation/Modification of Contract, specifying the exact 
language proposed and describing any change in work, time, or cost.
    (2) A statement describing the need for the changed work with any 
back-up documentation, including a copy of the general statement of work 
in the original contract and any existing contract language that will be 
modified.
    (3) A statement addressing whether the proposed modification is 
within the original scope of the contract and specifically addressing 
the facts considered in reaching the conclusion.
    (4) A statement analyzing what necessitated the modification (e.g., 
a design error, technical changes, or medical center requirements).
    (5) The contracting officer's technical representative's (COTR) 
technical evaluation of the proposed change.
    (6) A memorandum from the appropriate office indicating that funds 
are available or a statement concerning the actions that must be taken 
to secure the required funds.
    (7) The names and telephone numbers of the contracting officer and 
COTR.
    (8) Costing information including the following:
    (i) The contractor's cost proposal in the format required by the 
contract.
    (ii) The COTR's independent cost evaluation.
    (iii) The architect/engineer's independent cost evaluation, if 
applicable and available.
    (iv) The contracting officer's Price Negotiation Memorandum under 
FAR 15.406-3.
    (v) Any other relevant costing information, such as independent 
market research, that VA used or will use as negotiation criteria.
    (c) For a proposed modification to an architect/engineer contract, 
the contracting officer must submit for review each document specified 
in paragraph (b) of this section and the following additional documents.
    (1) A listing of the fees awarded in the original contract and 
previous modifications.
    (2) For a working drawing contract, a statement regarding the actual 
or estimated cost of the original construction and any estimated change 
to the overall project cost as a result of the proposed modification.
    (d) For a modification to a construction contract or, where 
applicable, to an architect/engineer contract, the contracting officer 
must submit for review a copy of the COTR's mark-up of any drawing that 
delineates the proposed changed work, including a copy of any pertinent 
technical specifications. When there is a proposed modification 
involving numerous changes to drawings and specifications for a VA 
Central Office project, the drawings and specifications must be 
available for review in the Office of the Project Director in VA Central 
Office.



Sec. 801.602-84  Documents to submit for business clearance reviews.

    A contracting officer must submit to Acquisition Resources Service 
(Office of Construction and Facilities Management and National Cemetery 
Administration contracting officers shall forward the documents to OGC 
(025)) for review copies of the following documents when a business 
clearance review is required in accordance with 801.602-76:
    (a) The request for contract action, including a justification of 
need (i.e., the using service purchase request).
    (b) The solicitation.
    (c) The abstract of the subject bid or offer.
    (d) Any applicable Price Negotiation Memorandum.
    (e) A statement of the contracting officer's rationale for award.
    (f) Any applicable justification and approval under FAR 6.303 and 
6.304.
    (g) Documents relevant to determining whether the contractor is 
responsible, including:

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    (1) Verification that the vendor is not suspended, debarred, or on 
the Department of Health and Human Services Exclusionary List;
    (2) Verification that the vendor has filed any required VETS 100 
report (not required if the acquisition is for a commercial item); and
    (3) For acquisitions exceeding $10 million, the Equal Employment 
Opportunity Clearance.
    (h) Any applicable approved subcontracting plan.
    (i) Documents relevant to price reasonableness (i.e., all documents 
used to support the contracting officer's determination of price 
reasonableness).



Sec. 801.602-85  Results of review.

    (a) When the review is complete, the reviewing office will advise 
the appropriate Central Office activity or contracting officer that the 
proposal was approved as submitted or provide them with recommended 
changes. If the Central Office activity is notified, the Central Office 
activity will forward the information to the contracting officer.
    (b) When changes are recommended by technical or legal review staff, 
if the contracting officer concurs, the contracting officer must take 
immediate action to amend the document. If the contracting officer does 
not concur, the contracting officer must discuss the recommended changes 
with the technical reviewer or the attorney involved and document in the 
contract file the reasons why the contracting officer is not following 
the reviewer's recommendations.
    (c) Acquisition Resources Service and OGC will complete reviews as 
expeditiously as possible, with due regard for procurement actions that 
require an unusually short period for completing the procurement.



Sec. 801.603  Selection, appointment, and termination of appointment.



Sec. 801.603-1  General.

    VAAR 801.690 through 801.690-9 and 801.670 establish the policy and 
procedures for selecting, appointing, and terminating a contracting 
officer.



Sec. 801.603-70  Representatives of contracting officers.

    (a) In carrying out the responsibilities of FAR 1.602-2, the 
contracting officer may designate another Government employee as COTR to 
perform the functions in this section and 801.603-71.
    (1) Except as indicated in 801.603-71, a designation under this 
section must be in writing, must define the scope and limitation of the 
representative's authority, and must be addressed to the COTR with a 
copy forwarded to the contractor.
    (2) The COTR may not re-delegate authority received under this 
paragraph.
    (3) The contracting officer may not authorize a representative to 
make any commitment or change that will affect the price, quantity, 
quality, or delivery terms of a contract.
    (4) A contracting officer acting within his or her warranted 
contracting authority must authorize any change to a contract.
    (b) A contracting officer may authorize his or her technical 
representative to do the following:
    (1) Furnish technical guidance and advice or generally supervise the 
work performed under the contract.
    (2) Take any action authorized in the contract, such as issuing a 
delivery order, rejecting an unsatisfactory item, ordering a replacement 
of an unsatisfactory item (materials or services) or declaring a 
contractor in default on specific delivery orders.
    (i) Except for a contract for blood, the contracting officer may 
delegate this authority only to other Government contracting officers 
under centralized indefinite delivery type contracts and the contract 
will so state.
    (ii) A centralized contract for blood must state that a contracting 
officer at an ordering office may designate representatives and 
alternate representatives to place a delivery order subject to the same 
restrictions in paragraph (b)(3) of this section.
    (3) Place an oral or other informal delivery order for items such 
as, but not limited to, bread, milk, and blood against a local 
indefinite delivery type contract for which there is a blanket purchase 
arrangement and for which funds have been obligated.

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    (c) In the administration of research and development contracts, any 
representative appointed under this section must be acceptable to the 
contracting officer and the head of the organization concerned.
    (d) When the contracting officer intends to designate a 
representative under this section for a particular solicitation or 
contract, the contracting officer must include the clause in 852.270-1, 
Representatives of contracting officers, in the solicitation and 
contract.



Sec. 801.603-71  Representatives of contracting officers; receipt of 
          equipment, supplies, and nonpersonal services.

    (a) Without prior notification to the contractor or vendor, the 
contracting officer may designate other competent personnel, i.e., 
COTRs, to represent him or her to receive and inspect supplies, 
equipment and services at a VA facility. The COTRs may perform duties, 
as specified by the contracting officer, such as, but not limited to, 
the following:
    (1) Inspect and certify compliance with the quality and quantity 
requirements of the purchase order or contract.
    (2) Inspect supplies and equipment for condition and quantity and 
accept supplies, equipment, and services, based on quality inspection 
made by another authorized representative.
    (b) The Director, Library Services, VA Central Office, and the 
Chief, Library Service, at a field facility may act as representatives 
of the contracting officer to receive, inspect and accept library books, 
newspapers, and periodicals. Purchase documents will specify that 
delivery will be made directly to the library.



Sec. 801.670  Special and limited delegation.

    The authority vested in the Secretary to execute, award, and 
administer a contract, purchase order, or other agreement for the 
expenditure of funds to acquire the specific services set forth in 
801.670-1 through 801.670-4 is delegated to the SPE. The SPE further 
delegates this authority to the DSPE and to employees appointed or 
designated to the positions specified in those sections.



Sec. 801.670-1  Issuing bills of lading.

    The authority to issue bills of lading previously contained in this 
section is rescinded. Except for individual small package shipments 
(e.g., United Parcel Service, Federal Express, or United States Postal 
Service small package shipments), no VA employee may issue a bill of 
lading or otherwise procure transportation services for goods unless the 
employee has been delegated authority to do so as a warranted 
contracting officer under the VA Contracting Officer Certification 
Program (ref. 801.690). All transportation services for goods, other 
than for small package shipments, require a bill of lading. Except for 
individual small package shipments, individuals with only micro-purchase 
authority may not issue bills of lading or otherwise procure 
transportation services. The dollar value of the bill of lading issued 
or transportation services acquired must not exceed the delegated 
authority of the contracting officer. Candidates for appointment as 
transportation contracting officers whose delegated authority will be 
limited to the acquisition of transportation services for goods only 
shall comply with the Education, Experience, and Training requirements, 
if any, in Part 102-117 of title 41 Code of Federal Regulations, the 
Federal Management Regulation, rather than the requirements in 801.690.



Sec. 801.670-3  Medical, dental, and ancillary service.

    (a) When medical, dental, and ancillary services under $10,000 per 
authorization are not available from an existing contract or agreement, 
the following VA officials at VA medical facilities may authorize these 
services:
    (1) The Chief of Staff and the physician assigned the responsibility 
for the ambulatory care function.
    (2) Chief, Medical Administration Service, or the person designated 
by the facility director to perform medical administration functions.
    (b) Forms specified in Part 853 shall be used for ordering services 
under this paragraph from existing contracts.

[[Page 162]]

    (c) The officials named in paragraph (a) of this section may 
designate one or more of their subordinates to exercise the authority in 
paragraph (a) of this section.
    (d) A designation under this section must be in writing and 
specifically set forth the scope and limitations of the designee's 
authority.



Sec. 801.670-4  National Cemetery Administration.

    The Director of Logistics Management Service, the Centralized 
Contracting Division, and the Construction Support Division are 
authorized to procure supplies, equipment and non-personal services 
(including construction) for National Cemetery Administration (NCA) 
field facilities and other NCA offices when there is an emergency during 
which the servicing supply organization cannot be used.



Sec. 801.670-5  Letters of agreement.

    (a) Letters of agreement shall not be used. The authority previously 
contained in this section is rescinded.
    (b) The VA Office of Inspector General may issue contracts for 
commercial items, including services, using a letter format (see FAR 
12.204(a)), provided billing information and required clauses are 
included in the contract. If the dollar value of the acquisition will 
exceed the simplified acquisition threshold, this is a deviation from 
the requirement to use Standard Form 1449 at FAR 12.204(a).



Sec. 801.680  Contracting authority of the Inspector General.

    (a) Under section 6(a) of Public Law 95-452 (October 12, 1978), the 
Inspector General may do the following:
    (1) Contract or arrange for audits, studies, analyses, and other 
services with public agencies and with private persons.
    (2) Make payments necessary to carry out the provisions of the Act, 
to the extent and in amounts provided in advance by appropriations acts.
    (b) In exercising the special authority provided in paragraph (a) of 
this section, the Inspector General may ask the servicing head of the 
contracting activity for assistance in developing appropriate contract 
or agreement documents.
    (c) The FAR applies to contracts made under paragraph (a) of this 
section. Such contracts also are subject to provisions of the VAAR that 
implement and supplement the FAR on matters other than those stemming 
from or related to delegations of the Secretary's contracting authority. 
(For example, management controls and approvals specified in subpart 
837.2 will not apply to contract actions under the contract authority of 
the Inspector General.)



Sec. 801.690  VA's COCP.



Sec. 801.690-1  Definitions.

    Accredited college or university means a college or university that 
has been accredited by an accrediting agency recognized by the U.S. 
Department of Education (see http://www.ed.gov/admins/finaid/accred/
index.html) or accredited by a foreign government.
    ACEP means the Acquisition Continuing Education Program, a program 
to provide VA's acquisition workforce with classroom knowledge to 
further develop their acquisition skills. The program supports VA 
personnel in the GS 1102 contracting series, other contracting officers 
(regardless of General Schedule series), contracting officers' technical 
representatives, and contracting officers' representatives to ensure 
that they meet the continuing education requirements mandated by OFPP 
Policy Letter No. 05-01, Developing and Managing the Acquisition 
Workforce, dated April 15, 2005 (see http://www.whitehouse.gov/omb/
procurement/policy--letters/05-01--041505.html) and the OFPP Memorandum 
dated January 20, 2006, titled The Federal Acquisition Certification in 
Contracting Program (see http://www.whitehouse.gov/omb/procurement/acq--
wk/fac--contracting--program.pdf).
    ACM means the Acquisition Career Manager, who is the Associate 
Deputy Assistant Secretary for Acquisitions.
    Acquisition Workforce means those VA employees who are classified 
as: GS 1102 contract specialists; GS 1105 purchasing agents; contracting 
officers warranted above the micro-purchase

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threshold; program and project managers and other significant 
acquisition-related positions as otherwise identified by the VA Chief 
Acquisition Officer; contracting officers' technical representatives; 
and contracting officers' representatives. The acquisition workforce may 
also include a limited number of employees that perform significant 
acquisition-related responsibilities, (e.g., employees in the GS-345, 
GS-346, GS-801, GS-1101, GS-1106, GS-1170, GS-2001, GS-2003, and GS-2005 
job series and select program officials).
    Appointment means the delegation of authority to any VA employee to 
enter into, administer, or terminate contracts and to make related 
determinations and findings.
    ATCD means the Acquisition Training and Career Development Division.
    Certificate of Appointment as Contracting Officer is a signed 
certificate on Standard Form 1402 used for the written appointment of 
contracting officers that states the scope, limitation, and term of the 
contracting officer's authority.
    CLP means continuous learning point, as provided in OFPP Policy 
Letter 05-01. One CLP is generally equivalent to one hour of classroom 
training.
    COCB means the Contracting Officers Certification Board, a group of 
VA officials, listed at 801.690-3(c), who evaluate and recommend to the 
DSPE individuals for delegation of contracting authority as Level II 
warrant or Level III warrant (Senior Limited or Unlimited) contracting 
officers.
    COCP means the Contracting Officers Certification Program, VA's 
program established for the selection, appointment, and termination of 
appointment of contracting officers.
    COQS means the Contracting Officer Qualification Statement, a 
document completed by a candidate for a position as contracting officer 
that accompanies the request for contracting authority. The certified 
statement includes information on experience, education, training, and 
pertinent contracting authority information. The COQS is accompanied by 
supporting documentation such as training certificates, copies of prior 
and current warrants, college transcripts, and other relevant 
information.
    Federal Acquisition Certification (see OFPP Policy Letter 05-01, 
paragraph 8) means a certification program developed by the Federal 
Acquisition Institute and OFPP that generally reflects a Government-wide 
standard for education, training, and experience leading to the 
fulfillment of core competencies in acquisition-related disciplines.
    Selection means the appointment of an employee as a contracting 
officer. The selection process shall consider the complexity and dollar 
value of the assigned work, the candidate's experience, training, 
education, business acumen, judgment, character, reputation, and 
knowledge of acquisition policies, rules and regulations.
    Skills Currency means the level of knowledge and abilities that a 
Level I warrant or higher level warrant contracting officer attains as 
the result of participating in a minimum of 80 CLPs of continuing 
education or training every two years. The training is intended to 
ensure that the employee maintains current acquisition knowledge and 
skills, as mandated by OFPP Policy Letter No. 05-01 and the OFPP 
Memorandum dated January 20, 2006, titled The Federal Acquisition 
Certification in Contracting Program.
    Termination means the revocation or rescission of an appointment as 
contracting officer.



Sec. 801.690-2  General.

    (a) The VA COCP applies to all VA programs except for the 
appointment of contracting officers under the Inspector General Act 
(Pub. L. 95-452) and for contracting officers designated in sections 
801.670 through 801.670-5. The COCP also applies to VA officials granted 
authority to enter into sales agreements (see separate guidance under 
VA's Directives Management System).
    (b) A Certificate of Appointment is not required for a contracting 
officer designated in 801.670 who exercises special and limited 
delegations of authority.
    (c) Warrant levels are synonymous with the Federal Acquisition 
Certification in Contracting Program certification levels specified in 
the OFPP Memorandum dated January 20, 2006,

[[Page 164]]

titled ``The Federal Acquisition Certification in Contracting Program.'' 
The COCP is based on the following levels and types of authority:
    (1) Level I warrant. Authority for expenditures at or below the 
simplified acquisition threshold (see FAR 2.101) for open market 
contracts, blanket purchase agreements, basic ordering agreements, and 
delivery/task orders against established contracts (except Federal 
Supply Schedule (FSS) contracts), within the specified geographical 
limits of the contracting officer's warrant. For FSS contracts, Level I 
warrant authority includes authority for expenditures up to the maximum 
order threshold of the FSS contract, within the specified geographical 
limits of the contracting officer's warrant. This level was formally 
titled ``Basic'' and any current Basic Level warrant need not be 
reissued solely to change the title.
    (2) Level II warrant. Authority for expenditures at or below 
$5,000,000 or as stated on Standard Form 1402 for open market contracts, 
blanket purchase agreements, basic ordering agreements, and delivery/
task orders against established contracts, within the specified 
geographic limits of the contracting officer's warrant. This level was 
formally titled ``Intermediate'' and any current Intermediate Level 
warrant need not be reissued solely to change the title.
    (3) Level III (Senior Limited) warrant. Authority for expenditures 
at or below the dollar threshold and within the geographical limits 
specified on the contracting officer's warrant, Standard Form 1402. This 
level was formally titled ``Senior Limited'' and any current Senior 
Limited Level warrant need not be reissued solely to change the title.
    (4) Level III (Senior Unlimited) warrant. Authority granted to VA's 
contracting officers in contracting activities (e.g., the VA National 
Acquisition Center, Hines, IL, and Acquisition Operations Service, VA 
Central Office, Washington, DC) that are charged with meeting 
Department-wide acquisition needs of VA and its customers. The authority 
is for expenditures at any dollar level without geographical 
restriction. This level was formally titled ``Senior Unlimited'' and any 
current Senior Unlimited Level warrant need not be reissued solely to 
change the title.
    (5) Multi-VISN. Authority at the Level II warrant and Level III 
(Senior Limited) warrant levels, granted by the DSPE, that permits 
procurement consolidations among Veterans Health Administration VISNs, 
Veterans Benefits Administration Area Offices, and other Government 
agencies that exist outside the contracting officer's normally assigned 
geographical area of appointed authority. Multi-VISN authority is 
generally granted to contracting officers for procurement-specific 
requirements or to contracting officers who are members of groups or 
consortiums established for regional contracting initiatives.
    (d) Micro-purchase Level. Micro-purchase Level authority, not to 
exceed the micro-purchase threshold (currently $3,000) ($2,500 for 
acquisition of services subject to the Service Contract Act, and $2,000 
for acquisition of construction subject to the Davis Bacon Act) (see FAR 
2.101), is separately addressed under VA's purchase card program. Under 
that program, the HCA may delegate authority to a VA employee as a 
purchase card holder through the issuance of VA Form 0242.



Sec. 801.690-3  Responsibilities under the COCP.

    (a) DSPE. The DSPE is responsible for the following:
    (1) Administering and overseeing the COCP;
    (2) Appointing and terminating Level II warrant and Level III 
(Senior Limited and Unlimited) warrant contracting officers;
    (3) Establishing and developing additional agency-specific training; 
and
    (4) Developing and implementing policy, procedures, and guidance for 
VA's acquisition program.
    (b) The Chief, Acquisition Program Management Division. The Chief, 
Acquisition Program Management Division, serves as the Executive 
Secretary to the COCB and is responsible for the following:
    (1) Coordinating requests for contracting authority with the COCB;

[[Page 165]]

    (2) Proceeding accordingly with appropriate action to carry out the 
decisions of the DSPE and the COCB;
    (3) Maintaining individual records on the appointment and 
termination of appointment of contracting officers. Records on 
contracting officers include HCA certifications and qualification 
statements, Certificates of Appointment, and other supporting 
documentation used to grant authority; and
    (4) Ensuring appropriate and timely disposition of records through 
the Office of Acquisition and Materiel Management's Records Control 
Officer.
    (c) The COCB. (1) The Director, Acquisition Resources Service, will 
chair the COCB.
    (2) COCB membership consists of:
    (i) The Chief, Acquisition Program Management Division; and
    (ii) The Chief, Acquisition Training and Career Development Division 
(ATCD).
    (d) HCAs. HCAs are responsible for the following:
    (1) Implementing and maintaining an effective and efficient program 
for the procurement of personal property and nonpersonal services 
required by the activity to which the HCA is assigned;
    (2) Establishing adequate controls to ensure compliance with 
applicable laws and regulations;
    (3) Appointing or terminating the appointment of contracting 
officers at the Micro-purchase Level and Level I warrant level within 
their assigned activity;
    (4) Establishing procedures and maintaining records for the 
appointment and termination of appointment of purchase card holders at 
the Micro-purchase Level and Level I warrant contracting officers. 
Records maintained on contracting officers shall include the contracting 
authority, certification and qualification statements;
    (5) Recommending to the DSPE the appointment or termination of 
appointment of contracting officers at the Level II warrant and Level 
III (Senior Limited or Unlimited) warrant levels of authority, 
certifying the candidate's qualifications, and justifying the 
organizational need;
    (6) Ensuring that all GS 1102 contract specialists and other 
contracting officers meet the minimum core training and continuing 
education requirements; and
    (7) Certifying that the assigned acquisition workforce meets the 
minimum training, education, and skills currency requirements prescribed 
by OFPP and the DSPE.
    (e) VA Acquisition Workforce. All employees identified as members of 
VA's acquisition workforce (see 801.690-1) are responsible for 
maintaining records that include certificates of acquisition training, 
continuing education, college transcripts, work experience, and other 
supporting documentation needed to substantiate successful completion of 
all warrant requirements. These employees shall enroll in the 
Acquisition Career Management Information System (ACMIS), the data 
system that serves as the repository of required information on VA's 
acquisition workforce.



Sec. 801.690-4  Selection.

    (a) The HCA may appoint Level I warrant contracting officers or 
submit written requests to the DSPE for appointment of Level II warrant 
or Level III (Senior Limited or Unlimited) warrant contracting officers. 
A VA official one level above the HCA may submit a written request to 
the DSPE for the appointment of an HCA as a contracting officer.
    (b) Appointment can only be requested in those circumstances where 
it can be demonstrated that a valid organizational need exists. In 
making this assessment and justification, the HCA will consider the 
complexity of the work, volume of actions, organizational structure, and 
human resource management actions and forecasts, such as rates of 
retirement, reassignment, and retention.
    (c) The request shall consist of the following:
    (1) Justification for requesting contracting authority to be 
granted;
    (2) Certification that the candidate's experience and training meet 
the established minimum qualifications for the requested contracting 
authority;
    (3) Certification that the candidate has a satisfactory-or-above 
performance rating;
    (4) Certification that the candidate maintains high standards of 
conduct

[[Page 166]]

and avoids apparent or actual conflicts of interest, and
    (5) Certification that the candidate has appropriate working 
knowledge of the FAR, VAAR, and other applicable laws, regulations, 
policies and procedures.
    (d) The accompanied COQS shall include the following information:
    (1) Candidate's name, position title, series, grade, and location;
    (2) Candidate's relevant acquisition or business-related experience 
that reflects the required number of years of progressive work 
assignments leading to broader technical abilities;
    (3) Education background, including number of acquisition or 
business-related college credits;
    (4) List of core training requirements or equivalent courses that 
have been successfully completed;
    (5) List of continuing education requirements successfully completed 
within the last two years;
    (6) List of current and prior warrant authorities, limitations, and 
information on termination and cause for termination;
    (7) List of other acquisition related activities or memberships;
    (8) Certification that the statement is accurate and complete to the 
best of the candidate's knowledge; and
    (9) Attached copies of acquisition or business-related training 
certificates, course certificates, and diplomas, transcripts, or degrees 
from accredited colleges or universities.



Sec. 801.690-5  Requirements for contracting authority.

    (a) Effective January 1, 2007, no individual, regardless of job 
series, may be issued a new contracting officer warrant above the micro-
purchase threshold unless the individual meets the requirements for 
Federal Acquisition Certification (Certification) for the applicable 
Level I, II, or III warrant level as specified in OFPP Policy Letter 05-
01 and the OFPP Memorandum dated January 20, 2006, titled ``the Federal 
Acquisition Certification in Contracting Program.'' A new contracting 
officer warrant is defined in OFPP Policy Letter 05-01 as a warrant 
issued for the first time at a department or agency. For contracting 
officers warranted before January 1, 2007, certification will not be 
required to retain their existing warrants, but will be required before 
higher level warrants can be issued. Certification includes minimum 
requirements for education, training, and experience. A candidate for a 
warrant must have at least a satisfactory-or-above performance rating 
during the most recent performance period.
    (b) For contracting officer warrants issued prior to January 1, 
2007, the minimum requirements for qualifying as a contracting officer 
previously specified in VA regulation and other internal VA guidance 
shall apply.
    (c) Multi-VISN. The HCA shall obtain written or e-mail concurrence 
from the HCAs of the other affected VISNs or Area Offices when 
requesting Multi-VISN contracting authority.
    (d) Training. (1) Contracting officers and non-warranted contract 
specialists shall complete the required coursework and on-the-job 
training needed to possess the established competencies listed in OFPP's 
Federal Acquisition Institute Contract Specialist Training Blueprints 
(http://www.fai.gov/policies/contract.htm).
    (2) The Chief, ATCD, oversees the ATP.
    (3) Training course equivalency will be determined and approved by 
the Chief, ATCD. Candidates should contact the Chief, ATCD, for an 
equivalency determination and must furnish any information or evidence 
necessary to support the request. Appeals of decisions may be made to 
the VA ACM and the decisions of the ACM shall be final.
    (e) Skills Currency. (1) Contracting officers and non-warranted 
contract specialists who have completed the core training requirements 
shall obtain a minimum of 80 CLPs of continuing education or training 
every two fiscal years to stay abreast of current acquisition knowledge 
and skills as mandated by OFPP. The HCA (for Level I warrant contracting 
officers) and the Chief, ATCD (for Level II warrant and Level III 
warrant contracting officers), shall make written determinations every 
October 1 for each warranted contracting officer on whether the required 
CLPs, as specified in OFPP guidance, were completed during the two prior 
fiscal years. The HCA shall

[[Page 167]]

assign CLP values to training taken by Level I warrant contracting 
officers for training that does not have pre-assigned CLP or continuing 
education unit (CEU) values assigned to the training by the provider. 
The Chief, ATCD, shall assign CLP values to training taken by Level II 
warrant and Level III warrant contracting officers for training that 
does not have pre-assigned CLP or CEU values assigned to the training by 
the provider. Values shall be assigned based on guidance provided by 
OFPP and the combined efforts of the Federal Acquisition Institute and 
the Defense Acquisition University. Questions regarding the CLP or CEU 
values assigned to training shall be resolved by the ACM.
    (2) The Chief, ATCD, is responsible for the management of the ACEP, 
the program that assists contracting officers and contract specialists 
to meet the training requirements.
    (3) An expiring warrant will not be re-issued if the contracting 
officer has not met the continuing education or training requirement.
    (f) Education. (1) The 24 business-related college credits shall be 
in any combination of the following fields of study at an accredited 
college or university: accounting, business, finance, law, contracts, 
purchasing, economics, industrial management, marketing, quantitative 
methods, or organization and management.
    (2) The HCA will make the final determination whether a course is 
accepted as business-related for the purpose of granting Level I warrant 
authority. The Chief, ATCD, will make the final determination whether a 
course is accepted as business-related for the purpose of granting Level 
II warrant or Level III warrant contracting authority.
    (3) American Council on Education (ACE) credits are not considered 
as college credits until they are converted and included on a transcript 
from an accredited college or university.
    (g) Grandfather provision for the education requirement. (1) VA 
contracting officers, regardless of grade level, who currently hold 
Level I, Level II, or Level III (Senior Limited or Unlimited) warrants 
are considered as having met the Experience, Education, and Training 
requirements for their respective warrant levels. This includes 
transfers or laterals to other VA contracting activities with similar 
geographical restrictions. Contracting officers who are promoted up to a 
GS-12 can maintain their current warrant level authority.
    (2) This Grandfather provision does not cover new VA employees, 
current VA employees who are not warranted, former VA employees who held 
contracting authority at their previous Federal Government agencies or 
VA positions, or VA employees whose warrants have been rescinded or have 
expired. VA contracting officers who are promoted to GS 13-and-above 
will no longer be covered by this Grandfather provision and, therefore, 
must meet the current Experience, Education, and Training requirements 
for the specific warrant authority that they currently hold or to which 
they wish to be appointed. Contracting officers requesting a higher 
level warrant (e.g., from Level I warrant to Level II warrant or from 
Level III (Senior Limited) warrant to Level III (Senior Unlimited) 
warrant) must also meet the current Experience, Education, and Training 
requirement for the specific warrant authority requested.
    (3) This Grandfather provision for retaining a contracting officer's 
current warrant authority is voided if the contracting officer does not 
fully meet the minimum Skills Currency requirement prior to warrant 
expiration or when the warrant authority is suspended or revoked. The 
contracting officer will then need to meet all of the current warrant 
prerequisites before a new warrant can be issued or before the suspended 
or revoked warrant can be reinstated.
    (h) The training requirements for contracting officers whose 
delegated authority is limited to the acquisition of transportation 
services, as provided in part 102-117 of title 41 Code of Federal 
Regulations, the Federal Management Regulation, shall be as specified 
therein.



Sec. 801.690-6  Appointment.

    (a) Only the DSPE (for Level II and Level III (Senior Limited or 
Unlimited)) warrants and the respective HCA (for Level I warrants) may 
sign the

[[Page 168]]

Certificate of Appointment as Contracting Officer. HCAs are authorized 
to grant Micro-purchase Level and Level I warrant contracting authority 
up to the thresholds specified for these authorities at 801.690-2(c). 
The HCA may recommend a candidate to the DSPE for appointment as a Level 
II warrant or Level III warrant contracting officer. Only the DSPE may 
grant Level II warrant, Level III (Senior Limited or Unlimited) warrant, 
and Multi-VISN authority.
    (b) All Certificates of Appointment as Contracting Officers and 
other written documents must clearly state any limitations or 
restrictions on the authority.
    (c) The Privacy Act of 1974 applies to the information collected 
during contracting officer selection and appointment.



Sec. 801.690-7  Termination.

    (a) The DSPE (for all warrant levels) or HCA (for Micro-purchase 
Level and Level I warrants) may revoke or rescind the appointment of a 
contracting officer at any time. HCAs may submit a recommendation to 
revoke or rescind the appointment of a contracting officer's Level II 
warrant or Level III (Senior Limited or Unlimited) warrant to the DSPE. 
Revocation may be based on the following circumstances:
    (1) There is no longer a need for the appointment;
    (2) There has been a personnel action such as a resignation, 
retirement, transfer;
    (3) Unsatisfactory performance;
    (4) Alleged official misconduct pending criminal or administrative 
investigations;
    (5) Failure to meet training or skills currency requirements;
    (6) A contracting officer taking an action that exceeds his or her 
authority;
    (7) Blatant disregard for adhering to acquisition regulations, 
policies and procedures; or
    (8) Situations similar to those in paragraphs (a)(1) through (7) of 
this section that may require remedial action.
    (b) The HCA should discuss a termination of contracting authority 
for cause with the servicing Human Resource Management Office to 
determine the impact, if any, on the contracting officer's continued 
employment.
    (c) All changes in the status (e.g., departure, name, position, or 
grade change) of a micro-purchase cardholder or Level I warrant holder 
shall be reported in writing by the individual's supervisor to the HCA 
within five workdays of occurrence. All changes in the status of a Level 
II warrant or Level III (Senior Limited or Unlimited) warrant holder 
shall be reported in writing by the HCA to the DSPE within five workdays 
of occurrence. Level II warrants or Level III (Senior Limited or 
Unlimited) warrants that are terminated, rescinded, or superseded should 
be returned to the Director, Acquisition Resources Service (049A5), 
citing the exact reason for the termination, rescission, or 
supersession.



Sec. 801.690-8  Interim appointment provisions.

    (a) To ensure availability of procurement support, an interim 
appointment may be granted for a limited period of time when a candidate 
does not fully meet the minimum qualifications for Experience, 
Education, or successful completion of all acquisition Training 
requirements in previous VA regulations or VA internal guidance, if 
applicable, or as provided in the OFPP Memorandum dated January 20, 
2006, titled ``the Federal Acquisition Certification in Contracting 
Program.'' All interim appointments made after January 1, 2007, for 
individuals who do not meet the minimum Experience, Education, or 
Training requirements for Levels I through III warrants shall be signed 
by the SPE or, if so delegated, the ACM, without power to redelegate, as 
provided in the OFPP Memorandum dated January 20, 2006, titled ``the 
Federal Acquisition Certification in Contracting Program.''
    (1) In a request for an interim appointment, the HCA must include 
the information required by 801.690-4 on the candidate's training, 
experience, performance, and education, and a justification for the 
interim appointment.
    (2) The HCA must ensure that the candidate with interim appointment

[[Page 169]]

meets the minimum Experience, Education, and Training requirements 
within the time specified on the warrant.
    (3) A contracting officer with interim appointment should 
successfully complete all remaining required courses or equivalent 
courses within the time specified on the warrant.
    (b) At the HCA's written request, a permanent warrant may be issued 
during the interim appointment period when the contracting officer has 
satisfactorily met the requirements. The appropriate documentation 
(copies of course certificates) must be submitted with the HCA's 
request.
    (c) An interim appointment may be appropriate for instances such as 
organizational changes or sudden, extreme, and unexpected increases in 
workload complexity and/or volume.
    (d) Interim appointments will not be granted under the following 
circumstances:
    (1) To a candidate who is warranted but does not meet the Education 
or Training requirements for higher level (e.g., from Level I warrant to 
Level II warrant) contracting authority (unless waived by the SPE);
    (2) To a candidate who does not have a current record of 
satisfactory-or-above performance; or
    (3) To a contracting officer whose authority has expired and who has 
not met the continuing education requirement during the two preceding 
years.
    (e) Generally, an interim appointment may not exceed one year.



Sec. 801.690-9  Distribution of Certificates of Appointment.

    (a) The DSPE or HCA will issue an original Certificate of 
Appointment as Contracting Officer to the appointed candidate, who must 
display the Certificate at his or her duty station.
    (b) The HCA shall file a copy of the warrant in the delegation of 
authority file.
    (c) The contracting officer must furnish a copy to the respective 
fiscal activity.
    (d) Each Certificate will be serially numbered, reflecting the 
facility number, the year of issuance (e.g., facility number--year of 
issuance (2 digits)--sequential number, 560-04-10), and have an 
effective and expiration date.



Sec. 801.695  VA's Appointment of HCAs Program.



Sec. 801.695-1  Policy.

    (a) VA's policy is to have a minimum number of HCAs. Generally, 
there will be one HCA per VISN, other major VA organizational element, 
or major acquisition organization. The authority vested in the Secretary 
to select, appoint, and terminate HCAs is delegated to the SPE and is 
further delegated from the SPE to the DSPE.
    (b) Under the FAR at 1.601(a) and 2.101, an HCA is a senior level 
position. The official who occupies this position should have the 
education, training, and experience necessary to make the decisions 
required of an HCA.
    (c) Except as provided in the FAR, an HCA may delegate his or her 
authority to other individuals within the HCA's acquisition activity. 
Such delegations must be in writing and must set forth the specific 
limitations on the designee's authority. The delegation may include 
authority to appoint a contracting officer at the Micro-purchase Level 
or the Level I warrant levels.



Sec. 801.695-2  Procedures for appointment of HCAs.

    An HCA must be appointed in writing by the DSPE and in accordance 
with internal VA policy. The written delegation must state any 
limitation on the HCA's authority, other than a limitation contained in 
an applicable law or regulation.



Sec. 801.695-3  Authority of the HCA.

    (a) The HCA has overall responsibility for managing the procurement 
program assigned to the activity.
    (b) The HCA's level of contracting authority, if any, shall be 
specified in the HCA's appointment letter.
    (c) The HCA has the authority to appoint and terminate contracting 
officers with authority to conduct procurements of up to and including 
the simplified acquisition threshold or the maximum order threshold or 
limitation for orders placed against Federal

[[Page 170]]

Supply Schedule contracts, and to terminate such appointments (Micro-
purchase Level and Level I warrant appointments).

                 PART 802_DEFINITIONS OF WORDS AND TERMS

                        Subpart 802.1_Definitions

Sec.

Sec. 802.101 Definitions.

    Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c) and (d); and 48 
CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                        Subpart 802.1_Definitions



Sec. 802.101  Definitions.

    A/E means architect/engineer.
    Chief Acquisition Officer means the Assistant Secretary for 
Management.
    COTR means Contracting Officer's Technical Representative or 
Contracting Officer's Representative.
    D&S Committee means the VA Debarment and Suspension Committee, a 
committee consisting of the Director, Acquisition Resources Service 
(chair), and representatives of the Office of Management, Office of 
Inspector General, and the program office to which the particular 
debarment or suspension case relates. A representative from OGC will 
serve as legal counsel to the D & S Committee.
    Debarring official means the DSPE, who is also the Associate Deputy 
Assistant Secretary for Acquisitions. Authority to impose debarment is 
delegated to the SPE and is further delegated to the DSPE.
    DSPE means the Deputy Senior Procurement Executive, who is also the 
Associate Deputy Assistant Secretary for Acquisitions. The DSPE must be 
career member of the Senior Executive Service.
    FAR means the Federal Acquisition Regulation.
    GAO means the Government Accountability Office.
    HCA means the Head of the Contracting Activity, an individual 
appointed in writing by the DSPE under VA's Appointment of HCAs Program 
(see 801.695).
    OGC means the Office of the General Counsel.
    Resident Engineer has the same meaning as contracting officer's 
technical representative or contacting officer's representative (see 
852.270-1).
    Service-disabled veteran-owned small business concern (SDVOSB) has 
the same meaning as defined in the Federal Acquisition Regulation (FAR) 
part 2.101, except for acquisitions authorized by 813.106 and subpart 
819.70. These businesses must then be listed as verified on the Vendor 
Information Pages (VIP) database at http://www.vetbiz.gov. In addition, 
some businesses may be owned and controlled by a surviving spouse.
    Small business concern has the same meaning as defined in FAR 2.101.
    SPE means the Senior Procurement Executive who is also the Deputy 
Assistant Secretary for Acquisition and Materiel Management. The SPE is 
responsible for the management direction of the VA acquisition system. 
The SPE may further delegate authority to the DSPE.
    Surviving spouse means an individual who has been listed in the 
Department of Veterans Affairs' (VA) Veterans Benefits Administration 
(VBA) database of veterans and family members. To be eligible for 
inclusion in the VetBiz.gov VIP database, the following conditions must 
apply:
    (1) If the death of the veteran causes the small business concern to 
be less than 51 percent owned by one or more service-disabled veterans, 
the surviving spouse of such veteran who acquires ownership rights in 
such small business shall, for the period described below, be treated as 
if the surviving spouse were that veteran for the purpose of maintaining 
the status of the small business concern as a service-disabled veteran-
owned small business.
    (2) The period referred to above is the period beginning on the date 
on which the veteran dies and ending on the earliest of the following 
dates:
    (i) The date on which the surviving spouse remarries;
    (ii) The date on which the surviving spouse relinquishes an 
ownership interest in the small business concern;
    (iii) The date that is 10 years after the date of the veteran's 
death; or

[[Page 171]]

    (iv) The date on which the business concern is no longer small under 
federal small business size standards.
    (3) The veteran must have had a 100 percent service-connected 
disability rating or the veteran died as a direct result of a service-
connected disability.
    Suspending official means the DSPE. Authority to impose suspension 
is delegated to the SPE and is further delegated to the DSPE.
    VA means the Department of Veterans Affairs.
    VAAR means the Department of Veterans Affairs Acquisition 
Regulation.
    Vendor Information Pages (VIP) means the VetBiz.gov Vendor 
Information Pages database at http://www.vetbiz.gov.
    Veteran-owned small business concern (VOSB) has the same meaning as 
defined in FAR 2.101, except for acquisitions authorized by 813.106 and 
819.70. These businesses must then be listed as verified in the 
VetBiz.gov VIP database.
    VISN means Veterans Integrated Service Network, an integrated 
network of VA facilities that are focused on pooling and aligning 
resources to best meet local needs in the most cost-effective manner and 
provide greater access to care.

[73 FR 2717, Jan. 15, 2008, as amended at 74 FR 64629, Dec. 8, 2009]

 PART 803_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 803.1_Safeguards

Sec.

Sec. 803.101 Standards of conduct.

Sec. 803.101-3 Department regulations.

Sec. 803.104 Procurement integrity.

Sec. 803.104-7 Violations or possible violations.

       Subpart 803.2_Contractor Gratuities to Government Personnel


Sec. 803.203 Reporting suspected violations of the Gratuities clause.

Sec. 803.204 Treatment of violations.

         Subpart 803.3_Reports of Suspected Antitrust Violations


Sec. 803.303 Reporting suspected antitrust violations.

                      Subpart 803.4_Contingent Fees


Sec. 803.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

             Subpart 803.5_Other Improper Business Practices


Sec. 803.502 Subcontractor kickbacks.

Sec. 803.570 Commercial advertising.

Sec. 803.570-1 Policy.

Sec. 803.570-2 Contract clause.

Subpart 803.6_Contracts with Government Employees or Organizations Owned 
                          or Controlled by Them


Sec. 803.602 Exceptions.

             Subpart 803.7_Voiding and Rescinding Contracts


Sec. 803.703 Authority.

Sec. 803.705 Procedures.

 Subpart 803.8_Limitation on the Payment of Funds to Influence Federal 
                              Transactions


Sec. 803.804 Policy.

Sec. 803.806 Processing suspected violations.

  Subpart 803.70_Contractor Responsibility To Avoid Improper Business 
                                Practices


Sec. 803.7000 Display of the VA Hotline poster.

Sec. 803.7001 Contract clause.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                        Subpart 803.1_Safeguards



Sec. 803.101  Standards of conduct.



Sec. 803.101-3  Department regulations.

    (a) Part 0 of 38 Code of Federal Regulations (CFR) states the 
standards of conduct for all VA employees, including contracting 
officials.
    (b) Subpart B of 38 CFR part 0 states the employee financial 
disclosure requirements.



Sec. 803.104  Procurement integrity.



Sec. 803.104-7  Violations or possible violations.

    (a) Contracting officers must forward the information required by 
FAR 3.104-7(a)(1) to the HCA. In consultation with

[[Page 172]]

OGC, the HCA may make the determination and concurrence specified in FAR 
3.104-7(a)(1).
    (b) Upon receipt of information describing a violation or possible 
violation of subsections 27(a), (b), (c), or (d) of the Office of 
Federal Procurement Policy Act of 1974 (see FAR 3.104-3), the HCA will 
take action in accordance with FAR 3.104-7(b). The HCA must also report 
violations or possible violations to the VA Office of the Inspector 
General.
    (c) The authority to make the determinations specified in FAR 3.104-
7(b)(5) and 3.104-7(d)(2)(ii)(B) is delegated to the SPE and is further 
delegated to the DSPE.
    (d) As provided in FAR 3.104-7(f), the HCA may authorize a 
contracting officer to award a contract after notifying the DSPE of the 
circumstances warranting such an award.

       Subpart 803.2_Contractor Gratuities to Government Personnel



Sec. 803.203  Reporting suspected violations of the Gratuities clause.

    (a) Any VA employee must report a suspected violation of the 
Gratuities clause to the contracting officer or a higher level VA 
official.
    (b) The report must identify the contractor and the personnel 
involved, provide a summary of the pertinent evidence and circumstances 
that indicate a violation, and include any other available supporting 
documentation.
    (c) The contracting officer or higher level official must supplement 
the file with appropriate information and promptly forward the report to 
the DSPE, with copies to the VA Office of the Inspector General and the 
Assistant Secretary for Management.



Sec. 803.204  Treatment of violations.

    In providing the notice and hearing required by FAR 3.204, the SPE 
may make the determinations required by FAR 3.204. This authority is 
further delegated to the DSPE. The DSPE shall use the following 
procedures to determine whether or not a violation of the Gratuities 
clause has occurred:
    (a) Upon receipt of an allegation or evidence of a violation of the 
Gratuities clause, the DSPE shall refer the matter to the D&S Committee 
to conduct a fact-finding. Upon completion of the fact-finding, the D&S 
Committee shall present the facts and recommendations for further action 
to the DSPE.
    (b) If the DSPE finds a basis for further action, the D&S Committee 
shall prepare a notice under FAR 3.204 for signature of the DSPE. If 
suspension or debarment is also being considered, the D&S Committee 
shall also follow the procedures contained in 809.4. The signed notice 
will be sent to the last known address of the contractor, the 
contractor's counsel, or agent for service of process, by certified 
mail, return receipt requested, or any other method that provides signed 
evidence of receipt. In the case of a business, the D&S Committee may 
send the notice to any partner, principal, officer, director, owner or 
co-owner, or joint venture.
    (c) If VA does not receive a reply from the contractor within 45 
calendar days of sending the notice, the D&S Committee will prepare a 
recommendation and refer the case to the DSPE for a decision on whether 
or not to take further action under FAR 3.204.
    (d) If VA receives a reply from the contractor within 45 calendar 
days of sending the notice, the D&S Committee must consider the 
information in the reply before the D&S Committee makes its 
recommendation to the DSPE.
    (e) The D&S Committee, upon the request of the contractor, must, as 
soon as practicable, allow the contractor an opportunity to appear 
before the D&S Committee, in person or through a representative, to 
present information or argument. The contractor may supplement the oral 
presentation with written information and argument. The proceeding will 
be conducted in an informal manner and without requirement for a 
transcript. The D&S Committee shall prepare a report of the presentation 
for submission to the DSPE and must consider the information presented 
when making its recommendation to the DSPE.
    (f) If the D&S Committee finds that the contractor's submission in 
opposition to further action under FAR 3.204

[[Page 173]]

raises a genuine dispute over facts material to the action, then the D&S 
Committee shall submit to the DSPE the information establishing the 
dispute of material facts. If the DSPE agrees that there is a genuine 
dispute of material facts, the DSPE shall refer the dispute to a 
designee for resolution under 809.470. The DSPE may reject the findings 
of the fact-finding official only if the findings are clearly erroneous 
or arbitrary and capricious.
    (g) If there are no disputes over material facts or if all disputes 
over material facts have been resolved under 809.470, the DSPE will make 
a decision on the basis of all information available, including findings 
of facts and oral or written arguments presented or submitted to the D & 
S Committee by the contractor. The DSPE should consider any mitigating 
factors, such as those listed at FAR 9.406-1 and 809.406-1, prior to 
making a final decision.

         Subpart 803.3_Reports of Suspected Antitrust Violations



Sec. 803.303  Reporting suspected antitrust violations.

    (a) Any VA employee who suspects or has evidence of possible 
antitrust violations must report the suspected violations, in accordance 
with FAR 3.303, to the VA Office of the Inspector General and to the 
Assistant Secretary for Management for review and submission to OGC.
    (b) Either the General Counsel or the Inspector General will 
determine whether to submit the case to the U.S. Attorney General.

                      Subpart 803.4_Contingent Fees



Sec. 803.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

    (a) A VA employee who suspects or has evidence of an attempted or 
actual exercise of improper influence, misrepresentation of a contingent 
fee arrangement, or any other violation of the Covenant Against 
Contingent Fees must report the matter to the contracting officer or to 
the VA Office of Inspector General.
    (b) In addition to the requirement in paragraph (a) of this section, 
a contracting officer must report a suspected or actual 
misrepresentation or violation to the DSPE.
    (c) Before taking any administrative action under FAR 3.405, a 
contracting officer must consult with his or her Regional Counsel. A 
contracting officer in the Central Office must consult with OGC.
    (d) Contracting officers shall route any referrals of suspected 
fraudulent or criminal matters to the Department of Justice under FAR 
3.405(b)(4) through OGC or the VA Office of the Inspector General, with 
a copy to the Assistant Secretary for Management. The General Counsel or 
the Inspector General will determine whether to forward the referral to 
the Department of Justice.

             Subpart 803.5_Other Improper Business Practices



Sec. 803.502  Subcontractor kickbacks.

    A VA employee who suspects a violation of the Anti-kickback Act must 
report the suspected violation to OGC for review.



Sec. 803.570  Commercial advertising.



Sec. 803.570-1  Policy.

    It is VA policy that contractors will not advertise the award of 
contracts or refer to VA contracts in contractors' commercial 
advertising in such a manner as to state or imply that VA endorses a 
product, project, or commercial line of endeavor. The intent of this 
policy is to preclude the appearance of bias toward any product or 
service.



Sec. 803.570-2  Contract clause.

    The contracting officer shall insert the clause at 852.203-70, 
Commercial advertising, in solicitations and contracts expected to equal 
or exceed the micro-purchase threshold.

[[Page 174]]

Subpart 803.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them



Sec. 803.602  Exceptions.

    The authority to authorize an exception to the policy in FAR 3.601 
is delegated to the SPE and is further delegated to the DSPE.

             Subpart 803.7_Voiding and Rescinding Contracts



Sec. 803.703  Authority.

    The authority to make determinations under FAR Subpart 3.7, Voiding 
and Rescinding Contracts, is delegated to the SPE and is further 
delegated to the DSPE.



Sec. 803.705  Procedures.

    In making a determination to void or rescind a contract, the DSPE 
must follow the procedures of FAR 3.705 and the following:
    (a) Upon receipt of an allegation or evidence of situations meeting 
the provisions of FAR 3.700, the DSPE shall refer the matter to the D&S 
Committee to conduct a finding of facts. Upon completion of the fact-
finding, the D&S Committee shall present the facts and recommendations 
for further action to the DSPE.
    (b) If the DSPE finds a basis for further action, the D&S Committee 
shall prepare a notice under FAR 3.705 for signature of the DSPE. If 
suspension or debarment is being considered, the D&S Committee shall 
also follow the procedures of 809.4. The signed notice will be sent to 
the last known address of the contractor, the contractor's counsel, or 
registered agent, by certified mail, return receipt requested. In the 
case of a business, the D&S Committee may send the notice to any 
partner, principal, officer, director, owner or co-owner, or joint 
venture.
    (c) If VA does not receive a reply from the contractor within 30 
calendar days of receipt of the notice by the addressee, the D&S 
Committee will prepare a recommendation and refer the case to the DSPE 
for a decision on whether or not to take further action under FAR 3.705.
    (d) If VA receives a reply from the contractor within 30 calendar 
days of receipt of the notice, the D&S Committee must consider the 
information in the reply before the D&S Committee makes its 
recommendation to the DSPE.
    (e) The D&S Committee, upon the request of the contractor, must, as 
soon as practicable, allow the contractor an opportunity to appear 
before the D&S Committee, in person or through a representative, to 
present information or argument. The contractor may supplement the oral 
presentation with written information and argument. The proceeding will 
be conducted in an informal manner and without requirement for a 
transcript. The D&S Committee shall prepare a report of the presentation 
for submission to the DSPE.
    (f) If the D&S Committee finds that the contractor's submission in 
opposition to further action under FAR 3.705 raises a genuine dispute 
over facts material to the action, then the D&S Committee shall submit 
to the DSPE the information establishing the dispute of material facts. 
If the DSPE agrees that there is a genuine dispute of material facts, 
the DSPE shall refer the dispute to a designee for resolution under 
809.470. The DSPE may reject the findings of the fact-finding official 
only if the findings are clearly erroneous or arbitrary and capricious.
    (g) If there are no disputes over material facts or if all disputes 
over material facts have been resolved under 809.470, the DSPE will make 
a decision on the basis of all information available, including findings 
of facts and oral or written arguments presented or submitted to the D&S 
Committee by the contractor.

 Subpart 803.8_Limitation on the Payment of Funds to Influence Federal 
                              Transactions



Sec. 803.804  Policy.

    A contracting officer must forward a copy of all contractor 
disclosures furnished under the clause at FAR 52.203-12, Limitations on 
Payments to Influence Certain Federal Transactions, to the Director, 
Acquisition Resources

[[Page 175]]

Service, for subsequent submission by the Secretary to Congress.



Sec. 803.806  Processing suspected violations.

    A VA employee must report suspected violations of 31 U.S.C. 1352, 
Limitation on Use of Appropriated Funds to Influence Certain Federal 
Contracting and Financial Transactions, to the Assistant Secretary for 
Management and the VA Office of the Inspector General.

  Subpart 803.70_Contractor Responsibility to Avoid Improper Business 
                                Practices



Sec. 803.7000  Display of the VA Hotline poster.

    (a) Under the circumstances described in paragraph (b) of this 
section, a contractor must display prominently a VA Hotline poster 
prepared by the VA Office of Inspector General in a common work area 
within a business segment performing work under a VA contract.
    (b) A contractor must comply with paragraph (a) of this section when 
all of the following apply:
    (1) The contractor is awarded a VA contract for $500,000 or more for 
supplies or services, or $3 million or more for construction.
    (2) The contractor has not established an internal reporting 
mechanism and program, such as a hotline, by which employees may report 
suspected instances of improper conduct, and instructions that encourage 
employees to make such reports.



Sec. 803.7001  Contract clause.

    The contracting officer shall insert the clause at 852.203-71, 
Display of Department of Veterans Affairs Hotline poster, in 
solicitations and contracts expected to equal or exceed the dollar 
thresholds established in 803.7000.

                     PART 804_ADMINISTRATIVE MATTERS

                    Subpart 804.1_Contract Execution

Sec.

Sec. 804.101 Contracting officer's signature.

Sec. 804.1102 Vendor Information Pages (VIP) Database.

    Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c) and (d); and 48 
CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                    Subpart 804.1_Contract Execution



Sec. 804.101  Contracting officer's signature.

    (a) If a contracting officer's name and title has been typed, 
stamped, or printed on the contract, and that contracting officer is not 
available to sign the contract, another contracting officer, as 
specified in 801.602, may sign the contract.
    (b) The contracting officer who signs the contract must have 
contracting authority to cover the contract to be signed and must 
annotate his or her name and title below his or her signature.



Sec. 804.1102  Vendor Information Pages (VIP) Database.

    Prior to January 1, 2012, all VOSBs and SDVOSBs must be listed in 
the VIP database, available at http://www.VetBiz.gov, and also must be 
registered in the Central Contractor Registration (CCR) (see 48 CFR 
subpart 4.11) to receive contract awards under VA's Veteran-owned Small 
Business prime contracting and subcontracting opportunities program. 
After December 31, 2011, all VOSBs, including SDVOSBs, must be listed as 
verified in the VIP database, and also must be registered in the CCR to 
be eligible to participate in order to receive new contract awards under 
this program.

[74 FR 64630, Dec. 8, 2009]

[[Page 176]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                  PART 805_PUBLICIZING CONTRACT ACTIONS

           Subpart 805.2_Synopses of Proposed Contract Actions

Sec.

Sec. 805.202 Exceptions.

Sec. 805.205 Special situations.

Sec. 805.207 Preparation and transmittal of synopses.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

           Subpart 805.2_Synopses of Proposed Contract Actions



Sec. 805.202  Exceptions.

    In accordance with FAR 5.202, the contract actions in 806.302-5 do 
not require synopsizing.



Sec. 805.205  Special situations.

    (a) A contracting officer may procure paid advertising in a daily 
newspaper circulated in the local area to publicize a proposed 
procurement of architectural and engineering (A/E) services not expected 
to exceed $10,000. See FAR 5.101(b)(4)(i) and 5.502(a).
    (b) A contracting officer may procure paid advertising in a daily 
newspaper circulated in the local area or in professional journals to 
publicize a proposed procurement of professional services (e.g., scarce 
medical specialist services, health-care resources, advisory and 
assistance services). See FAR 5.101(b)(4)(i) and 5.502(a).



Sec. 805.207  Preparation and transmittal of synopses.

    (a) When an A/E evaluation board is ready to advertise for A/E 
services, the board must establish the geographic area within which it 
will consider A/E firms (including joint ventures).
    (b) The geographic area must be large enough to assure selection of 
three to five firms highly qualified for the particular project 
involved, but not so large as to make the evaluation process unduly 
burdensome.

                    PART 806_COMPETITION REQUIREMENTS

           Subpart 806.3_Other Than Full and Open Competition

Sec.

Sec. 806.302 Circumstances permitting other than full and open 
          competition.

Sec. 806.302-5 Authorized or required by statute.

Sec. 806.302-7 Public interest.

Sec. 806.304 Approval of the justification.

                   Subpart 806.5_Competition Advocates


Sec. 806.501 Requirement.

Sec. 806.570 Planning requirements.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

           Subpart 806.3_Other Than Full and Open Competition



Sec. 806.302  Circumstances permitting other than full and open 
          competition.



Sec. 806.302-5  Authorized or required by statute.

    (a) Full and open competition need not be provided for when 
awarding:
    (1) Scarce Medical Specialist contracts negotiated under the 
authority of 38 U.S.C. 7409, but only when such contracts are with 
institutions affiliated with VA under 38 U.S.C. 7302. (38 U.S.C. 7409)
    (2) Contracts for health-care resources negotiated under the 
authority of 38 U.S.C. 8153, but only when such contracts are with 
institutions affiliated with VA under 38 U.S.C. 7302, including medical 
practice groups and other approved entities associated with affiliated 
institutions (entities will be approved if determined legally to be 
associated with affiliated institutions), or with blood banks, organ 
banks, or research centers. The justification and approval requirements 
of FAR 6.303 and

[[Page 177]]

806.304 do not apply to such contracts or agreements. (38 U.S.C. 8153)
    (3) Contracts for health-care resources, negotiated under the 
authority of 38 U.S.C. 8153, that are not acquired under the authority 
of paragraph (a)(2) of this section, but only when the procurement is 
conducted in accordance with part 873. The justification and approval 
requirements of FAR 6.303 and 806.304 shall apply to such contracts and 
agreements conducted on a sole-source basis. (38 U.S.C. 8153)
    (b) Various sections of title 38 U.S.C. authorize the Secretary to 
enter into certain contracts and certain types of contracts without 
regard to any other provisions of law. When the contracting officer 
enters into a contract without providing full and open competition for 
any of the following items or services, the contracting officer must 
cite 41 U.S.C. 253(c)(5) and the following authorities:
    (1) For contracts for orthopedic and prosthetic appliances and 
related services including research, cite 38 U.S.C. 8123. (38 U.S.C. 
8123)
    (2) For contracts to purchase or sell merchandise, equipment, 
fixtures, supplies and services for the operation of the Veterans 
Canteen Service, cite 38 U.S.C. 7802. (38 U.S.C. 7802)
    (3) For contracts or leases for the operation of parking facilities 
established under authority of 38 U.S.C. 8109(b), provided that the 
establishment, operation, and maintenance of such facilities have been 
authorized by the Secretary or designee, cite 38 U.S.C. 8109(f). (38 
U.S.C. 8109)
    (4) For contracts for laundry and other common services, such as the 
purchase of steam, negotiated with non-profit, tax-exempt, educational, 
medical, or community institutions, when specifically approved by the 
Secretary or designee and when such services are not reasonably 
available from private commercial sources, cite 38 U.S.C. 8122(c). (38 
U.S.C. 8122)
    (5) For contracts or agreements with public or private agencies for 
services of translators, cite 38 U.S.C. 513. (38 U.S.C. 513)
    (c) Except for an acquisition under paragraph (a)(2) of this 
section, the contracting officer must provide a justification under FAR 
6.303 and obtain an approval under 806.304 for each acquisition 
described in this section.



Sec. 806.302-7  Public interest.

    (a) When the contracting officer uses 41 U.S.C. 253(c)(7) to support 
a contract award using other than full and open competition, the 
contracting officer must prepare a Determination and Finding (D&F) under 
FAR 1.7 and a justification under FAR 6.303. The D&F must be signed by 
the Secretary.
    (b) The contracting officer must submit the D&F and justification 
through the HCA to the Agency Competition Advocate for signature by the 
Secretary. The submission must include the date the contracting officer 
expects to award the contract.
    (c) VA must notify Congress 30 days before the expected award date. 
The Agency Competition Advocate is responsible for preparing this 
notice. The contracting officer may not award the contract until 
notified by the Agency Competition Advocate.



Sec. 806.304  Approval of the justification.

    (a) For a justification other than a class justification specified 
in FAR 6.304(c), Table 806.304-1 provides the authorities who may 
approve a justification:

                             Table 806.304.1
------------------------------------------------------------------------
                                                           Alternate
    Proposed contract amount           Approving           approving
                                       authority           authority
------------------------------------------------------------------------
(1) Not exceeding $500,000......  The contracting     Not applicable.
                                   officer, as
                                   provided in FAR
                                   6.304(a)(1).
(2) Over $500,000 but not         Contracting         The Agency
 exceeding $10 million.            Activity            Competition
                                   Competition         Advocate (see
                                   Advocate (see       806.501(a)).
                                   806.501(b) and
                                   (c)) unless that
                                   Advocate is the
                                   contracting
                                   officer.
(3) Over $10 million but not      Agency Competition  Not applicable.
 exceeding $50 million.            Advocate.
(4) Over $50 million............  Senior Procurement  Not applicable.
                                   Executive (see
                                   802.100).
------------------------------------------------------------------------


[[Page 178]]

    (b) For class justifications specified in FAR 6.304(c), the 
contracting officer must obtain the approval of the Agency Competition 
Advocate for all proposed justifications with an estimated value of up 
to $50 million. The contracting officer must obtain the approval of the 
SPE for all proposed justifications with an estimated value of more than 
$50 million.

                   Subpart 806.5_Competition Advocates



Sec. 806.501  Requirement.

    (a) The Associate Deputy Assistant Secretary for Acquisitions is the 
Agency Competition Advocate. The Agency Competition Advocate may further 
delegate authority to other VA officials in VA Administrations and staff 
offices.
    (b) The Executive Director and Chief Operating Officer, National 
Acquisition Center, is the Contracting Activity Competition Advocate for 
the Center.
    (c) Each HCA (see subpart 802.1) will serve as the Contracting 
Activity Competition Advocate in all other cases.
    (d) The authority in paragraphs (b) and (c) of this section is not 
delegable.



Sec. 806.570  Planning requirements.

    (a) Each Contracting Activity Competition Advocate must do the 
following:
    (1) Develop a Competition Plan.
    (2) Incorporate the Plan in the internal operating procedures of the 
facility or organization in which the contracting activity is located.
    (3) Obtain the endorsement and support of the facility or staff 
office director.
    (4) Ensure that the services and offices that the contracting 
activity supports understand the plan.
    (b) At a minimum, the Competition Plan must include the following:
    (1) Approval requirements for other than full and open competition 
specified in FAR 6.304.
    (2) A description of the synopsis requirements in FAR subpart 5.2 to 
ensure that responsible staff fully understand the advance procurement 
planning that is required.
    (3) A description of how to integrate the Competition Plan into 
advance procurement planning.
    (4) A listing of obstacles to competition and a proposal for 
overcoming them.
    (5) A method for increasing cost competition for contracts and 
competition on other significant factors.

                      PART 807_ACQUISITION PLANNING

                     Subpart 807.1_Acquisition Plans

Sec.

Sec. 807.103 Agency-head responsibilities.

         Subpart 807.3_Contractor Versus Government Performance


Sec. 807.300 Scope of subpart.

Sec. 807.304-77 Right of first refusal.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                     Subpart 807.1_Acquisition Plans



Sec. 807.103  Agency-head responsibilities.

    The authority to prescribe procedures in FAR 7.103 is delegated to 
the SPE and is further delegated to the DSPE.

         Subpart 807.3_Contractor Versus Government Performance



Sec. 807.300  Scope of subpart.

    This subpart prescribes the use of VAAR clause at 852.207-70, Report 
of employment under commercial activities, when contracting for 
commercial services under Office of Management and Budget (OMB) Circular 
A-76 or VA's cost comparison process. The cost comparison process is 
used by VA to determine whether to use commercial or Government 
resources to provide commercial services.



Sec. 807.304-77  Right of first refusal.

    (a) In addition to the Right of First Refusal of Employment clause 
specified in FAR 52.207-3, the contracting officer must include the 
clause ``Report of Employment Under Commercial Activities'' at 852.207-
70 in all cost comparison solicitations where VA personnel may be 
displaced. This clause is primarily intended to verify that the

[[Page 179]]

contractor is meeting its obligation to provide Federal workers who are 
adversely affected by the contract award and who are qualified for the 
jobs the first opportunity for employment openings created by the 
contract.
    (b) The Report of Employment Under Commercial Activities clause is 
also prescribed to avoid inappropriate severance payment. To implement 
the clause, the contracting officer (or COTR) must first obtain a list 
of Federal personnel who will be adversely affected as a result of the 
anticipated contract from the servicing Human Resources Service office. 
The list should be requested as soon as a preliminary determination is 
made to contract out a function subject to OMB Circular A-76. 
(Contracting officers may designate a COTR to coordinate the information 
and reporting requirements.)

           PART 808_REQUIRED SOURCES OF SUPPLIES AND SERVICES

Sec.

Sec. 808.002 Priorities for use of Government supply sources.

                 Subpart 808.4_Federal Supply Schedules


Sec. 808.402 General.

Sec. 808.405-2 Ordering procedure for services requiring a statement of 
          work.

  Subpart 808.6_Acquisition From Federal Prison Industries, Inc. (FPI)


Sec. 808.603 Purchase priorities.

       Subpart 808.8_Acquisition of Printing and Related Supplies


Sec. 808.802 Policy.

    Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c) and (d); and 48 
CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.



Sec. 808.002  Priorities for use of Government supply sources.

    (a) Supplies. (1) As used in FAR 8.002(a)(1)(i), the term ``agency 
inventories'' includes Supply Fund Stock and VA Excess.
    (2) A national committed use contract awarded by the VA National 
Acquisition Center has a priority between wholesale supply sources (FAR 
8.002(a)(1)(v)) and mandatory Federal Supply Schedules (FAR 
8.002(a)(1)(vi)).
    (3) Federal Supply Schedule contracts awarded by the VA National 
Acquisition Center in Federal Supply Classification (FSC) Groups 65 and 
66 shall be mandatory for use by VA and shall have the same order of 
priority as mandatory Federal Supply Schedules (FAR 8.002(a)(1)(vi)). VA 
contracting officers must place orders against Federal Supply Schedules 
contracts awarded by the VA National Acquisition Center in FSC Groups 65 
and 66 in the following descending order of priority:
    (i) Nationally awarded Blanket Purchase Agreements (BPAs), issued by 
the VA National Acquisition Center against Federal Supply Schedules.
    (ii) Multi-VISN, single-VISN, or locally awarded BPAs, issued by 
VISN, regional, or local VA contracting officers against Federal Supply 
Schedules.
    (iii) Federal Supply Schedules without BPAs.
    (4) Indefinite delivery indefinite quantity (IDIQ) contracts, 
awarded by VISN, regional, or local facility VA contracting officers, 
for supplies not covered by national committed use contracts or Federal 
Supply Schedule contracts shall have an order of priority between 
optional use Federal Supply Schedules (FAR 8.002(1)(a)(vii)) and 
commercial sources (including educational and nonprofit institutions) 
(FAR 8.002(1)(a)(viii)). VA contracting officers must place delivery 
orders against IDIQ contracts, awarded by VISN, regional, or a local 
facility contracting officers, for supplies not covered by national 
committed use contracts or Federal Supply Schedule contracts in the 
following descending order of priority:
    (i) VISN or regionally awarded contracts.
    (ii) Locally awarded contracts.
    (5) Open market purchases (purchases not falling within any of the 
higher priorities in paragraphs (a)(2) through (4) of this section) have 
the same priority as commercial sources (including educational and 
nonprofit institutions) (FAR 8.002(1)(a)(viii)).
    (b) Unusual or compelling urgency. The contracting officer may use a 
source lower in priority than as specified in paragraph (a) of this 
section when the

[[Page 180]]

need for supplies or services is of an unusual or compelling urgency 
(see FAR 6.302-2). The Contracting Officer must include a justification 
for each deviation in the procurement file.
    (c) Eligible Beneficiaries. (1) A contracting officer may authorize 
an acquisition from the Veterans Canteen Service or a commercial source 
when a VA healthcare official (e.g., social worker, physician) 
determines that personal selection of shoes, clothing, and incidentals 
will result in a therapeutic benefit to an eligible beneficiary.
    (2) The contracting officer must cite Federal Prison Industries, 
Inc., clearance No. 1206 in the purchase document for any purchase from 
a commercial source of dress shoes similar to Federal Prison Industries, 
Inc., Style No. 86-A.

                 Subpart 808.4_Federal Supply Schedules



Sec. 808.402  General.

    The Executive Director and Chief Operating Officer, VA National 
Acquisition Center, advertises, negotiates, awards, administers, and 
issues the Federal Supply Schedules for Federal Supply Classification 
Groups 62, 65, and 89 and for cost-per-test services under Group 66.



Sec. 808.405-2  Ordering procedure for services requiring a statement of 
          work.

    When placing an order or establishing a BPA for supplies or services 
requiring a statement of work, the ordering activity, when developing 
the statement of work and any evaluation criteria in addition to price, 
shall adhere to and apply the evaluation factor commitments at 815.304-
70.

[74 FR 64630, Dec. 8, 2009]

  Subpart 808.6_Acquisition From Federal Prison Industries, Inc. (FPI)



Sec. 808.603  Purchase priorities.

    Contracting officers may purchase supplies and services produced or 
provided by FPI from eligible service-disabled veteran-owned small 
businesses and veteran-owned small businesses, in accordance with 
procedures set forth in subpart 819.70, without seeking a waiver from 
FPI, in accordance with 38 U.S.C. 8128, Small business concerns owned 
and controlled by veterans: Contracting priority.

[74 FR 64630, Dec. 8, 2009]

       Subpart 808.8_Acquisition of Printing and Related Supplies



Sec. 808.802  Policy.

    The Director, Publications Staff, Office of Acquisition and Materiel 
Management, VA Central Office, is the Central Printing Authority for VA 
(see FAR 8.802(b)).

                   PART 809_CONTRACTOR QUALIFICATIONS

            Subpart 809.1_Responsible Prospective Contractors

Sec.

Sec. 809.104 Standards.

Sec. 809.104-2 Special standards.

Sec. 809.106 Preaward surveys.

Sec. 809.106-1 Conditions for preaward surveys.

                Subpart 809.2_Qualifications Requirements


Sec. 809.201 Definitions.

Sec. 809.202 Policy.

Sec. 809.204 Responsibilities for establishment of a qualification 
          requirement.

Sec. 809.206 Acquisitions subject to qualification requirements.

Sec. 809.206-1 General.

Sec. 809.270 Qualified products for convenience/labor-saving foods.

         Subpart 809.4_Debarment, Suspension, and Ineligibility


Sec. 809.400 Scope of subpart.

Sec. 809.402 Policy.

Sec. 809.404 Excluded Parties List System.

Sec. 809.405 Effect of listing.

Sec. 809.405-1 Continuation of current contracts.

Sec. 809.405-2 Restrictions on subcontracting.

Sec. 809.406 Debarment.

Sec. 809.406-1 General.

Sec. 809.406-2 Cause for debarment.

Sec. 809.406-3 Procedures.

Sec. 809.406-4 Period of debarment.

Sec. 809.407 Suspension.

Sec. 809.407-1 General.

Sec. 809.407-3 Procedures.

Sec. 809.470 Fact-finding procedures.

    Subpart 809.5_Organizational and Consultant Conflicts of Interest


Sec. 809.503 Waiver.

[[Page 181]]


Sec. 809.504 Contracting officer responsibilities.

Sec. 809.507 Solicitation provisions and contract clause.

Sec. 809.507-1 Solicitation provisions.

    Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c) and (d); and 48 
CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

            Subpart 809.1_Responsible Prospective Contractors



Sec. 809.104  Standards.



Sec. 809.104-2  Special standards.

    (a) For a pre-award survey prescribed by 809.106-1, a contracting 
officer must develop special standards of sanitation applicable to the 
acquisition of subsistence and services prescribed by 809.106-1(a).
    (b) An appropriate specialist will assist the contracting officer in 
developing the special standards under paragraph (a) of this section.



Sec. 809.106  Pre-award surveys.



Sec. 809.106-1  Conditions for pre-award surveys.

    (a) Except as provided in paragraphs (b) through (e) of this 
section, a committee under the direction of the contracting officer and 
composed of representatives of the medical service or using service 
chiefs or designees appointed by the facility or VISN director will 
conduct a pre-award on-site evaluation of the plant, personnel, 
equipment and processes of the prospective contractor for contracts 
covering the products and services of the following:
    (1) Bakeries.
    (2) Dairies.
    (3) Ice cream plants.
    (4) Laundry and dry cleaning activities.
    (b) Before any inspection, the contracting officer will determine 
whether another VA facility or another Federal agency has recently 
inspected and approved the plant.
    (1) The contracting officer will accept an approved inspection 
report of another VA facility.
    (2) If another Federal agency made a plant inspection not more than 
6 months before the proposed VA contract period, the contracting officer 
may accept an approved inspection report of that other Federal agency as 
satisfactory evidence that the facilities of the bidder meet the bid 
requirements.
    (c) VA will not conduct a pre-award on-site evaluation of a dairy 
plant when VA receives an acceptable bid from a supplier of dairy 
products designated as No.1 in the Federal Specifications if the 
following conditions are met:
    (1) The supplier has received a pasteurized milk rating of 90 
percent or more for the type of product being supplied, on the basis of 
the U.S. Public Health Service milk ordinance and code.
    (2) The rating is current (not over 2 years old) and has been 
determined by a certified State milk sanitation rating officer in the 
State of origin or by the Public Health Service. The contractor must 
maintain the rating of 90 percent or more during the period of the 
contract.
    (3) The solicitation specifications must include the requirements in 
paragraphs (c)(1) and (2) of this section.
    (d) A dairy plant that does not meet paragraph (c) of this section 
may offer only dairy products designated as No. 2 in the Federal 
Specifications. VA will make an award to such a firm only after it 
completes a pre-award on-site evaluation conducted under paragraph (a) 
of this section.
    (e) Before it makes an open market purchase of fresh bakery products 
(such as pies, cakes, and cookies), VA will inspect and evaluate the 
plant where these products are produced or prepared under paragraph (a) 
of this section. VA will make an on-site evaluation at least annually 
and record the results on VA Form 10-2079, Inspection Report of Bakery.

                Subpart 809.2_Qualifications Requirements



Sec. 809.201  Definitions.

    For the purposes of this subpart:
    VA QPL means a VA Qualified Products List, a list of products 
qualified by the VA under VA specifications, or purchase descriptions, 
or commercial item descriptions.

[[Page 182]]

    VISN QPL means a VISN Qualified Products List, a list of products 
qualified by a VISN under VA specifications, or purchase descriptions, 
or commercial item descriptions.



Sec. 809.202  Policy.

    The HCA may sign a justification required by FAR 9.202(a)(1).



Sec. 809.204  Responsibilities for establishment of a qualification 
          requirement.

    (a) Under FAR Subpart 9.2, VA may create VA QPLs for use on 
individual solicitations or on multiple solicitations issued by one or 
more VA facilities.
    (b) An HCA or designee must support the creation of a VA QPL using 
one or more of the following justifications:
    (1) The time required for testing the product after award would 
unduly delay product delivery.
    (2) The cost of repetitive product testing would be excessive.
    (3) Testing the product would require purchasing an expensive or 
complicated apparatus not commonly available.
    (4) It is in the Government's interest to be assured before contract 
award that the product is satisfactory for its intended use.
    (5) Determining acceptability would require providing product 
performance data to supplement technical requirements in the 
specification.
    (6) Conducting a test would result in substantial or repetitive 
rejections.
    (7) VA cannot economically develop clear, professional 
specifications for the product performance, balance, design, or 
construction, and professional judgment is required to determine whether 
the product is acceptable under VA requirements.
    (c) If VA plans to establish a VA QPL for any given product, the 
contracting officer may limit known suppliers to suppliers whose 
products are covered by a Federal Supply Schedule contract, as provided 
at FAR Subpart 8.4.
    (d) VA will pay the costs to inspect and test a product sample 
submitted under this section.
    (1) The product supplier must pay for the sample and its 
transportation to the place of inspecting and testing.
    (2) After inspection and testing, VA will return any product sample 
to the supplier ``as is'' unless:
    (i) The inspection or test destroys the sample; or
    (ii) The supplier authorizes VA to retain or dispose of the sample.
    (e) Once VA accepts a product for the VA QPL, VA may review the 
product for compliance with the applicable specification at any time.
    (1) Where there is a variance between a VA specification that was 
the basis for the VA QPL and the product furnished by the supplier, the 
supplier must furnish an item that conforms to the VA specification.
    (2) If the supplier fails to or is unable to provide a product that 
conforms to the applicable VA specification, the product will be removed 
from the VA QPL.
    (f) VA's acceptance of a product for listing on the VA QPL does not:
    (1) Guarantee that VA will accept the product in any future 
purchase; or
    (2) Constitute a waiver of the specifications as to acceptance, 
inspection, testing, or other provisions of any future contract 
involving the product.



Sec. 809.206  Acquisitions subject to qualification requirements.



Sec. 809.206-1  General.

    The HCA may determine that an emergency exists, as provided in FAR 
9.206-1(b).



Sec. 809.270  Qualified products for convenience/labor-saving foods.

    (a) Each VISN Nutrition and Food Service representative is 
authorized to establish a common VISN QPL for convenience and labor-
saving foods for use at medical facilities within the representative's 
VISN.
    (1) The VISN Nutrition and Food Service representative must notify 
the Director, Nutrition and Food Service, VA Central Office, of the 
establishment or amendment of any VISN QPL.
    (2) To avoid unnecessary duplication within a VISN, for medical 
facilities using an applicable VISN QPL under paragraph (b) of this 
section, the VISN Nutrition and Food Service representative must 
coordinate and consolidate test results and recommendations.
    (b) Each medical facility may:

[[Page 183]]

    (1) Use its VISN QPL; and
    (2) Test food of its choice, provided that the facility submits test 
results to the VISN Nutrition and Food Service representative.
    (c) The VISN representative must provide a copy of each approved 
VISN QPL to the following:
    (1) Each contracting office in the VISN.
    (2) The Director, Nutrition and Food Service, VA Central Office.
    (3) Upon request, the Office of Acquisition and Materiel Management, 
VA Central Office.

         Subpart 809.4_Debarment, Suspension, and Ineligibility



Sec. 809.400  Scope of subpart.

    This subpart supplements provisions of the FAR concerning procedures 
and related actions for the debarment and suspension of contractors.



Sec. 809.402  Policy.

    (a) When VA receives information that another agency is pursuing a 
debarment or suspension identical to a VA action against the same 
contractor, the Debarment and Suspension (D&S) Committee will coordinate 
prospective action with the appropriate official of the other agency to 
establish a lead agency.
    (b) The D&S Committee will provide the designated lead agency with 
any information relevant to the action for consideration in the 
decision-making process.
    (c) The D&S Committee will maintain close coordination with the 
appropriate official through completion of a final debarment or 
suspension decision.



Sec. 809.404  Excluded Parties List System.

    Acquisition Resources Service, Office of Acquisition and Materiel 
Management, is responsible for the actions described in FAR 9.404(c).



Sec. 809.405  Effect of listing.

    The authority under FAR 9.405(a), 9.405(d)(2), and 9.405(d)(3) to 
determine whether to solicit from, evaluate bids or proposals from, or 
award contracts to contractors whose names appear on the Excluded 
Parties List System is delegated to the SPE and is further delegated to 
the DSPE.



Sec. 809.405-1  Continuation of current contracts.

    Authority to make the determinations under FAR 9.405-1 is delegated 
to the SPE and is further delegated to the DSPE.



Sec. 809.405-2  Restrictions on subcontracting.

    When a subcontract is subject to Government consent, authority to 
make the written determination required under FAR 9.405-2 consenting to 
a contractor's use of a subcontractor who is debarred, suspended, or 
proposed for debarment is delegated to the SPE and is further delegated 
to the DSPE.



Sec. 809.406  Debarment.



Sec. 809.406-1  General.

    (a) As provided in FAR 9.406-1(c), authority to determine whether to 
continue business dealings between VA and a contractor debarred or 
proposed for debarment is delegated to the SPE and is further delegated 
to the DSPE.
    (b) For the purposes of FAR 9.406-1, the DSPE is the debarring 
official under the Federal Management Regulation at 41 CFR 102-117.295.
    (c) Additional factors that a debarring official should consider 
before arriving at a debarment decision include the following:
    (1) Whether the contractor had a mechanism, such as a hotline, by 
which employees could have reported suspected instances of improper 
conduct, and instructions in place that encouraged employees to make 
such reports.
    (2) Whether the contractor conducted periodic reviews of company 
business practices, procedures, policies, and internal controls for 
compliance with standards of conduct and the special requirements of 
Government contracting.
    (3) Whether the contractor conducted internal and external audits as 
appropriate.

[[Page 184]]

    (4) Whether the contractor timely reported to appropriate Government 
officials any suspected or possible violations of law in connection with 
Government contracts or any other irregularities in connection with such 
contracts.



Sec. 809.406-2  Cause for debarment.

    (a) Misrepresentation of VOSB or SDVOSB eligibility may result in 
action taken by VA officials to debar the business concern for a period 
not to exceed 5 years from contracting with VA as a prime contractor or 
a subcontractor.
    (b) Any deliberate violation of the limitation on subcontracting 
clause requirements for acquisitions under subpart 819.70 may result in 
action taken by VA officials to debar any service-disabled veteran-
owned, veteran-owned small business concern or any large business 
concern involved in such action.

[74 FR 64630, Dec. 8, 2009]



Sec. 809.406-3  Procedures.

    (a) Any individual may submit a recommendation to debar a contractor 
to the DSPE. The recommendation to debar must be supported with evidence 
of a cause for debarment listed in FAR 9.406-2. When the DSPE receives a 
recommendation for debarment, he or she will refer the matter to the D&S 
Committee. If the reporting individual is a VA employee and the 
recommendation to debar is based on possible criminal or fraudulent 
activities, the VA employee must report the circumstances to the VA 
Office of Inspector General before making a recommendation to the DSPE.
    (b) When the D&S Committee finds evidence of a cause for debarment, 
as listed in FAR 9.406-2, with or without a recommendation, it will 
conduct a fact-finding and present facts to the debarring official.
    (c) If the debarring official finds a basis for proposing a 
contractor for debarment, the D&S Committee will prepare a notice of 
proposed debarment under FAR 9.406-3(c) for the signature of the 
debarring official. The signed notice of proposed debarment will be sent 
to the last known address of the contractor, the contractor's counsel, 
or agent for service of process, by certified mail, return receipt 
requested. In the case of a business, the D&S Committee may send the 
notice of proposed debarment to any partner, principal, officer, 
director, owner or co-owner, or joint venture. The D&S Committee 
concurrently must post notice of proposed debarment to the General 
Services Administration Excluded Parties List System pending a debarment 
decision.
    (d) If VA does not receive a reply from the contractor within 45 
calendar days of sending the notice of proposed debarment, the D&S 
Committee will prepare a recommendation and refer the case to the 
debarring official for a decision on whether or not to debar based on 
the information available.
    (e) If VA receives a reply from the contractor within 45 calendar 
days of sending the notice of proposed debarment, the D&S Committee must 
consider the information in the reply before the D&S Committee makes its 
recommendation to the debarring official.
    (f) The D&S Committee, upon the request of the contractor proposed 
for debarment, must, as soon as practicable, allow the contractor an 
opportunity to appear before the D&S Committee to present information or 
argument in person or through a representative. The contractor may 
supplement the oral presentation with written information and argument. 
The proceeding will be conducted in an informal manner and without 
requirement for a transcript. The D&S Committee shall prepare a report 
of the proceeding for the debarring official.
    (g) If the D&S Committee finds that the contractor's submission in 
opposition to the debarment raises a genuine dispute over facts material 
to the proposed debarment and the debarment action is not based on a 
conviction or civil judgment, then the D&S Committee shall submit to the 
debarring official the information establishing the dispute of material 
facts. If the debarring official agrees that there is a genuine dispute 
of material facts, the debarring official shall refer the dispute to a 
designee for resolution pursuant to 809.470.
    (h) If there are no disputes over material facts, the debarment 
action is

[[Page 185]]

based on a conviction or civil judgment, or all disputes over material 
facts have been resolved pursuant to 809.470, the debarring official 
will make a decision on the basis of all information available, 
including findings of facts and oral or written arguments presented or 
submitted to the D&S Committee by the contractor. The D&S Committee must 
update the status of the action on the General Services Administration 
Excluded Parties List System.



Sec. 809.406-4  Period of debarment.

    (a) Except in an unusual circumstance, the period of debarment will 
not exceed 3 years. The debarring official will base the period of 
debarment on the circumstances surrounding the cause for debarment.
    (b) The DSPE may remove a debarment, amend its scope, or reduce the 
period of debarment based on a D&S Committee recommendation if:
    (1) VA has debarred the contractor;
    (2) The action is indicated after the DSPE reviews documentary 
evidence submitted by or on behalf of the contractor setting forth the 
appropriate grounds for granting relief. Appropriate grounds include 
newly discovered material evidence, reversal of a conviction, bona fide 
change of ownership or management, elimination of the cause for which 
debarment was imposed, or any other appropriate grounds.



Sec. 809.407  Suspension.



Sec. 809.407-1  General.

    (a) As provided in FAR 9.407-1(d), authority to determine whether to 
continue business dealings between VA and a suspended contractor is 
delegated to the SPE and is further delegated to the DSPE.
    (b) For the purposes of FAR 9.407-1, the DSPE is the suspending 
official under the Federal Management Regulation at 41 CFR 102-117.295.



Sec. 809.407-3  Procedures.

    (a) Any individual may submit a recommendation to suspend a 
contractor to the DSPE. The recommendation to suspend must be supported 
with evidence of a cause for suspension listed in FAR 9.407-2. When the 
DSPE receives a recommendation for suspension, he or she will refer the 
matter to the D&S Committee. If the reporting individual is a VA 
employee and the recommendation to suspend is based on possible criminal 
or fraudulent activities, the VA employee must report the circumstances 
to the VA Office of Inspector General before making a recommendation to 
the DSPE.
    (b) When the D&S Committee finds evidence of a cause for suspension, 
as listed in FAR 9.407-2, with or without a recommendation, it will 
conduct a fact-finding and present facts and recommendations to the 
suspending official.
    (c) If the suspending official finds a basis for suspending a 
contractor, the D&S Committee will prepare a notice of suspension under 
FAR 9.407-3(c) for the signature of the suspending official. The signed 
notice of suspension will be sent to the last known address of the 
contractor, the contractor's counsel, or agent for service of process, 
by certified mail, return receipt requested. In the case of a business, 
the D&S Committee may send the notice of suspension to any partner, 
principal, officer, director, owner or co-owner, or joint venture. The 
D&S Committee concurrently must post notice of suspension to the General 
Services Administration Excluded Parties List System pending completion 
of investigation and any ensuing legal proceedings.
    (d) If VA receives a reply from the contractor within 45 calendar 
days of sending the notice of suspension, the D&S Committee must 
consider the information in the reply before the Committee makes further 
recommendations to the suspending official. The D&S Committee, upon the 
request of a suspended contractor, must, as soon as practicable, allow 
the contractor an opportunity to appear before the D&S Committee to 
present information or argument in person or through a representative. 
The contractor may supplement the oral presentation with written 
information and argument. The proceeding will be conducted in an 
informal manner and without requirement for a transcript. The D&S 
Committee shall prepare a report of the proceeding for the suspending 
official.

[[Page 186]]

    (e) In actions not based on an indictment, if the D&S Committee 
finds that the contractor's submission in opposition to the suspension 
raises a genuine dispute over facts material to the suspension, the D&S 
Committee shall submit to the suspending official the information 
establishing the dispute of material facts. However, the D&S Committee 
must first coordinate any further proceeding regarding the facts in 
dispute with the Department of Justice or with a State prosecuting 
authority in a case involving a State jurisdiction. VA will take no 
further action to determine disputed material facts pursuant to this 
section or 809.470 if the Department of Justice or a State prosecuting 
authority advises VA that additional proceedings to make such a 
determination would prejudice Federal or State legal proceedings.
    (f) If the suspending official agrees that there is a genuine 
dispute of material facts, the suspending official shall refer the 
dispute to the designee for resolution pursuant to 809.470.



Sec. 809.470  Fact-finding procedures.

    The provisions of this section constitute the procedures to be used 
to resolve genuine disputes of fact pursuant to 809.406-3 and 809.407-3 
of this chapter. The DSPE shall appoint a designee to conduct the fact-
finding. OGC shall represent VA at any fact-finding hearing and may 
present witnesses for VA and question any witnesses presented by the 
contractor. The hearings shall be conducted in Washington, DC. The 
proceedings before the fact-finder will be limited to a finding of the 
facts in dispute, as determined by the debarring or suspending official. 
The fact-finder will establish the date for the fact-finding hearing, 
normally to be held within 45 working days of the submission of the 
dispute.
    (a) The Government's representative and the contractor will have an 
opportunity to present evidence relevant to the facts at issue. The 
contractor may appear in person or through a representative at the fact-
finding hearing. The contractor may submit documentary evidence, present 
witnesses, and confront any person the agency presents.
    (b) Witnesses may testify in person. Witnesses will be reminded of 
the official nature of the proceedings and that any false testimony 
given is subject to criminal prosecution. Witnesses are subject to 
cross-examination. Hearsay evidence may be presented and will be given 
appropriate weight by the fact-finder.
    (c) The proceedings shall be transcribed and a copy of the 
transcript shall be made available at cost to the contractor upon 
request, unless the contractor and the fact-finder, by mutual agreement, 
waive the requirement for a transcript.
    (d) The fact-finder shall determine the disputed fact(s) by a 
preponderance of the evidence. As required by FAR 9.406-3(d)(2)(i) and 
9.407-3(d)(2)(i), written findings of fact shall be prepared by the 
fact-finder. A copy of the findings of fact shall be provided to the 
debarring or suspending official, the Government's representative, and 
the contractor.

    Subpart 809.5_Organizational and Consultant Conflicts of Interest



Sec. 809.503  Waiver.

    The HCA is delegated authority to waive any general rule or 
procedure of FAR Subpart 9.5. As provided at FAR 9.503, this authority 
may not be redelegated.



Sec. 809.504  Contracting officer responsibilities.

    (a) A contracting officer must determine whether awarding a contract 
will result in an actual or potential conflict of interest for the 
contractor.
    (1) The contracting officer will make a conflict of interest 
determination after reviewing information submitted by offerors, 
evaluating information gathered under FAR 9.506, and exercising his or 
her own judgment.
    (2) In evaluating possible organizational conflicts of interest, the 
contracting officer may obtain the advice of legal counsel and the 
assistance of technical specialists.
    (b) If the contracting officer determines that there is no way to 
avoid or mitigate an organizational conflict of interest arising from a 
contract award,

[[Page 187]]

the contracting officer may disqualify the offeror from award under FAR 
9.504(e).
    (c) Even if awarding a contract will result in an organizational 
conflict of interest, the contracting officer may request a waiver from 
his or her HCA if awarding the contract is in the best interests of the 
Government.
    (1) Before granting a waiver request under this paragraph, the HCA 
must obtain the concurrence of OGC.
    (2) If the HCA grants a waiver request, the contracting officer may 
set contract terms and conditions to reduce any organizational conflict 
of interest to the greatest extent possible.
    (d) In any solicitation for the services addressed at FAR 9.502, the 
contracting officer must require that each offeror submits a statement 
with its offer disclosing all facts relevant to an existing or potential 
organizational conflict of interest involving the contractor or any 
subcontractor during the life of the contract (see 809.507-1(b) and 
852.209-70).



Sec. 809.507  Solicitation provisions and contract clause.



Sec. 809.507-1  Solicitation provisions.

    (a) While conflicts of interest may not presently exist, award of 
certain types of contracts may create potential future organizational 
conflicts of interest (see FAR 9.508 for examples). If a solicitation 
may create a potential future organizational conflict of interest, the 
contracting officer shall insert a provision in the solicitation 
imposing an appropriate restraint on the contractor's eligibility for 
award of contracts in the future. Under FAR 9.507-1, the restraint must 
be appropriate to the nature of the conflict and may exclude the 
contractor from award of one or more contracts in the future.
    (b) The clause at 852.209-70, Organizational conflicts of interest, 
must be included in any solicitation for the services addressed in FAR 
9.502.

                        PART 810_MARKET RESEARCH


Sec. 810.001 Market research policy.

Sec. 810.002 Market research procedures.

    Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c) and (d); and 48 
CFR 1.301-1.304.

    Source: 74 FR 64630, Dec. 8, 2009, unless otherwise noted.



Sec. 810.001  Market research policy.

    When conducting market research, VA contracting teams shall use the 
VIP database, at http://www.VetBiz.gov, in addition to other sources of 
information.



Sec. 810.002  Market research procedures.

    Contracting officers shall record VIP queries in the solicitation 
file by printing the results of the search(s) along with specific query 
used to generate the search(s).

                    PART 811_DESCRIBING AGENCY NEEDS

                        Subpart 811.0_Definitions

Sec.

Sec. 811.001 Definitions.

      Subpart 811.1_Selecting and Developing Requirements Documents


Sec. 811.103 Market acceptance.

Sec. 811.103-70 Technical industry standards.

Sec. 811.104 Use of brand name or equal purchase descriptions.

Sec. 811.104-70 Brand name or equal purchase descriptions.

Sec. 811.104-71 Purchase description clauses.

Sec. 811.104-72 Limited application of brand name or equal.

Sec. 811.104-73 Bid samples.

Sec. 811.104-74 Bid evaluation and award.

Sec. 811.104-75 Procedure for negotiated procurements.

Sec. 811.105 Items peculiar to one manufacturer.

Sec. 811.107 Contract clauses.

       Subpart 811.2_Using and Maintaining Requirements Documents


Sec. 811.202 Maintenance of standardization documents.

Sec. 811.204 Contract clause.

             Subpart 811.4_Delivery or Performance Schedules


Sec. 811.404 Contract clause.

                    Subpart 811.5_Liquidated Damages


Sec. 811.501 Policy.

Sec. 811.503 Contract clause.

                Subpart 811.6_Priorities and Allocations


Sec. 811.602 General.


[[Page 188]]


    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.



Sec. 811.001  Definitions.

    For the purposes of this part:
    Brand name product means a commercial product described by brand 
name and make or model number or other appropriate nomenclature by which 
the product is offered for sale to the public by the particular 
manufacturer, producer or distributor.
    Salient characteristics means those particular characteristics that 
specifically describe the essential physical and functional features of 
the material or service required. They are features that are identified 
in the specifications as a mandatory requirement that a proposed 
``equal'' product or material must possess for the bid to be considered 
responsive.

      Subpart 811.1_Selecting and Developing Requirements Documents



Sec. 811.103  Market acceptance.



Sec. 811.103-70  Technical industry standards.

    Where items are required to conform to technical industry standards, 
such as those adopted by: Underwriters Laboratories, Inc.; Factory 
Mutual Laboratories; American Gas Association; American Society of 
Mechanical Engineers; National Electrical Manufacturers Association; 
American Society of Heating, Refrigerating and Air-Conditioning 
Engineers; or similar organizations, where such standards are generally 
recognized and accepted in the industry involved, the invitation for 
bids, request for proposals or request for quotations will so state. In 
no instance, where there is a multiple choice of laboratories, shall the 
invitation for bid, request for proposal, or request for quotation 
indicate that the label or certificate of only one such laboratory is 
acceptable. The contracting officer shall include the provision at 
852.211-72, Technical industry standards, in solicitations requiring 
conformance to technical industry standards unless comparable provisions 
are contained in the item specification.



Sec. 811.104  Use of brand name or equal purchase descriptions.



Sec. 811.104-70  Brand name or equal purchase descriptions.

    (a) The specification writer may use purchase descriptions that 
contain references to one or more brand name products only in accordance 
with 811.104-71 through 811.104-75.
    (b) Purchase descriptions that contain references to one or more 
brand name products must be followed by the words ``or equal,'' except 
when the acquisition of a specific brand name is fully justified under 
FAR Subpart 6.3 and 806.3. If more than one brand name is acceptable, 
the contracting officer should list the known acceptable brand name 
products in the solicitation.
    (c) Where a ``brand name or equal'' purchase description is used, 
the contracting officer must give bidders an opportunity to offer 
products other than those specifically referenced by brand name. 
Following bid opening or receipt of offers, the contracting officer must 
determine if non-``brand name'' substitute products fully meet the 
salient characteristics listed in the solicitation.
    (d) When using a ``brand name or equal'' purchase description, the 
specification writer must set forth those salient physical, functional, 
or other characteristics of the referenced products that are essential 
to the minimum needs of the Government. For example, when 
interchangeability of parts is required, the specification writer must 
specify this requirement. The purchase description must contain the 
following information to the extent available:
    (1) Complete common generic identification of the item required.
    (2) Applicable model, make, or catalog number for each brand name 
product referenced and identity of the commercial catalog in which it 
appears.
    (3) Name of manufacturer, producer, or distributor of each brand 
name product referenced (and address if not well known).
    (4) Any other information necessary to describe the item required.

[[Page 189]]

    (e) When necessary to adequately describe the item required, the 
contracting officer may use an applicable commercial catalog description 
or pertinent extract if the description is identified in the 
solicitation as being that of the particular named manufacturer, 
producer, or distributor. The contracting officer must insure that a 
copy of any catalog referenced (except a parts catalog) is available on 
request for review by bidders at the purchasing office.
    (f) Except as noted in paragraph (d) of this section, the 
specification writer must not include in a purchase description either 
minimum or maximum restrictive dimensions, weights, materials, or other 
salient characteristics that are unique to a brand name product or that 
would tend to eliminate competition or other products that are only 
marginally outside the restrictions. However, the specification writer 
may include in a purchase description restrictive dimensions, weights, 
materials, or other salient characteristic if:
    (1) The user determines in writing that the restrictions are 
essential to the Government's requirements;
    (2) The specification writer includes the brand name of the product 
in the purchase description; and,
    (3) The contracting officer makes all other determinations required 
by 811.105.
    (g) The contracting officer must include in the contract file, as 
appropriate, written justifications for using the ``brand name or 
equal'' description, the contracting officer's determinations, and 
bidder submissions.



Sec. 811.104-71  Purchase description clauses.

    (a) When a solicitation uses ``brand name or equal'' purchase 
descriptions, the contracting officer must include in the solicitation 
the clause at 852.211-73, Brand name or equal, and the provision set 
forth at FAR 52.214-21, Descriptive Literature. The contracting officer 
must review the requirements at FAR 14.202-5 when using the descriptive 
literature provision.
    (b) When a ``brand name or equal'' purchase description is included 
in an invitation for bids, the contracting officer shall insert the 
following after each item so described in the solicitation, for 
completion by the bidder:

    Bidding on:

 Manufacturer name______________________________________________________

 Brand__________________________________________________________________

 No.____________________________________________________________________



Sec. 811.104-72  Limited application of brand name or equal.

    If the contracting officer determines that the clause at 852.211-73, 
Brand name or equal, applies to only certain line items of a 
solicitation, the requirements of 811.104-71(b) apply to those line 
items and the contracting officer must include a statement in the 
solicitation as follows:

    The clause entitled ``Brand name or equal'' applies only to the 
following line items: [List the line items to which the clause applies]



Sec. 811.104-73  Bid samples.

    (a) When a solicitation contains ``brand name or equal'' purchase 
descriptions, the contracting officer must not require a bidder who 
offers brand name products, including component parts, referenced in the 
descriptions to furnish bid samples of the referenced brand name 
products.
    (b) A solicitation may require the submission of bid samples in the 
case of a bidder offering ``or equal'' products. If bid samples are 
required, the contracting officer must include in the solicitation the 
provision set forth at FAR 52.214-20, Bid Samples.
    (c) A bidder must furnish all descriptive literature in accordance 
with and for the purpose set forth in the ``Brand Name or Equal'' 
clause, 852.211-73(c)(1) and (c)(2), even though bid samples may not be 
required.



Sec. 811.104-74  Bid evaluation and award.

    (a) A bid offering products that differ from brand name products 
referenced in a ``brand name or equal'' purchase description must be 
considered for award if the contracting officer determines in accordance 
with the terms of the clause at 852.211-73, Brand name or equal, that 
the offered products are clearly identified in the bid and are equal in 
all material respects to the products specified.

[[Page 190]]

    (b) In award documents, the contracting officer must include, or 
incorporate by reference, an identification of the specific products 
that the contractor is to furnish. The identification must include any 
brand name and make or model number, descriptive material, and any 
modifications of brand name products specified in the bid. This 
requirement also applies when the descriptions of the end items contain 
``brand name or equal'' purchase descriptions of component parts or of 
accessories related to the end item, and the clause at 852.211-73, Brand 
name or equal, was applied to the component parts or accessories (see 
811.104-72).



Sec. 811.104-75  Procedure for negotiated procurements.

    (a) The specification writer and contracting officer must use the 
policies and procedures prescribed in 811.104-70 through 811.104-74 as a 
guide in developing adequate purchase descriptions for negotiated 
procurements.
    (b) The contracting officer may adapt the clause at 852.211-73, 
Brand name or equal, for use in negotiated procurements. When use of the 
clause is not practical (as may be the case in unusual and compelling 
urgency purchases), the contracting officer must inform suppliers that 
proposals offering products different from the products referenced by 
brand name will be considered if the contracting officer determines that 
the offered products are equal in all material respects to the products 
referenced. The contracting officer must place decisions under this 
paragraph in writing for the contract file, as appropriate.



Sec. 811.105  Items peculiar to one manufacturer.

    (a) Except as provided in paragraph (b) of this section, the 
specification writer must write specifications in accordance with FAR 
11.002.
    (b)(1) When the specification writer determines that a particular 
physical or functional characteristic of only one product will meet the 
minimum requirements of VA (see FAR 11.105) or that a ``brand name or 
equal'' purchase description must be used (see FAR 11.104), the 
specification writer must identify the item(s) for the contracting 
officer and do one of the following:
    (i) Provide a full written justification of the reason the 
particular characteristic is essential to the Government's requirements.
    (ii) Explain why the ``brand name or equal'' purchase description is 
necessary.
    (2) The contracting officer makes the final determination whether 
restrictive specifications or ``brand name or equal'' purchase 
descriptions will be included in the solicitation.



Sec. 811.107  Contract clauses.

    (a) Insert the clause at 852.211-70, Service data manuals, paragraph 
(a), in solicitations and requests for proposals for technical medical 
and other technical equipment and devices issued by a field facility 
unless the facility Chief, Engineering Service, indicates that the 
service data manuals are not needed. The purpose of the clause is to 
require the manufacturer to provide VA a manual or groups of manuals 
that will allow for the in-house repair of the equipment purchased.
    (b) Insert the clause at 852.211-70, Service data manuals, paragraph 
(b), in solicitations and requests for proposals for mechanical 
equipment (other than technical medical and other technical equipment 
and devices) issued by a field station.

       Subpart 811.2_Using and Maintaining Requirements Documents



Sec. 811.202  Maintenance of standardization documents.

    (a) Military and departmental specifications. Contracting officers 
may, when it is advantageous to VA, use these specifications when 
procuring supplies and equipment costing less than the simplified 
acquisition threshold. When purchasing items of perishable subsistence, 
contracting officers may take into account only those exemptions set 
forth in paragraphs (b)(2) and (b)(3) of this section.
    (b) Nutrition and food service specifications. (1) VA has adopted 
for use in the procurement of packinghouse products the purchase 
descriptions and specifications set forth in the Institutional

[[Page 191]]

Meat Purchase Specifications (IMPS) and the IMPS General Requirements, 
which have been developed by the U.S. Department of Agriculture. 
Purchase descriptions and specifications for dairy products, poultry, 
eggs, fresh and frozen fruits and vegetables, as well as certain 
packinghouse products selected from the IMPS especially for VA use, are 
contained in Part IV of the Federal Supply Catalog, Stock List, FSC 
Group 89, Subsistence, Publication No. C8900-SL.
    (2) The military specifications for meat and meat products contained 
in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, 
Subsistence, must be used by VA only when purchasing such items of 
subsistence from the Defense Logistics Agency (DLA). Military 
specifications for poultry, eggs, and egg products contained in Part IV 
of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, 
may be used when purchasing either from DLA or from local dealers.
    (3) Except as authorized in part 846, a contracting officer must not 
deviate from the specifications contained in Part IV of the Federal 
Supply Catalog, Stock List, FSC Group 89, Subsistence, and the IMPS 
without prior approval from the DSPE.
    (4) Items of meat, cured pork and poultry purchased under the 
Subsistence Prime Vendor national contract or other local procurement 
sources should be purchased via Commercial Item Descriptions (CID) that 
require all products meet USDA Grading standards and/or the IMPS as 
applicable.
    (c) Department of Veterans Affairs specifications. (1) The Director, 
Publications Staff, is responsible for developing, publishing, and 
distributing VA specifications covering printing and binding.
    (2) VA specifications, as they are revised, are placed in stock in 
the VA Forms and Publications depot. The contracting officer may 
requisition facility requirements for these specifications from that 
source.
    (d) Government paper specification standards. (1) Invitations for 
bids, requests for proposals, purchase orders, or other procurement 
instruments covering the purchase of paper stocks to be used in 
duplicating or printing, or which specify the paper stocks to be used in 
buying printing, binding, or duplicating, must require that the paper 
stocks be in accordance with the Government Paper Specification 
Standards issued by the Congressional Joint Committee on Printing.
    (2) All binding or rebinding of books, magazines, pamphlets, 
newspapers, slip cases, and boxes must be procured in accordance with 
Government Printing Office (GPO) specifications and must be procured 
from the servicing GPO Regional Printing Procurement Office or, when 
appropriate, from commercial sources.
    (3) There are three types of binding/rebinding: Class A (hard 
cover); Perfect (glued); and Lumbinding (sewn). The most suitable type 
of binding must be procured to satisfy the requirements, based upon the 
intended use of the bound material.



Sec. 811.204  Contract clause.

    Insert the clause at 852.211-75, Product specifications when product 
specifications are cited in an invitation for bids or a request for 
proposals.

             Subpart 811.4_Delivery or Performance Schedules



Sec. 811.404  Contract clause.

    When delivery is required by or on a particular date for f.o.b. 
destination contracts, the contracting officer must add a statement 
following the Time of Delivery clause in FAR 52.211-8 that the delivery 
date specified is the date by which the shipment is to be delivered, not 
the shipping date. In f.o.b. origin contracts, the contracting officer 
must add a statement following this clause that the date specified is 
the date shipment is to be accepted by the carrier.

                    Subpart 811.5_Liquidated Damages



Sec. 811.501  Policy.

    The contracting officer must not routinely include a liquidated 
damages provision in supply or construction contracts, regardless of 
dollar amount.

[[Page 192]]

The decision to include liquidated damages provisions must conform to 
the criteria in FAR 11.501. In making this decision, the contracting 
officer must consider whether the necessity for timely delivery or 
performance as required in the contract schedule is so critical that a 
probable increase in contract price is justified. The contracting 
officer must not use a liquidated damages provision for any of the 
following reasons:
    (a) As insurance against selection of a non-responsible bidder.
    (b) As a substitute for efficient contract administration.
    (c) As a penalty for failure to perform on time.



Sec. 811.503  Contract clause.

    When the contracting officer determines that the Liquidated damages 
clause prescribed in FAR 52.211-11 or 52.211-12 must be used and where 
partial performance by the contractor may be to the advantage of the 
Government, the contracting officer must include the clause in 852.211-
74, Liquidated damages, in the contract.

                Subpart 811.6_Priorities and Allocations



Sec. 811.602  General.

    (a) Priorities and allocations of critical materials are controlled 
by the Department of Commerce. Essentially, priorities and allocations 
of critical materials are restricted to projects having a direct 
connection with supporting current defense needs. VA is not authorized 
to assign a priority rating to its purchase orders or contracts 
involving the acquisition or use of critical materials.
    (b) When it has been technically established that it is not feasible 
to use a substitute material, the Department of Commerce has agreed to 
assist the VA in obtaining critical materials for maintenance and repair 
projects. The Department of Commerce will also, when possible, render 
assistance in connection with the purchase of new items, which may be in 
short supply because of their use in connection with the defense effort.
    (c) A contracting officer having problems acquiring critical 
materials must ascertain all the facts necessary to enable the 
Department of Commerce to render assistance to VA in acquiring these 
materials. The contracting officer must submit a request for assistance 
to the DSPE containing the following information:
    (1) A description of the maintenance and repair project or the new 
item.
    (2) The critical material and the amount required.
    (3) The contractor's sources of supply, including any addresses. If 
the source is other than the manufacturer or producer, also list the 
name and address of the manufacturer or producer.
    (4) The VA contract or purchase order number.
    (5) The contractor's purchase order number, if known, and the 
delivery time requirement as stated in the solicitation or offer.
    (6) The additional time the contractor claims is necessary to 
deliver the materials if priority assistance is not provided.
    (7) The nature and extent of the emergency that will be generated at 
the station, such as any of the following:
    (i) Damage to the physical plant.
    (ii) Impairment of the patient care program.
    (iii) Creation of safety hazards.
    (iv) Any other pertinent condition that could result because of 
failure to secure assistance in obtaining the critical materials.
    (8) If applicable, a statement that the item required is for use in 
a construction contract that was authorized by the Director, Office of 
Construction and Facilities Management, to be awarded and administered 
by the facility contracting officer.

[[Page 193]]

                PART 812_ACQUISITION OF COMMERCIAL ITEMS

          Subpart 812.1_Acquisition of Commercial Items_General

Sec.

Sec. 812.102 Applicability.

   Subpart 812.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items


Sec. 812.301 Solicitation provisions and contract clauses for the 
          acquisition of commercial items.

Sec. 812.302 Tailoring of provisions and clauses for the acquisition of 
          commercial items.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

          Subpart 812.1_Acquisition of Commercial Items_General



Sec. 812.102  Applicability.

    (a) This part shall be used for the acquisition of supplies and 
services that meet the definition of commercial items at FAR 2.101.
    (b) Contracting officers shall use the policies in this part in 
conjunction with the policies and procedures for the solicitation, 
evaluation, and award prescribed in Parts 813, Simplified Acquisition 
Procedures, 814, Sealed Bidding, and 815, Contracting by Negotiation, as 
appropriate for the particular acquisition.
    (c) Contracts for the acquisition of commercial items are subject to 
the policies of other parts of this chapter. When a policy in another 
part of this chapter differs from a policy in this part, this part 812 
applies to the acquisition of commercial items.

   Subpart 812.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 812.301  Solicitation provisions and contract clauses for the 
          acquisition of commercial items.

    (a) Regardless of provisions in other parts of the VAAR, contracting 
officers may use, as appropriate, only those provisions and clauses 
referred to in this part when acquiring commercial items.
    (b) Contracting officers may use the provisions and clauses in the 
following VAAR sections, as appropriate and in accordance with the 
prescriptions for the provisions and clauses, in requests for 
quotations, solicitations, and contracts:
    (1) 852.203-70, Commercial advertising.
    (2) 852.203-71, Display of Department of Veterans Affairs Hotline 
poster.
    (3) 852.207-70, Report of employment under commercial activities.
    (4) 852.209-70, Organizational conflicts of interest.
    (5) 852.211-71, Special notice.
    (6) 852.211-72, Technical industry standards.
    (7) 852.211-73, Brand name or equal.
    (8) 852.211-75, Product specifications.
    (9) 852.214-70, Caution to bidders--bid envelopes.
    (10) 852.214-71, Restrictions on alternate item(s).
    (11) 852.214-72, Alternate item(s).
    (12) 852.214-73, Alternate packaging and packing.
    (13) 852.214-74, Bid samples.
    (14) 852.216-70, Estimated quantities.
    (15) 852.228-71, Indemnification and insurance.
    (16) 852.229-70, Sales and use taxes.
    (17) 852.233-70, Protest content/alternative dispute resolution.
    (18) 852.233-71, Alternate protest procedure.
    (19) 852.237-7, Indemnification and medical liability insurance.
    (20) 852.237-70, Contractor responsibilities.
    (21) 852.246-70, Guarantee.
    (22) 852.246-71, Inspection.
    (23) 852.246-72, Frozen processed foods.
    (24) 852.252-70, Solicitation provisions or clauses incorporated by 
reference.
    (25) 852.270-1, Representatives of contracting officers.
    (26) 852.270-2, Bread and bakery products--quantities.
    (27) 852.270-3, Purchase of shellfish.
    (28) 852.271-72, Time spent by counselee in counseling process.
    (29) 852.271-73, Use and publication of counseling results.
    (30) 852.271-74, Inspection.

[[Page 194]]

    (31) 852.271-75, Extension of contract period.
    (c) When appropriate in accordance with the prescriptions for the 
clauses, the contracting officer may use the clauses in the following 
VAAR sections in requests for quotations, solicitations, and contracts 
for the acquisition of commercial items if the contracting officer 
determines that the use is consistent with customary commercial 
practices:
    (1) 852.211-70, Service data manuals.
    (2) 852.211-74, Liquidated damages.
    (d) All requests for quotations, solicitations, and contracts for 
commercial item services to be provided to beneficiaries must include 
the clause at 852.271-70, Nondiscrimination in services provided to 
beneficiaries.
    (e) Micro-purchases that use the procedures of this part in 
conjunction with part 813 do not require clauses unless the contracting 
officer determines that the use of clauses serves the Government's best 
interest.
    (f) When soliciting for health care resources that are commercial 
services or the use of medical equipment or space under the authority of 
part 873 and 38 U.S.C. 8151-8153, the provisions and clauses in the 
following VAAR sections may be used in accordance with the prescriptions 
contained therein or elsewhere in the VAAR:
    (1) 852.273-70, Late offers.
    (2) 852.273-71, Alternative negotiation techniques.
    (3) 852.273-72, Alternative evaluation.
    (4) 852.273-73, Evaluation--health-care resources.
    (5) 852.273-74, Award without exchanges.

(38 U.S.C. 8151-8153)



Sec. 812.302  Tailoring of provisions and clauses for the acquisition of 
          commercial items.

    (a) Contracting officers may tailor solicitations to be inconsistent 
with customary commercial practice if they prepare and obtain approval 
of a waiver under paragraph (c) of this section.
    (b) The contracting officer must prepare the waiver in accordance 
with FAR 12.302(c). The waiver is subject to the tailoring prohibitions 
in FAR 12.302(b)(1) through 12.302(b)(6).
    (c) The contracting officer must obtain approval for waivers from 
the following:
    (1) The Chief, Acquisition Assistance Division, for individual 
contracts.
    (2) The Chief, Acquisition Program Management Division, for a class 
of contracts.
    (d) Contracting officers must submit waiver requests no later than 
the solicitation issue date.
    (e) Contracting officers must retain approved requests in the 
contract file.

[[Page 195]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 813_SIMPLIFIED ACQUISITION PROCEDURES

                        Subpart 813.1_Procedures

Sec.

Sec. 813.106 Soliciting competition, evaluation of quotations or offers, 
          award and documentation.

Sec. 813.106-3 Award and documentation.

Sec. 813.106-70 Oral purchase orders.

     Subpart 813.2_Actions at or Below the Micro-Purchase Threshold


Sec. 813.202 Purchase guidelines.

              Subpart 813.3_Simplified Acquisition Methods


Sec. 813.302 Purchase orders.

Sec. 813.302-5 Clauses.

Sec. 813.307 Forms.

    Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c) and (d); and 48 
CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                        Subpart 813.1_Procedures



Sec. 813.106  Soliciting competition, evaluation of quotations or 
          offers, award and documentation.

    (a) Contracting officers may use other than competitive procedures 
to enter into a contract with a SDVOSB or VOSB when the amount exceeds 
the micro-purchase threshold up to $5 million.
    (b) Requirements exceeding $25,000 must be synopsized in accordance 
with FAR Part 5.

[74 FR 64630, Dec. 8, 2009]



Sec. 813.106-3  Award and documentation.

    The contracting officer may record a quotation on an Abstract of 
Offers (SF 1409 or 1419), the purchase request if space permits, or 
other supplemental sheet or form, such as VA Form 10-2237b, Request for 
Dietetic Supplies.



Sec. 813.106-70  Oral purchase orders.

    When advantageous to VA, the contracting officer may use an oral 
purchase order for transactions not in excess of $3,000. This limitation 
does not apply to delivery orders against existing contracts, e.g., 
delivery orders against Federal Supply Schedule contracts. The 
contracting officer must assign a purchase order number to the 
transaction. A copy of any electronically generated purchase order may 
be used as a property voucher and receiving report to document receipt.

     Subpart 813.2_Actions at or Below the Micro-Purchase Threshold



Sec. 813.202  Purchase guidelines.

    Open market micro-purchases shall be equitably distributed among all 
qualified SDVOSBs or VOSBs, respectively, to the maximum extent 
practicable.

[74 FR 64630, Dec. 8, 2009]

              Subpart 813.3_Simplified Acquisition Methods



Sec. 813.302  Purchase orders.



Sec. 813.302-5  Clauses.

    When using the VA Form 90-2138 or 90-2138-ADP for maintenance 
contracts involving services performed on Government property that have 
the potential for property damage and liability claims, the contracting 
officer shall insert in the purchase order the Contractor's 
Responsibilities clause found at 852.237-70. Applicable maintenance 
contracts include, but are not limited to, window washing, pest control, 
and elevator maintenance.



Sec. 813.307  Forms.

    (a) The following forms provide a purchase or delivery order, 
vendor's invoice, and receiving report:
    (1) VA Form 90-2138, Order for Supplies or Services.
    (2) VA Form 90-2139, Order for Supplies or Services (Continuation).
    (3) VA Form 90-2138-ADP, Purchase Order for Supplies or Services.

[[Page 196]]

    (4) VA Form 2139-ADP, Order for Supplies and Services 
(Continuation).
    (b) The contracting officer may use the forms specified in 
paragraphs (a)(1) through (a)(4) of this section instead of OF 347, 
Order for Supplies or Services, OF 348, Order for Supplies or Services 
Schedule--Continuation, and SF 1449, Solicitation/Contract/Order for 
Commercial Items.
    (c) The contracting officer or other properly delegated official 
(see 801.670-3) may use the following order forms when ordering the 
indicated medical, dental, and ancillary services totaling up to $10,000 
per authorization when such services are not available under existing 
contracts:
    (1) VA Form 10-7078, Authorization and Invoice for Medical and 
Hospital Services.
    (2) VA Form 10-7079, Request for Outpatient Medical Services.
    (3) VA Form 10-2570d, Dental Record Authorization and Invoice for 
Outpatient Service.
    (d) In authorizing patient travel as set forth in VA manual MP-1, 
Part II, Chapter 3, the contracting officer or other properly delegated 
official (see 801.670-3) may use VA Form 10-2511, Authority and Invoice 
for Travel by Ambulance or Other Hired Vehicle, as provided by that 
manual.
    (e) The contracting officer must use SF 182, Request, Authorization, 
Agreement, and Certification of Training, for procurement of training.
    (f) The contracting officer must use VA Form 10-2421, Prosthetics 
Authorization for Items or Services, for indicated services not in 
excess of $300.

                         PART 814_SEALED BIDDING

                   Subpart 814.1_Use of Sealed Bidding

Sec.

Sec. 814.104 Types of contracts.

Sec. 814.104-70 Fixed-price contracts with escalation.

                   Subpart 814.2_Solicitation of Bids


Sec. 814.201 Preparation of invitations for bids.

Sec. 814.201-6 Solicitation provisions.

Sec. 814.203 Methods of soliciting bids.

Sec. 814.203-1 Transmittal to prospective bidders.

Sec. 814.204 Records of invitations for bids and records of bids.

Sec. 814.208 Amendment of invitation for bids.

                    Subpart 814.3_Submission of Bids


Sec. 814.301 Responsiveness of bids.

Sec. 814.302 Bid submission.

Sec. 814.304 Submission, modification, and withdrawal of bids.

           Subpart 814.4_Opening of Bids and Award of Contract


Sec. 814.401 Receipt and safeguarding of bids.

Sec. 814.402 Opening of bids.

Sec. 814.403 Recording of bids.

Sec. 814.404 Rejection of bids.

Sec. 814.404-1 Cancellation of invitations after opening.

Sec. 814.404-2 Rejection of individual bids.

Sec. 814.404-70 Questions involving the responsiveness of a bid.

Sec. 814.407 Mistakes in bids.

Sec. 814.407-3 Other mistakes disclosed before award.

Sec. 814.407-4 Mistakes after award.

Sec. 814.408 Award.

Sec. 814.408-70 Award when only one bid is received.

Sec. 814.408-71 Recommendation for award (construction).

Sec. 814.409 Information to bidders.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                   Subpart 814.1_Use of Sealed Bidding



Sec. 814.104  Types of contracts.



Sec. 814.104-70  Fixed-price contracts with escalation.

    When fixed price contracts with escalation are authorized under 
816.102(a), a contracting officer must comply with FAR 16.203-1 through 
16.203-4.

                   Subpart 814.2_Solicitation of Bids



Sec. 814.201  Preparation of invitations for bids.

    (a) An invitation for bids for supplies, equipment, and services 
must be serially numbered at the time of issue. Numbers assigned locally 
must consist of the facility or VA National Acquisition Center division 
number, the serial number of the invitation, and the fiscal year in 
which the VA facility issues the invitation, e.g., 533-24-07 for the 
24th invitation issued by VA facility

[[Page 197]]

533 in Fiscal Year 2007. A series beginning with the number 1 must be 
started each fiscal year. Numbers assigned from a national register may 
be sequential, without regard to year, and use whatever numbering system 
assigned by the national system or VA's Electronic Contract Management 
System (eCMS). VHA shall use eCMS for all solicitation numbering.
    (1) An invitation for bid for supplies, equipment, and services that 
is numbered locally must be numbered in the series of the year in which 
it is issued, will be accepted, and will become a contract in the same 
fiscal year but, because of procurement lead time, will not be performed 
until the next fiscal year.
    (2) An invitation for bid that is numbered locally must be numbered 
in the next fiscal year series if it is issued in one fiscal year but 
the contract will become effective and will be performed only in the 
next fiscal year.
    (b) An invitation for a construction contract must bear the 
applicable invitation for bid number and the project number, if 
assigned.
    (c) An invitation for bid containing a summary bid request must 
include the following statement:

    ``The award will be made on either an individual item basis or 
summary bid basis, whichever results in the lowest cost to the 
Government. Therefore, to assure proper evaluation of all bids, a bidder 
quoting a summary bid price must also quote a price on each individual 
item included in the summary bid price.''

    (d) When a contracting officer determines that it will be to the 
Government's advantage to make an award by group or groups of items, the 
contracting officer must include a provision for the award by group or 
groups of items in the invitation for bids. This may apply when the 
items in the group or groups are readily available from sources to be 
solicited; and one of the following apply:
    (1) It is desirable to award a minimum number of contracts.
    (2) Furniture or fixtures are required for a single project and 
uniformity of design is desirable.
    (3) The articles required will be assembled and used as a unit.
    (e) A solicitation for a construction contract must contain a 
statement on the order of priority in which VA will award any 
alternative bid items, based on the relative importance of the items, 
VA's cost estimate, and the amount of funds available, when the 
following apply:
    (1) VA intends to make a single aggregate award for all items in the 
solicitation within certain fiscal limitations.
    (2) The solicitation asks for prices on an item and alternate item 
basis.
    (f) A bid item schedule in a solicitation issued in compliance with 
paragraph (e) of this section should be structured substantially as 
follows:

    A single award will be made on Item No. 1, but in the event the 
offer exceeds the funds available, a single award will be made on Item 
No. 2 or Item No. 3, in that order, based on available funding. Offerors 
should quote a price on each item listed.
    Item No. 1--Furnish all labor, material, equipment, etc., to paint 
Buildings No. 1, 2, and 3: $----.
    Alternate items in order of priority:
    Item No. 2--Furnish all labor, material, equipment, etc., to paint 
Building Nos. 1 and 2: $----.
    Item No. 3--Furnish all labor, material, equipment, etc., to paint 
Building No. 1: ----.



Sec. 814.201-6  Solicitation provisions.

    (a) The contracting officer must place the provision entitled 
``Caution to Bidders-Bid Envelopes,'' as set forth in 852.214-70, in all 
invitations for bids where bid submissions are by other than electronic 
means.
    (b) In an invitation for bid for supplies, equipment, or services 
(other than construction), the contracting officer must define the 
extent to which VA will authorize and consider alternate bids. VA will 
consider for acceptance an alternate specified on construction projects 
only as a part of the basic item.
    (1) When VA will consider an alternate item only if no bids or 
insufficient bids are received on an item desired, the contracting 
officer must include the provision set forth in 852.214-71, Restrictions 
on alternate item(s), in the invitation.
    (2) When VA will consider an alternate item on an equal basis with 
the

[[Page 198]]

item specified, the contracting officer must include the provision set 
forth in 852.214-72, Alternate items, in the invitation.
    (3) In addition to the provision referenced in paragraph (b)(1) or 
(2) of this section, the contracting officer must include the provision 
set forth in 852.214-73, Alternate packaging and packing, in the 
invitation when bids will be allowed on different packaging, unit 
designation, etc.
    (c) When the contracting officer determines that samples are 
necessary to the proper awarding of a contract, the contracting officer 
must include the provision set forth in 852.214-74, Bid samples, in the 
solicitation, along with the provision in FAR 52.214-20, Bid samples.



Sec. 814.203  Methods of soliciting bids.



Sec. 814.203-1  Transmittal to prospective bidders.

    The contracting officer should include either a bid envelope or OF 
17, Sealed Bid Label, with each invitation for bids furnished by mail or 
hand delivered to prospective bidders.



Sec. 814.204  Records of invitations for bids and records of bids.

    (a) The issuing office must establish and maintain a single register 
on a fiscal year basis for all solicitations. For each invitation to bid 
or request for proposal, the register must include the following:
    (1) Bid or proposal number.
    (2) Date of issue.
    (3) Date of opening.
    (4) Commodity or service involved.
    (5) Disposition (i.e., contract number or purchase order number or, 
when applicable, no award).
    (b) Maintenance of the contract file prescribed by Part 804 and 
retention of canceled Invitation for Bid files will fulfill the 
requirements set forth in FAR 14.204(b).



Sec. 814.208  Amendment of invitation for bids.

    The contracting officer must send amendments to holders of drawings 
and specifications by certified mail, return receipt requested, or any 
other method that provides evidence of receipt. The contracting officer 
may send amendments by telegram, facsimile, or other method of rapid 
delivery that provides evidence of receipt, if time does not permit 
mailing.

                    Subpart 814.3_Submission of Bids



Sec. 814.301  Responsiveness of bids.

    Where a contracting officer cannot administratively determine, in 
accordance with FAR 14.301, the timeliness of the submission of a bid, 
modification, or withdrawal, the contracting officer must submit the 
matter through the DSPE to the Comptroller General for a decision. The 
submission must include copies of all pertinent papers.



Sec. 814.302  Bid submission.

    A bid hand-carried by the bidder or his agent will be considered 
late unless delivered to the addressee designated in the bid invitation 
before the time set for opening.



Sec. 814.304  Submission, modification, and withdrawal of bids.

    (a) A notification to late bidders must specify the final date by 
which VA must receive evidence. This date must be within the time 
allowed by the apparent low bidder for acceptance of the low bidder's 
bid.
    (b) All bids received by mail or delivered in person by the bidder 
(or telegram where authorized) must be time and date stamped immediately 
upon receipt at the VA facility mail room and in the office of the 
addressee designated in the invitation.

           Subpart 814.4_Opening of Bids and Award of Contract



Sec. 814.401  Receipt and safeguarding of bids.

    The contracting officer is designated as the official to open bids 
for identification, as provided in FAR 14.401.



Sec. 814.402  Opening of bids.

    (a) The contracting officer must serve as, or designate, a bid 
opening officer, and must also designate a recorder.
    (b) If a bid bond is required, the bid opening officer must read 
aloud the form and amount of bid security and

[[Page 199]]

the name of the surety. The recorder must record this information.



Sec. 814.403  Recording of bids.

    (a) The recorder must transcribe the information required for bid 
evaluation on the appropriate Abstract of Offers form (SF 1409 or OF 
1419). The evaluation data may be recorded on supplemental sheets or 
forms such as VA Form 10-2237b, Request for Dietetic Supplies, provided 
that any supplemental sheets or forms are covered by one of the forms 
authorized for recording bid or price data.
    (b) The bid opening officer must comply with the instructions in FAR 
14.403 and certify on the abstract the date and hour at which the bids 
were opened. Where erasures, strikeovers, or changes in price are noted 
at the time of bid opening, a statement to that effect must also be 
included on, or attached to, the abstract or record of bids.



Sec. 814.404  Rejection of bids.



Sec. 814.404-1  Cancellation of invitations after opening.

    (a) For each invitation to bid that VA cancels or for which it 
receives no bid, the contracting officer must do the following:
    (1) File a copy of the invitation for bids, as provided for in FAR 
14.404-1, together with the abstract showing to whom such bids were 
sent, in a separate folder identified by the invitation number.
    (2) Annotate the abstract to show why an award was not made.
    (3) Retain the folders for the current and two succeeding fiscal 
years.
    (b) The HCA may approve cancellation of invitations for bid after 
opening and may approve completion of the acquisition after 
cancellation, as provided in FAR 14.404-1(e). The contracting officer 
must submit a Determination and Finding to the HCA for approval and 
signature.



Sec. 814.404-2  Rejection of individual bids.

    (a) When a contracting officer finds a bid that is being considered 
for an award is incomplete, e.g., all pages of the invitation have not 
been returned by the bidder, the contracting officer will take whichever 
of the following actions that is appropriate:
    (1) Make a determination that the bid as submitted is in such a form 
that acceptance would create a valid and binding contract, requiring the 
contractor to perform in accordance with all of the material terms and 
conditions of the invitation. The determination may be based on the fact 
that the bid as submitted includes evidence that the offeror intends to 
be bound by all the material terms and conditions of the invitation.
    (2) Make a determination that the bid as submitted is in such form 
that acceptance would not create a valid and binding contract.
    (b) When VA receives a single bid in response to a solicitation, the 
contracting officer must not reject the offer simply because it 
specifies a bid acceptance time that is shorter than that contained in 
the solicitation, unless a compelling reason exists for rejecting such a 
bid. Insufficient time to properly evaluate an offer is a compelling 
reason for rejection; however, the contracting officer must first 
request the offeror to extend the acceptance date of the bid to allow 
for proper evaluation.
    (c) In those cases where VA receives more than one bid, the 
contracting officer must reject as nonresponsive an individual bid that 
is not in compliance with the Government's bid acceptance time, since 
consideration of such an offer would unfairly disadvantage other 
bidders.



Sec. 814.404-70  Questions involving the responsiveness of a bid.

    If a contracting officer cannot resolve a question involving the 
responsiveness of a bid, the contracting officer may submit the question 
to the Comptroller General through the DSPE.



Sec. 814.407  Mistakes in bids.



Sec. 814.407-3  Other mistakes disclosed before award.

    (a) In accordance with FAR 14.407-3(e), the authority of the 
Secretary to make the administrative determinations set forth in FAR 
14.407-3(a), (b), (c), and (d) is delegated to the SPE and

[[Page 200]]

is further delegated, without power of redelegation, to the DSPE. This 
delegation in no way impairs the delegations contained in Unpublished 
Decision of the Comptroller General B-122003 dated November 22, 1954.
    (b) When a bidder alleges a mistake in his or her bid before award, 
after complying with the provisions of FAR 14.407-3, the contracting 
officer must submit the complete file to the DSPE for an administrative 
determination. Based upon the evidence submitted, the DSPE shall 
determine the action the contracting officer is to take. The contracting 
officer may make no award until the DSPE makes a determination.



Sec. 814.407-4  Mistakes after award.

    (a) When a contracting officer corrects a mistake in bid under FAR 
14.407-4(a), the contracting officer must forward a copy of the contract 
amendment or supplemental agreement and a copy of the contracting 
officer's determination, to the DSPE.
    (b) For mistakes in a bid alleged after award, the contracting 
officer's proposed determination, prepared in accordance with FAR 
14.407-4, must be forwarded to OGC through the DSPE, Acquisition 
Resources Service, for legal coordination. The DSPE shall transmit the 
results of this coordination to the contracting officer, who will make 
the final determination on the alleged mistake in bid after award.
    (c) The DSPE, Acquisition Resources Service, must maintain the 
agency records of mistakes in bids after award required by FAR 14.407-4.



Sec. 814.408  Award.



Sec. 814.408-70  Award when only one bid is received.

    (a) When VA receives only one bid in response to an invitation for 
bids, the contracting officer may consider and accept the bid if all of 
the following apply:
    (1) The specifications used in the invitation were not restrictive.
    (2) VA solicited adequate competition.
    (3) The price is reasonable.
    (4) The bid is otherwise in accordance with the invitation for bids.
    (b) The contracting officer must make the determination in writing, 
and include it the contract file.



Sec. 814.408-71  Recommendation for award (construction).

    (a) For Central Office contracts, the Director, Office of 
Construction and Facilities Management, must analyze all bids received 
and submit a memorandum to the Secretary recommending award or other 
disposition of the project. A copy of each of the following must 
accompany the memorandum:
    (1) The invitation.
    (2) Each bid received.
    (3) The abstract.
    (4) Any other pertinent data.
    (b) For facility-level contracts, the Chief, Engineering Service, 
must analyze all bids received and submit a memorandum recommending 
award or other disposition of the project to the contracting officer. 
The contracting officer alone must make the final decision to accept or 
reject the lowest responsive bid and the determination as to the 
responsibility of a prospective contractor.



Sec. 814.409  Information to bidders.

    (a) An employee of VA may not disclose information as to probable 
acceptance or rejection of any offer to any bidder or other person 
outside of VA, except as authorized by the FAR.
    (b) Except as provided in paragraphs (c) and (d) of this section, 
information about performance under a contract or an accepted bid is not 
public information and will be released to persons outside of VA only 
upon the authority of the immediate supervisor of the contracting 
officer.
    (c) Except as provided in paragraph (d) of this section, the 
contracting officer may furnish information on performance under a 
contract to those having a legitimate interest, such as sureties, banks, 
other financial companies and Government departments and agencies.
    (d) When litigation is involved, all information must be furnished 
through OGC.

[[Page 201]]

                   PART 815_CONTRACTING BY NEGOTIATION

                     Subpart 815.3_Source Selection

Sec.

Sec. 815.303 Responsibilities.

Sec. 815.304 Evaluation factors and significant subfactors.

Sec. 815.304-70 Evaluation factor commitments.

Sec. 815.304-71 Solicitation provision and clause

                     Subpart 815.4_Contract Pricing


Sec. 815.404 Proposal analysis.

Sec. 815.404-1 Proposal analysis techniques.

Sec. 815.404-2 Information to support proposal analysis.

                   Subpart 815.6_Unsolicited Proposals


Sec. 815.604 Department points of contact.

Sec. 815.606 Department procedures.

Sec. 815.606-1 Receipt and initial review.

    Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); and 48 CFR 
1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                     Subpart 815.3_Source Selection



Sec. 815.303  Responsibilities.

    The authority of the Secretary to appoint an individual other than 
the contracting officer to serve as the source selection authority for a 
particular acquisition or group of acquisitions is delegated to the SPE 
and is further delegated to the DSPE. If an HCA wishes to designate an 
individual other than the delegated contracting officer as the source 
selection authority for a particular acquisition or group of 
acquisitions, the HCA shall prepare a request and justification and 
shall submit the request through channels to the DSPE for approval.



Sec. 815.304  Evaluation factors and significant subfactors.

    (a) In an effort to assist SDVOSBs and VOSBs, contracting officers 
shall include evaluation factors providing additional consideration to 
such offerors in competitively negotiated solicitations that are not set 
aside for SDVOSBs or VOSBs.
    (b) Additional consideration shall also be given to any offeror, 
regardless of size status, that proposes to subcontract with SDVOSBs or 
VOSBs.

[74 FR 64631, Dec. 8, 2009]



Sec. 815.304-70  Evaluation factor commitments.

    (a) VA contracting officers shall:
    (1) Include provisions in negotiated solicitations giving preference 
to offers received from VOSBs and additional preference to offers 
received from SDVOSBs;
    (2) Use past performance in meeting SDVOSB subcontracting goals as a 
non-price evaluation factor in selecting offers for award;
    (3) Use the proposed inclusion of SDVOSBs or VOSBs as subcontractors 
as an evaluation factor when competitively negotiating the award of 
contracts or task or delivery orders; and
    (4) Use participation in VA's Mentor-Prot[eacute]g[eacute] Program 
as an evaluation factor when competitively negotiating the award of 
contracts or task or delivery orders.
    (b) If an offeror proposes to use an SDVOSB or VOSB subcontractor in 
accordance with 852.215-70, Service-Disabled Veteran-Owned and Veteran-
Owned Small Business Evaluation Factors, the contracting officer shall 
ensure that the offeror, if awarded the contract, actually does use the 
proposed subcontractor or another SDVOSB or VOSB subcontractor for that 
subcontract or for work of similar value.

[74 FR 64631, Dec. 8, 2009]



Sec. 815.304-71  Solicitation provision and clause.

    (a) The contracting officer shall insert the provision at 852.215-
70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business 
Evaluation Factors, in competitively negotiated solicitations that are 
not set aside for SDVOSBs or VOSBs.
    (b) The contracting officer shall insert the clause at 852.215-71, 
Evaluation Factor Commitments, in solicitations and contracts that 
include VAAR clause 852.215-70, Service-Disabled Veteran-Owned and 
Veteran-Owned Small Business Evaluation Factors.

[74 FR 64631, Dec. 8, 2009]

[[Page 202]]

                     Subpart 815.4_Contract Pricing



Sec. 815.404  Proposal analysis.



Sec. 815.404-1  Proposal analysis techniques.

    (a) Contracting officers are responsible for the technical and 
administrative sufficiency of the contracts they enter into. Contracting 
officers must ensure that contracts undergo all applicable legal and 
technical reviews. (See 801.602-70.)
    (b) Contracting officers determine the level of technical analyses 
necessary for initial and revised pricing of all negotiated prime 
contracts, including subcontract pricing under them, and contract 
modifications. Contracting officers must request technical analyses of 
the proposals from the appropriate technical personnel. The technical 
analyses must address, as a minimum, the items set forth in FAR 15.404-
1(e)(2).
    (c) The contracting officer must document the results of such 
analyses in the contract file and make the results available to the 
auditor performing the pre-award audit.



Sec. 815.404-2  Information to support proposal analysis.

    In evaluating start-up and other non-recurring costs, the 
contracting officer must determine the extent to which these costs are 
included in the proposed price and the intent to absorb or recover the 
costs in any future noncompetitive procurement or other pricing action. 
The contracting officer must ensure, with the assistance of the 
Assistant Inspector General for Policy, Planning, and Resources, as 
required or considered necessary, that VA will not pay the costs twice. 
For example, the cost of equipment that the Government pays for through 
a setup or connection agreement must not be included in depreciation 
cost of a subsequently negotiated agreement.

                   Subpart 815.6_Unsolicited Proposals



Sec. 815.604  Department points of contact.

    A VA employee who receives an unsolicited proposal or inquiries from 
a potential offeror of an unsolicited proposal must refer the proposal 
or inquiries to the following:
    (a) Facility level unsolicited proposals must be referred to the HCA 
for the field facility.
    (b) Proposals to the VA National Acquisition Center must be referred 
to the Executive Director and Chief Operating Officer, VA National 
Acquisition Center.
    (c) Proposals to VA Central Office must be referred to the Director, 
Acquisition Operations Service (049A3).



Sec. 815.606  Department procedures.

    (a) The VA contact point will do the following:
    (1) Determine the nature of the potential proposal and which 
technical/professional disciplines within VA to consult to determine the 
need for the proposal and the likelihood that a formal proposal would 
earn favorable review.
    (2) In consultation with such technical/professional offices, the VA 
contact point will furnish the potential offeror the information 
specified in FAR 15.604 and any other information that might be of 
assistance to the potential offeror.
    (b) The contact point will maintain a record of advance guidance 
provided and the disposition/recommendation regarding the potential 
offer.
    (c) The contact point will review the unsolicited proposal and 
ensure that it is complete as prescribed in FAR 15.605. If required 
information is not submitted, the contact point will:
    (1) Determine if FAR 15.604 requires advance guidance;
    (2) Determine whether a comprehensive evaluation prescribed by FAR 
15.606-2 is appropriate and, if so, request that the offeror provide the 
necessary information; and,
    (3) Establish an estimated due date for completion of the review 
process.



Sec. 815.606-1  Receipt and initial review.

    (a) When the VA contact point determines a proposal warrants a 
comprehensive evaluation (i.e., the proposal complies with the 
requirements in FAR 15.606-1(a) and is related to VA's mission), the 
contact point must contact the offeror to ensure that all

[[Page 203]]

data that should be restricted in accordance with FAR 15.609 has been 
identified.
    (b) The contact point must maintain a log of all unsolicited 
proposals to be evaluated. The log must indicate the following:
    (1) The date the proposal was received.
    (2) The date that the unsolicited proposal was determined to warrant 
a comprehensive evaluation.
    (3) A description of the proposal.
    (4) The offices requested to evaluate the proposal and the date the 
offices are requested to return their evaluations.
    (5) The date the reviewing offices finalize their respective 
evaluations.
    (6) The final disposition of the proposal.
    (c) The contact point must advise each office assigned 
responsibility for reviewing an unsolicited proposal of the need to 
evaluate the proposal against the criteria set forth in FAR 15.607(a)(1) 
through (4). If the reviewers determine that the proposal fails to meet 
any of the criteria, the contact point must be advised. The contact 
point must return the proposal to the offeror, citing the reasons 
therefore.
    (d) The contact point must obtain approval of the DSPE (049A5) 
before the contact point, if warranted as a contracting officer, or an 
appropriate contracting officer begins negotiation on proposals. The 
contact point must provide the DSPE (049A5) all necessary documentation 
supporting the noncompetitive negotiation, including any justification 
and approval required by FAR Subpart 6.3 and the results of any synopsis 
required by FAR Subpart 5.2. The DSPE (049A5) will consult the 
appropriate VA Central Office program official(s) and return the final 
decision to the contact point.

                       PART 816_TYPES OF CONTRACTS

                 Subpart 816.1_Selecting Contract Types

Sec.

Sec. 816.102 Policies.

               Subpart 816.5_Indefinite-Delivery Contracts


Sec. 816.504 Indefinite-quantity contracts.

Sec. 816.505 Ordering.

                 Subpart 816.70_Unauthorized Agreements


Sec. 816.7001 Letters of availability.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                 Subpart 816.1_Selecting Contract Types



Sec. 816.102  Policies.

    (a) Contracting officers must obtain technical review of 
solicitations that include a clause that provides for economic price 
adjustment specified in FAR 16.203-4 or any locally developed clause 
(see FAR 16.203-4(d)(2) and 801.602-72(d)). The request for approval 
must include a clearly stated need for the clause.
    (b) The contracting officer must obtain the approval of the 
Director, Acquisition Resources Service (049A5), VA Central Office, 
before issuing a solicitation or awarding a contract that includes time-
and-material or labor-hour pricing provisions if the ceiling price or 
estimated value of the acquisition exceeds $100,000. See 801.602-71 for 
technical review requirements. Excluded from this requirement are time-
and-material or labor-hour solicitations or proposed contracts covering 
emergencies, such as repair of a broken water, sewer, or communication 
line, repair of storm damage, etc. (i.e., where FAR 6.302-2 applies).
    (c) Except as provided in FAR 32.703-3, a contract that involves a 
direct obligation of appropriations and lasts for more than one year 
from the beginning of the contract period must provide that:
    (1) The contract applies to the period stated in the contract, 
subject to availability of funds; and
    (2) The contractor will not perform any service under the contract 
after September 30 of each fiscal year (or beyond the period of the 
basic contract or any authorized option if the contract crosses fiscal 
years as provided in FAR 32.703-3(b)) unless the contractor obtains 
specific authorization from the contracting officer.

[[Page 204]]

    (d) A/E contracts, construction contracts, or professional engineer 
contracts, financed by ``no year'' appropriations, are not subject to 
the requirements of paragraph (c) of this section.

               Subpart 816.5_Indefinite-Delivery Contracts



Sec. 816.504  Indefinite-quantity contracts.

    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, when the contracting officer cannot determine definite 
quantities to be acquired under a solicitation and intends to issue a 
solicitation for estimated quantities, the contracting officer shall 
insert the clause at 852.216-70, Estimated quantities.
    (b) The contracting officer shall insert the Alternate I clause at 
852.216-70 in solicitations for bulk coal.
    (c) The contracting officer shall insert the Alternate II clause at 
852.216-70 in solicitations for estimated quantities of orthopedic, 
prosthetic, and optical supplies.
    (d) The contracting officer shall insert the Alternate III clause at 
852.216-70 in solicitations for monuments and headstones.



Sec. 816.505  Ordering

    The task order contract and delivery order ombudsman for VA is the 
Associate Deputy Assistant Secretary for Acquisitions (see FAR 
16.505(b)(5)). Contracting officers may obtain the name, telephone 
number, facsimile number, and e-mail address of the current Associate 
Deputy Assistant Secretary for Acquisitions by contacting: The Office of 
Acquisitions (049A), VA Central Office, 810 Vermont Ave., NW., 
Washington, DC 20420.

                 Subpart 816.70_Unauthorized Agreements



Sec. 816.7001  Letters of availability.

    (a) Description. A letter of availability (sometimes inappropriately 
called a letter of intent) is a letter to a supplier that primarily 
seeks to reserve a place on the supplier's production or delivery 
schedule for long lead-time items. A letter of availability usually 
indicates products or services being considered for procurement. A 
supplier should not construe a letter of availability as a commitment. 
Prospective contractors sometimes solicit letters of availability or the 
letters may originate from Government personnel. A letter of 
availability differs from a letter contract, which is specifically 
authorized in FAR 16.603.
    (b) Policy. (1) For the following reasons, contracting officers may 
not use letters of availability unless the DSPE specifically authorizes 
them to do so:
    (i) Letters of availability often cause potential contractors to 
initiate costly preparations in anticipation of contract award.
    (ii) Procurements announced in such letters do not always 
materialize. The result may be costly to the Government, the prospective 
contractor, or both. If the author of the letter of availability is an 
authorized contracting officer of VA, the Government may be bound by the 
action, even though the action is contrary to sound procurement 
practices and/or fiscal regulations. If the author of the letter of 
availability lacks procurement authority, the prospective contractor may 
incur substantial expenditures that may not be recovered from the 
Government. In this instance, the prospective contractor may seek to 
hold the unauthorized author personally liable.
    (iii) The issuance of a letter of availability may violate the 
``Anti-Deficiency Act'' (31 U.S.C. 1341).
    (2) Contractors need access to procurement information as soon as 
possible to make timely preparations. Therefore, procurement personnel 
should act as efficiently and expeditiously as possible on all 
procurement actions.

                  PART 817_SPECIAL CONTRACTING METHODS

                  Subpart 817.1_Multi-year Contracting

Sec.

Sec. 817.105 Policy.

Sec. 817.105-1 Uses.

                          Subpart 817.2_Options


Sec. 817.202 Use of options.

[[Page 205]]


Sec. 817.204 Contracts.

                Subpart 817.4_Leader Company Contracting


Sec. 817.402 Limitations.

      Subpart 817.5_Interagency Acquisitions Under the Economy Act


Sec. 817.502 General.

    Authority: 38 U.S.C. 8127.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                  Subpart 817.1_Multi-year Contracting



Sec. 817.105  Policy.



Sec. 817.105-1  Uses.

    (a) Under 38 U.S.C. 114, VA contracting officers may enter into 
multi-year contracts for supplies and services not to exceed 5 years 
(unless otherwise authorized by statute), provided the Secretary or 
designee makes the following determinations:
    (1) Appropriations are available for obligation to pay for the total 
payments for the fiscal year in which the contract is awarded plus the 
estimated amount of any cancellation charges.
    (2) The contract serves the best interest of the Government by:
    (i) Reducing cost;
    (ii) Achieving contract administration and other efficiencies;
    (iii) Increasing quality contract performance; and
    (iv) Encouraging effective competition.
    (3) That, during the contract period:
    (i) Demand for the supplies or services will continue;
    (ii) Substantial changes in demand for supplies and services in 
terms of quantity or rate of delivery are unlikely; and
    (iii) Specifications for the supplies or services will remain 
reasonably stable.
    (4) The risk of the contractor's inability to perform under the 
terms and conditions of the contract is low.
    (5) A multi-year contract will not inhibit competition from small 
businesses.
    (6) For a pharmaceutical item for which a patent has expired less 
than 4 years before the solicitation issue date, that there is no 
substantial likelihood that increased competition among potential 
contractors would occur during the term of the contract as the result of 
the availability of generic equivalents increasing during the term of 
the contract.
    (b) The Secretary has delegated authority to make the determinations 
specified in 817.105-1(a) as follows:
    (1) HCAs may make the above determinations and approve contracts 
that do not require legal/technical reviews under 801.602-70 and that do 
not contain a first year cancellation ceiling exceeding 20 percent of 
the contract value over the full multi-year term.
    (2) Authority to make the above determinations and to approve all 
other proposed multi-year contracts is delegated to the SPE and is 
further delegated to the DSPE. For approval purposes, the HCA will 
justify and document the use of a multi-year contract against each of 
the criteria specified in paragraphs (a)(1) through (a)(6) of this 
section and forward to the DSPE for approval. The justification must 
explain the cancellation ceiling and the method used to calculate that 
ceiling. The justification also must explain the advantages of multi-
year contracts over other alternative methods, e.g., option year 
contracts.
    (c) The contracting officer must develop the cancellation ceilings 
in accordance with FAR 17.106-1. (38 U.S.C. 114)

                          Subpart 817.2_Options



Sec. 817.202  Use of options.

    All solicitations developed under Office of Management and Budget 
Circular A-76 (Revised) cost comparisons will provide for four one-year 
renewal options as prescribed in FAR Subpart 17.2. The contracting 
officer must forward requests to use less or more than the prescribed 
contract period for Circular A-76 (Revised) cost comparisons to the DSPE 
for approval.



Sec. 817.204  Contracts.

    (a) The contracting officer must obtain the approval of the DSPE 
before awarding a contract that includes options exceeding the 5-year 
limitation

[[Page 206]]

specified in FAR 17.204(e). This requirement does not apply to contracts 
to be awarded by or on behalf of the VA Office of the Inspector General. 
The request for approval must include the following:
    (1) Supporting documentation, rationale, and justifications for the 
use of options (see FAR 17.205) and for exceeding the 5-year limitation.
    (2) Documentation that the contracting officer has considered and 
addressed the limitations specified in FAR 17.202(b) and (c).
    (b) Solicitations that require technical review in accordance with 
801.602-71 through 801.602-73 shall be submitted for review concurrently 
as provided therein.

                Subpart 817.4_Leader Company Contracting



Sec. 817.402  Limitations.

    (a) Except as provided in paragraph (b) of this section, the 
Government shall not initiate or execute leader company contracts.
    (b) The DSPE may designate a contracting officer to enter into a 
leader company contract for the benefit of VA and the Government. The 
DSPE must designate a contracting officer by name for a specific 
contract. The named contracting officer will submit the proposed 
contract, with a determination and finding, for legal review in 
accordance with 801.602-75.

      Subpart 817.5_Interagency Acquisitions Under the Economy Act



Sec. 817.502  General.

    (a) After December 31, 2008, any contract, memorandum of 
understanding, agreement, or other arrangement with any governmental 
entity to acquire goods and services, shall include in such contract, 
memorandum, agreement, or other arrangement a requirement that the 
entity will comply, to the maximum extent feasible, with the provisions 
of 38 U.S.C. 8127 and 8128, as implemented by the VA Acquisition 
Regulation, in acquiring such goods or services.
    (b) Nothing in this subsection shall be construed to supersede or 
otherwise affect the authorities provided under the Small Business Act 
(15 U.S.C. 631 et seq.).

[74 FR 64631, Dec. 8, 2009]

[[Page 207]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 819_SMALL BUSINESS PROGRAMS

                         Subpart 819.2_Policies

Sec.

Sec. 819.201 General policy.

Sec. 819.202 Specific policies.

Sec. 819.202-1 Encouraging small business participation in acquisitions.

Sec. 819.202-5 Data collection and reporting requirements.

Sec. 819.202-70 HCA responsibilities.

Sec. 819.202-71 Additional contracting officer responsibilities.

Sec. 819.202-72 Order of precedence. [Reserved]

Subpart 819.3_Determination of Small Business Status for Small Business 
                                Programs


Sec. 819.307 SDVOSB/VOSB small business status protests.

               Subpart 819.5_Set-Asides For Small Business


Sec. 819.502 Setting aside acquisitions.

Sec. 819.502-2 Total small business set-asides.

Sec. 819.502-3 Partial set-asides.

     Subpart 819.6_Certificates of Competency and Determinations of 
                             Responsibility


Sec. 819.602 Procedures.

Sec. 819.602-3 Resolving differences between VA and the Small Business 
          Administration.

         Subpart 819.7_The Small Business Subcontracting Program


Sec. 819.704 Subcontracting plan requirements.

Sec. 819.705 Appeal of Contracting Officer decisions.

Sec. 819.709 Contract clause.

 Subpart 819.8_Contracting with the Small Business Administration (The 
                              8(a) Program)


Sec. 819.800 General.

 Subpart 819.70_Service-Disabled Veteran-Owned and Veteran-Owned Small 
                      Business Acquisition Program


Sec. 819.7001 General.

Sec. 819.7002 Applicability.

Sec. 819.7003 Eligibility.

Sec. 819.7004 Contracting Order of Priority.

Sec. 819.7005 Service-disabled veteran-owned small business set-aside 
          procedures.

Sec. 819.7006 Veteran-owned small business set-aside procedures.

Sec. 819.7007 Sole source awards to service-disabled veteran-owned small 
          business concerns.

Sec. 819.7008 Sole source awards to veteran-owned small business 
          concerns.

Sec. 819.7009 Contract clauses.

         Subpart 819.71_VA Mentor-Prot[eacute]g[eacute] Program

Sec.

Sec. 819.7101 Purpose.

Sec. 819.7102 Definitions.

Sec. 819.7103 Non-affiliation.

Sec. 819.7104 General policy.

Sec. 819.7105 Incentives for mentor participation.

Sec. 819.7106 Eligibility of Mentor and Prot[eacute]g[eacute] firms.

Sec. 819.7107 Selection of Prot[eacute]g[eacute] firms.

Sec. 819.7108 Application process.

Sec. 819.7109 VA review of application.

Sec. 819.7110 Developmental assistance.

Sec. 819.7111 Obligations under the Mentor-Prot[eacute]g[eacute] 
          Program.

Sec. 819.7112 Internal controls.

Sec. 819.7113 Reports.

Sec. 819.7114 Measurement of program success.

Sec. 819.7115 Solicitation provisions.

    Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c) and (d); 48 CFR 
1.301-1.304; and 15 U.S.C. 637(d)(4)(E).

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                         Subpart 819.2_Policies



Sec. 819.201  General policy.

    The Secretary shall establish goals for each fiscal year for 
participation in Department contracts by SDVOSBs and VOSBs. In order to 
establish contracting priority for veteran-owned and controlled small 
businesses in accordance with 38 U.S.C. 8128, the Secretary may decrease 
other status-specific small business goals set forth by section 15(g)(1) 
of the Small Business Act (15 U.S.C. 644(g)(1)) upon consultation with 
the Administrator of the U.S. Small Business Administration (SBA).

[74 FR 64631, Dec. 8, 2009]



Sec. 819.202  Specific policies.



Sec. 819.202-1  Encouraging small business participation in 
          acquisitions.

    Contracting officers may negotiate payment terms of less than 30 
calendar

[[Page 208]]

days to encourage small business participation. A period of less than 7 
days may not be prescribed (see FAR 32.908(c)(2)). The contracting 
officer and the local fiscal officer must be in agreement on the 
negotiated payment terms before awarding the contract.



Sec. 819.202-5  Data collection and reporting requirements.

    (a) Administration heads, staff office directors, and HCAs must, in 
addition to the responsibilities designated in FAR 19.202-5, cooperate 
with OSDBU in formulating specific small business program goals and 
providing other data necessary for goal assessment.
    (b) Each VA acquisition activity shall establish goals for the 
expenditure of funds with preferred businesses within their projected 
annual budget. OSDBU is responsible for Department-wide goals and 
accomplishments and will approve or adjust each acquisition activity's 
goals.
    (c) A Procurement Preference Program Goals Report (Report Control 
Symbol 00-0427) shall be submitted annually by each acquisition activity 
to reach OSDBU by November 1. Each report shall contain total 
expenditure estimates and goals for the current fiscal year and 
explanations of the methods utilized to arrive at each proposed goal. 
Anticipated problems in the attainment of the proposed goal in any 
category shall also be identified. This information will be used in 
negotiating the Department goals with the Small Business Administration 
(SBA).
    (d) As an addendum to the report, each acquisition activity shall 
provide a narrative explaining the reason(s) for any shortfall(s) in the 
achievement of any previous fiscal year goal category.
    (e) Upon review by OSDBU of the proposed goals, each acquisition 
activity will be notified of the acceptance of goals as submitted, or of 
any deficiencies. If the goals are not acceptable, the acquisition 
activity will be requested to submit further written justification for 
the goals submitted. Based on documents submitted, OSDBU will make a 
final determination on the goal assignment.
    (f) Accomplishment of goals will be determined by OSDBU from data 
reported by acquisition activities into the Federal Procurement Data 
System-Next Generation (FPDS-NG).



Sec. 819.202-70  HCA responsibilities.

    An HCA must perform the following functions in support of the small 
business program. These functions cannot be delegated without written 
approval of the Director, OSBDU:
    (a) Develop, on an annual basis, a plan of operation to increase the 
share of contracts and purchase orders awarded to the small business 
programs prescribed in FAR Part 19. This plan must also include veteran-
owned and service-disabled veteran-owned small business concerns.
    (b) Promote goals for the small business programs set forth in FAR 
Part 19. This must also include veteran-owned and service-disabled 
veteran-owned small business concerns.
    (c) Review the types and classes of items and services to be 
purchased to determine the applicability of individual small business 
set-asides.
    (d) Review class set-asides, established in accordance with criteria 
in FAR 19.503, at least annually to determine whether items or services 
procured under a unilateral or joint set-aside should be modified or 
withdrawn.
    (e) Maintain updated lists of acquisitions reserved for small 
business on a class basis.
    (f) If the acquisition activity is assigned to an SBA Procurement 
Center Representative, assure that the representative is provided 
logistical support, cooperation, and access to all reasonably obtainable 
contract information directly pertinent to the SBA Procurement Center 
Representative's official duties.
    (g) Encourage technical personnel and end-users to participate in 
discussions with veteran-owned and service-disabled veteran-owned small 
business concerns.
    (h) Attend conferences and meetings publicizing small business 
programs. This responsibility may be delegated without the written 
approval of the Director, OSBDU.

[[Page 209]]



Sec. 819.202-71  Additional contracting officer responsibilities.

    In addition to the duties designated in FAR 19.202 through 19.202-6, 
contracting officers must perform the following functions in support of 
the small business program:
    (a) Make maximum use of small business source lists.
    (b) Assure that small business firms are identified on solicitation 
mailing lists and bid abstracts.
    (c) Assure that specifications are not unduly restrictive, thereby 
enabling small business participation to the maximum extent possible.
    (d) Assist and counsel small business firms with individual 
problems.
    (e) Provide for counseling non-responsive or non-responsible small 
business bidders to help qualify them for future awards.
    (f) Submit informational copies of all small business protests and 
appeals to the Director, OSBDU, at the same time they are submitted to 
the SBA.



Sec. 819.202-72  Order of precedence. [Reserved]

Subpart 819.3_Determination of Small Business Status for Small Business 
                                Programs



Sec. 819.307  SDVOSB/VOSB Small Business Status Protests.

    (a) All protests relating to whether a Service-Disabled Veteran-
Owned Small Business (SDVOSB) or Veteran-Owned Small Business (VOSB) is 
a ``small'' business for the purposes of any Federal program are subject 
to 13 CFR part 121 and must be filed in accordance with that part. 
SDVOSB and VOSB status shall be determined in accordance with 38 CFR 
part 74.
    (b) A contracting officer or an interested party may protest the 
apparently successful offeror's SDVOSB or VOSB status. ``Interested 
party'' for the purpose of filing a status protest is an actual offeror 
whose direct economic interest would be affected by the award of a 
contract or by the failure to award a contract.
    (c) All status protests shall be in writing and shall state all 
specific grounds for the protest. Assertions that a protested concern is 
not an SDVOSB or VOSB concern, without setting forth specific facts or 
allegations, are insufficient. An interested party must submit its 
status protest to the contracting officer by close of business on the 
fifth business day after bid opening (in sealed bid acquisitions) or by 
close of business on the fifth business day after notification by the 
contracting officer of the apparently successful offeror (in negotiated 
acquisitions). An interested party must deliver their protest in person, 
by electronic mail, by facsimile, by express delivery service, or by the 
U.S. Postal Service within the applicable time period to the contracting 
officer. Any status protest received after these time limits is 
untimely. Any status protest received prior to bid opening or 
notification of intended award, whichever applies, is premature and 
shall be returned to the protester. Except for premature status 
protests, the contracting officer must forward to the Director, Center 
for Verification and Evaluation (CVE), any status protest received.
    (d) The Director, CVE, will notify the protester and the contracting 
officer of the date the status protest was received by CVE and whether 
the status protest will be processed or dismissed for lack of timeliness 
or specificity.
    (e) The Director, CVE, will determine the SDVOSB or VOSB status of 
the protested concern based upon the totality of circumstances within 21 
business days after receipt of the status protest. If the Director, CVE, 
does not contact the contracting officer within 21 business days, the 
contracting officer may award the contract to the apparently successful 
offeror, unless the contracting officer has granted the Director, CVE, 
an extension. The contracting officer may award the contract after 
receipt of a status protest if the contracting officer determines in 
writing that an award must be made to protect the public interest. The 
contracting officer shall document this determination for the contract 
file.
    (f) A denial decision by the Director, CVE, that is based on the 
failure to meet any service-disabled Veteran or Veteran criterion as 
defined in 38 CFR 74.1 is not subject to an appeal to the Executive 
Director, Office of Small and

[[Page 210]]

Disadvantaged Business Utilization (OSDBU), and is a final decision.
    (g) The Director, CVE, will notify the contracting officer, the 
protester, and the protested concern of its determination. The 
determination is effective immediately and is final unless overturned on 
appeal by the Executive Director, OSDBU. The determination may be sent 
by mail, commercial carrier, facsimile transmission, or other electronic 
means.
    (h) If the Director, CVE, sustains an SDVOSB or VOSB status protest 
and the contract has already been awarded, then the awarded contract 
shall be deemed void ab initio and the contracting officer shall rescind 
the contract and award the contract to the next SDVOSB or VOSB in line 
for the award. The ineligible SDVOSB or VOSB concern shall not be 
permitted to submit another offer as a SDVOSB or VOSB on a future SDVOSB 
or VOSB procurement under this part, unless it successfully appeals the 
determination of the Director, CVE, to the Executive Director, OSDBU, or 
unless it applies for and receives verified SDVOSB or VOSB status in 
accordance with 38 CFR part 74.
    (i) Except as provided in subsection (f), the protestor or the 
protested SDVOSB or VOSB concern may file an appeal of the status 
protest determination with the Executive Director, OSDBU. The Executive 
Director must receive the appeal no later than 5 business days after the 
date of receipt of the status protest determination. The Executive 
Director will dismiss any appeal received after the 5-day period. 
``Filing'' means a document is received by the Executive Director by 
5:30 p.m., Eastern Standard Time, on that day. Documents may be filed by 
hand delivery, mail, commercial carrier, or facsimile transmission. Hand 
delivery and other means of delivery may not be practicable during 
certain periods due to, for example, security concerns or equipment 
failures. The filing party bears the risk that the delivery method 
chosen will not result in timely receipt by the Executive Director, 
OSDBU. Submit appeals to: Executive Director, OSDBU (00VE), U.S. 
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 
20420.
    (j) The appeal must be in writing. The appeal must identify the 
status protest determination being appealed and must set forth a full 
and specific statement as to why the decision was based on clear error 
of fact or law.
    (k) The party appealing the determination must provide notice of the 
appeal to the contracting officer. The Executive Director will decide 
all appeals under this subpart solely on a review of the evidence in the 
written protest file, arguments made in the appeal petition and 
response(s) filed thereto.
    (l) The Executive Director will make a decision within 10 business 
days of the receipt of the appeal, if practicable, and will base the 
decision only on the information and documentation in the protest record 
as supplemented by the appeal. The Executive Director will provide a 
copy of the decision to the contracting officer and the protested SDVOSB 
or VOSB concern. The Executive Director's decision, if received before 
the award, will apply to the pending acquisition. If the Executive 
Director decides in favor of the appealing party and the decision is 
received after the award, the contracting officer may terminate the 
contract or not exercise the next option. The Executive Director's 
decision is the final decision. The decision may be sent by mail, 
commercial carrier, facsimile transmission, or other electronic means.

[78 FR 59865, Sept. 30, 2013]

               Subpart 819.5_Set-Asides for Small Business



Sec. 819.502  Setting aside acquisitions.



Sec. 819.502-2  Total small business set-asides.

    (a) When a total small business set-aside is made, one of the 
following statements, as applicable, will be included in the 
solicitation for bids:
    (1) Notice of total small business set-aside, page ----, applies to 
all items in this solicitation.
    (2) Notice of total small business set-aside, page ----, applies to 
items ---- through ---- in this solicitation.
    (b) Contracting officers must ensure that the appropriate product or 
service classification and the related size

[[Page 211]]

standard are included in each solicitation.



Sec. 819.502-3  Partial set-asides.

    When, in accordance with the provisions of FAR 19.502-3, the 
contracting officer determines that a particular procurement will be 
partially set aside for small business participation, the solicitation 
for bids shall include the appropriate product or service classification 
and appropriate size standard, and the following statement shall be 
placed on the face page:

    Notice of partial set-aside, page ----, applies to item ---- through 
item ---- in this solicitation.

     Subpart 819.6_Certificates of Competency and Determinations of 
                             Responsibility



Sec. 819.602  Procedures.



Sec. 819.602-3  Resolving differences between VA and the Small Business 
          Administration.

    The Director, OSDBU, is the VA liaison with the SBA. Information 
copies of correspondence sent to the SBA seeking a certificate of 
competency determination must be concurrently provided to the Director, 
OSDBU. Before appealing a certificate of competency, the HCA must seek 
concurrence from the Director, OSDBU.

         Subpart 819.7_The Small Business Subcontracting Program

    Source: 74 FR 64632, Dec. 8, 2009, unless otherwise noted.



Sec. 819.704  Subcontracting plan requirements.

    (a) The contracting officer shall ensure that any subcontracting 
plans submitted by offerors include a goal that is at least commensurate 
with the annual VA SDVOSB prime contracting goal for the total value of 
planned subcontracts.
    (b) The contracting officer shall ensure that any subcontracting 
plans submitted by offerors include a goal that is at least commensurate 
with the annual VA VOSB prime contracting goal for the total value of 
all planned subcontracts.
    (c) VA's OSDBU shall review all prime contractor's subcontracting 
plan achievement reports to ensure that, in the case of a subcontract 
that is counted for purposes of meeting a goal in accordance with 
subparagraphs (a) and (b) of this section, the subcontract was actually 
awarded to a business concern that is eligible to be counted toward 
meeting the goal, as provided in 804.1102.



Sec. 819.705  Appeal of Contracting Officer decisions.

    (a) Acquisitions not exceeding the simplified acquisition threshold 
(SAT) and 819.7007 and 819.7008 are excluded from this section.
    (b) When an interested party intends to appeal a contracting 
officer's decision to not use the set-aside authority contained in 
subpart 819.70, the party shall notify the contracting officer, in 
writing, of its intent to challenge the decision. The contracting 
officer has 5 working days to reply to the challenge by either revising 
the strategy or indicating the rationale for not setting-aside the 
requirement. Upon receipt of the decision, the interested party may 
appeal to the Head of the Contracting Activity (HCA). Such appeal shall 
be filed within 5 working days of receipt of the contracting officer's 
decision. The HCA has 5 working days to respond to the appeal. The 
contracting officer shall suspend action on the acquisition unless the 
HCA makes a written determination that urgent circumstances exist which 
would significantly affect the interests of the government. The decision 
of the HCA shall be final.
    (c) Prime contractors submitting businesses declared ineligible for 
credit in SDVOSB and/or VOSB subcontracting plans may appeal to the 
Executive Director, Office of Small and Disadvantaged Business 
Utilization and Center for Veterans Enterprise (00VE), U.S. Department 
of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, 
within 5 working days of receipt of information declaring their 
subcontractor ineligible. The Executive Director shall have 5 working 
days to respond. The decision of the Executive Director may be appealed 
to the

[[Page 212]]

Senior Procurement Executive (SPE) within 5 working days. The SPE shall 
have 15 working days to respond and that decision shall be final.



Sec. 819.709  Contract clause.

    The contracting officer shall insert VAAR clause 852.219-9, Small 
Business Subcontracting Plan Minimum Requirements, in solicitations and 
contracts that include FAR clause 52.219-9, Small Business 
Subcontracting Plan.

 Subpart 819.8_Contracting With the Small Business Administration (The 
                              8(a) Program)



Sec. 819.800  General.

    (a) No contract will be entered into with SBA under section 8(a) of 
the Small Business Act (15 U.S.C. 637(a)) unless a certification is made 
by the Administrator of that agency, or designee, that SBA is competent 
to perform the contract.
    (b) When it is determined that the requirements of VA are 
appropriate for inclusion in this program, the contracting officer will 
make this fact known to proper officials of the SBA regional office 
servicing his/her area. However, when projects funded from minor 
construction appropriation (between $400,000 and $2 million) are 
proposed for 8(a) acquisition, the Director, OSDBU (00SB), shall be 
contacted by telephone or notified in writing in order to afford the 
OSDBU an opportunity to identify possible 8(a) sources prior to 
apprising SBA officials. If the certification required by paragraph (a) 
of this section is received, the VA contracting officer will secure from 
SBA the name(s) and location(s) of their subcontractor(s) and the unit 
price(s) to be paid. Should these prices be within a range acceptable to 
VA, the contracting officer will notify SBA of acceptance.
    (c) The contract will be made between VA and SBA and will be 
administered by VA.

 Subpart 819.70_Service-Disabled Veteran-Owned and Veteran-Owned Small 
                      Business Acquisition Program

    Source: 74 FR 64632, Dec. 8, 2009, unless otherwise noted.



Sec. 819.7001  General.

    (a) Sections 502 and 503 of the Veterans Benefits, Health Care, and 
Information Technology Act of 2006 (38 U.S.C. 8127-8128), created an 
acquisition program for small business concerns owned and controlled by 
service-disabled veterans and those owned and controlled by veterans for 
VA.
    (b) The purpose of the program is to provide contracting assistance 
to SDVOSBs and VOSBs.



Sec. 819.7002  Applicability.

    This subpart applies to VA contracting activities and to its prime 
contractors. Also, this subpart applies to any government entity that 
has a contract, memorandum of understanding, agreement, or other 
arrangement with VA to acquire goods and services for VA in accordance 
with 817.502.



Sec. 819.7003  Eligibility.

    (a) Eligibility of SDVOSBs and VOSBs continues to be governed by the 
Small Business Administration regulations, 13 CFR subparts 125.8 through 
125.13, as well as the FAR, except where expressly directed otherwise by 
the VAAR, and 38 CFR verification regulations for SDVOSBs and VOSBs.
    (b) At the time of submission of offer, the offeror must represent 
to the contracting officer that it is a--
    (1) SDVOSB concern or VOSB concern;
    (2) Small business concern under the North American Industry 
Classification System (NAICS) code assigned to the acquisition; and
    (3) Verified for eligibility in the VIP database.
    (c) A joint venture may be considered an SDVOSB or VOSB concern if
    (1) At least one member of the joint venture is an SDVOSB or VOSB 
concern, and makes the representations in paragraph (b) of this section;

[[Page 213]]

    (2) Each other concern is small under the size standard 
corresponding to the NAICS code assigned to the procurement;
    (3) The joint venture meets the requirements of paragraph 7 of the 
size standard explanation of affiliates in FAR 19.101; and
    (4) The joint venture meets the requirements of 13 CFR 125.15(b), 
modified to include veteran-owned small businesses where this CFR 
section refers to SDVOSB concerns.
    (d) Any SDVOSB or VOSB concern (nonmanufacturer) must meet the 
requirements in FAR 19.102(f) to receive a benefit under this program.



Sec. 819.7004  Contracting Order of Priority.

    In determining the acquisition strategy applicable to an 
acquisition, the contracting officer shall consider, in the following 
order of priority, contracting preferences that ensure contracts will be 
awarded:
    (a) To SDVOSBs;
    (b) To VOSB, including but not limited to SDVOSBs;
    (c) Pursuant to--
    (1) Section 8(a) of the Small Business Act (15 U.S.C. 637(a)); or
    (2) The Historically-Underutilized Business Zone (HUBZone) Program 
(15 U.S.C. 657a); and
    (d) Pursuant to any other small business contracting preference.



Sec. 819.7005  Service-disabled veteran-owned small business set-aside 
          procedures.

    (a) The contracting officer shall consider SDVOSB set-asides before 
considering VOSB set-asides. Except as authorized by 813.106, 819.7007 
and 819.7008, the contracting officer shall set-aside an acquisition for 
competition restricted to SDVOSB concerns upon a reasonable expectation 
that,
    (1) Offers will be received from two or more eligible SDVOSB 
concerns; and
    (2) Award will be made at a fair and reasonable price.
    (b) When conducting SDVOSB set-asides, the contracting officer shall 
ensure:
    (1) Eligibility is extended to businesses owned and operated by 
surviving spouses; and
    (2) Businesses are registered and verified as eligible in the VIP 
database prior to making an award.
    (c) If the contracting officer receives only one acceptable offer at 
a fair and reasonable price from an eligible SDVOSB concern in response 
to a SDVOSB set-aside, the contracting officer should make an award to 
that concern. If the contracting officer receives no acceptable offers 
from eligible SDVOSB concerns, the set-aside shall be withdrawn and the 
requirement, if still valid, set aside for VOSB competition, if 
appropriate.



Sec. 819.7006  Veteran-owned small business set-aside procedures.

    (a) The contracting officer shall consider SDVOSB set-asides before 
considering VOSB set-asides. Except as authorized by 813.106, 819.7007 
and 819.7008, the contracting officer shall set aside an acquisition for 
competition restricted to VOSB concerns upon a reasonable expectation 
that:
    (1) Offers will be received from two or more eligible VOSB concerns; 
and
    (2) Award will be made at a fair and reasonable price.
    (b) If the contracting officer receives only one acceptable offer at 
a fair and reasonable price from an eligible VOSB concern in response to 
a VOSB set-aside, the contracting officer should make an award to that 
concern. If the contracting officer receives no acceptable offers from 
eligible VOSB concerns, the set-aside shall be withdrawn and the 
requirement, if still valid, set aside for other small business 
programs, as appropriate.
    (c) When conducting VOSB set-asides, the contracting officer shall 
ensure the business is registered and verified as eligible in the VIP 
database prior to making an award.



Sec. 819.7007  Sole source awards to service-disabled veteran-owned 
          small business concerns.

    (a) A contracting officer may award contracts to SDVOSB concerns on 
a sole source basis provided:
    (1) The anticipated award price of the contract (including options) 
will not exceed $5 million;
    (2) The requirement is synopsized in accordance with FAR part 5;

[[Page 214]]

    (3) The SDVOSB concern has been determined to be a responsible 
contractor with respect to performance; and
    (4) Award can be made at a fair and reasonable price.
    (b) The contracting officer's determination whether to make a sole 
source award is a business decision wholly within the discretion of the 
contracting officer. A determination that only one SDVOSB concern is 
available to meet the requirement is not required.
    (c) When conducting a SDVOSB sole source acquisition, the 
contracting officer shall ensure businesses are registered and verified 
as eligible in the VIP database prior to making an award.



Sec. 819.7008  Sole source awards to veteran-owned small business 
          concerns.

    (a) A contracting officer may award contracts to VOSB concerns on a 
sole source basis provided:
    (1) The anticipated award price of the contract (including options) 
will not exceed $5 million;
    (2) The requirement is synopsized in accordance with FAR part 5;
    (3) The VOSB concern has been determined to be a responsible 
contractor with respect to performance;
    (4) Award can be made at a fair and reasonable price; and
    (5) No responsible SDVOSB concern has been identified.
    (b) The contracting officer's determination whether to make a sole 
source award is a business decision wholly within the discretion of the 
contracting officer. A determination that only one VOSB concern is 
available to meet the requirement is not required.
    (c) When conducting a VOSB sole source acquisition, the contracting 
officer shall ensure businesses are registered and verified as eligible 
in the VIP database prior to making an award.



Sec. 819.7009  Contract clauses.

    The contracting officer shall insert VAAR clause 852.219-10, Notice 
of Total Service-Disabled Veteran-Owned Small Business Set-Aside or 
852.219-11, Notice of Total Veteran-Owned Small Business Set-Aside in 
solicitations and contracts for acquisitions under this subpart.

         Subpart 819.71_VA Mentor-Prot[eacute]g[eacute] Program

    Source: 74 FR 64633, Dec. 8, 2009, unless otherwise noted.



Sec. 819.7101  Purpose.

    The VA Mentor-Prot[eacute]g[eacute] Program is designed to assist 
service-disabled veteran-owned small businesses (SDVOSBs) and veteran-
owned small businesses (VOSBs) in enhancing their capabilities to 
perform contracts and subcontracts for VA. The Mentor-
Prot[eacute]g[eacute] Program is also designed to improve the 
performance of VA contractors and subcontractors by providing 
developmental assistance to prot[eacute]g[eacute] entities, fostering 
the establishment of long-term business relationships between SDVOSBs, 
VOSBs and prime contractors, and increasing the overall number of 
SDVOSBs and VOSBs that receive VA contract and subcontract awards. A 
firm's status as a prot[eacute]g[eacute] under a VA contract shall not 
have an effect on the firm's eligibility to seek other prime contracts 
or subcontracts.



Sec. 819.7102  Definitions.

    (a) A Mentor is a contractor that elects to promote and develop 
SDVOSBs and/or VOSBs by providing developmental assistance designed to 
enhance the business success of the prot[eacute]g[eacute]. A mentor may 
be a large or small business concern.
    (b) OSDBU is the Office of Small and Disadvantaged Business 
Utilization. This is the VA office responsible for administering, 
implementing and coordinating the Department's small business programs, 
including the Mentor-Prot[eacute]g[eacute] Program.
    (c) Program refers to the VA Mentor-Prot[eacute]g[eacute] Program as 
described in this Subpart.
    (d) Prot[eacute]g[eacute] means a SDVOSB or VOSB, as defined in 
802.101, which meets federal small business size standards in its 
primary NAICS code and which is the recipient of developmental 
assistance pursuant to a Mentor-Prot[eacute]g[eacute] agreement.

[[Page 215]]



Sec. 819.7103  Non-affiliation.

    A Prot[eacute]g[eacute] firm will not be considered an affiliate of 
a mentor firm solely on the basis that the prot[eacute]g[eacute] firm is 
receiving developmental assistance from the mentor firm under VA's 
Mentor-Prot[eacute]g[eacute] Program. The determination of affiliation 
is a function of the SBA.



Sec. 819.7104  General policy.

    (a) To be eligible, mentors and prot[eacute]g[eacute]s must not be 
listed on the Excluded Parties List System, located at http://
www.epls.gov. Mentors will provide appropriate developmental assistance 
to enhance the capabilities of prot[eacute]g[eacute]s to perform as 
prime contractors and/or subcontractors.
    (b) VA reserves the right to limit the number of participants in the 
program in order to ensure its effective management of the Mentor-
Prot[eacute]g[eacute] Program.



Sec. 819.7105  Incentives for prime contractor participation.

    (a) Under the Small Business Act, 15 U.S.C. 637(d)(4)(e), VA is 
authorized to provide appropriate incentives to encourage subcontracting 
opportunities for small business consistent with the efficient and 
economical performance of the contract. This authority is limited to 
negotiated procurements. FAR 19.202-1 provides additional guidance.
    (b) Costs incurred by a mentor to provide developmental assistance, 
as described in 819.7110 to fulfill the terms of their agreement(s) with 
a prot[eacute]g[eacute] firm(s), are not reimbursable as a direct cost 
under a VA contract. If VA is the mentor's responsible audit agency 
under FAR 42.703-1, VA will consider these costs in determining indirect 
cost rates. If VA is not the responsible audit agency, mentors are 
encouraged to enter into an advance agreement with their responsible 
audit agency on the treatment of such costs when determining indirect 
cost rates.
    (c) In addition to subparagraph (b) of this section, contracting 
officers shall give mentors evaluation credit under 852.219-52, 
Evaluation Factor for Participation in the VA Mentor-
Prot[eacute]g[eacute] Program, considerations for subcontracts awarded 
pursuant to their Mentor-Prot[eacute]g[eacute] Agreements and their 
subcontracting plans. Therefore:
    (1) Contracting officers may evaluate subcontracting plans 
containing mentor-prot[eacute]g[eacute] arrangements more favorably than 
subcontracting plans without Mentor-Prot[eacute]g[eacute] Agreements.
    (2) Contracting officers may assess the prime contractor's 
compliance with the subcontracting plans submitted in previous contracts 
as a factor in evaluating past performance under FAR 15.305(a)(2)(v) and 
determining contractor responsibility 19.705-5(a)(1).
    (d) OSDBU Mentoring Award. A non-monetary award will be presented 
annually to the mentoring firm providing the most effective 
developmental support to a prot[eacute]g[eacute]. The Mentor-
Prot[eacute]g[eacute] Program Manager will recommend an award winner to 
the OSDBU Director.
    (e) OSDBU Mentor-Prot[eacute]g[eacute] Annual Conference. At the 
conclusion of each year in the Mentor-Prot[eacute]g[eacute] Program, 
mentor firms will be invited to brief contracting officers, program 
leaders, office directors and other guests on program progress.



Sec. 819.7106  Eligibility of Mentor and Prot[eacute]g[eacute] firms.

    Eligible business entities approved as mentors may enter into 
agreements (hereafter referred to as ``Mentor-Prot[eacute]g[eacute] 
Agreement'' or ``Agreement'' and explained in 819.7108) with eligible 
prot[eacute]g[eacute]s. Mentors provide appropriate developmental 
assistance to enhance the capabilities of prot[eacute]g[eacute]s to 
perform as contractors and/or subcontractors. Eligible small business 
entities capable of providing developmental assistance may be approved 
as mentors. Prot[eacute]g[eacute]s may participate in the program in 
pursuit of a prime contract or as subcontractors under the mentor's 
prime contract with VA, but are not required to be a subcontractor to a 
VA prime contractor or be a VA prime contractor.
    (a) Eligibility. A Mentor:
    (1) May be either a large or small business entity and either a 
prime contractor or subcontractor;
    (2) Must be able to provide developmental assistance that will 
enhance the ability of Prot[eacute]g[eacute]s to perform as prime 
contractors or subcontractors; and
    (3) Will be encouraged to enter into arrangements with entities with 
which

[[Page 216]]

it has established business relationships.
    (b) Eligibility. A Prot[eacute]g[eacute]:
    (1) Must be a SDVOSB or VOSB as defined in 802.101;
    (2) Must meet the size standard corresponding to the NAICS code that 
the Mentor prime contractor believes best describes the product or 
service being acquired by the subcontract; and
    (c) Prot[eacute]g[eacute]s may have multiple mentors. 
Prot[eacute]g[eacute]s participating in mentor-prot[eacute]g[eacute] 
programs in addition to VA's Program should maintain a system for 
preparing separate reports of mentoring activity so that results of VA's 
Program can be reported separately from any other agency program.
    (d) A prot[eacute]g[eacute] firm shall self-represent to a mentor 
firm that it meets the requirements set forth in paragraph (b) of this 
section. Mentors shall confirm eligibility by documenting the verified 
status of the prot[eacute]g[eacute] in the VetBiz.gov VIP database. 
Prot[eacute]g[eacute]s must maintain verified status throughout the term 
of the Mentor-Prot[eacute]g[eacute] Agreement. Failure to do so shall 
result in cancellation of the Agreement.



Sec. 819.7107  Selection of Prot[eacute]g[eacute] firms.

    (a) Mentor firms will be solely responsible for selecting 
prot[eacute]g[eacute] firms. Mentors are encouraged to select from a 
broad base of SDVOSB or VOSB firms whose core competencies support VA's 
mission; and choose SDVOSB and/or VOSB prot[eacute]g[eacute]s in 
addition to firms with whom they have established business 
relationships.
    (b) Mentors may have multiple prot[eacute]g[eacute]s. However, to 
preserve the integrity of the Program and assure the quality of 
developmental assistance provided to prot[eacute]g[eacute]s, VA reserves 
the right to limit the total number of prot[eacute]g[eacute]s 
participating under each mentor firm for the Mentor-
Prot[eacute]g[eacute] Program.
    (c) The selection of prot[eacute]g[eacute] firms by mentor firms may 
not be protested, except that any protest regarding the size or 
eligibility status of an entity selected by a mentor shall be handled in 
accordance with the FAR and SBA regulations.



Sec. 819.7108  Application process.

    (a) Firms interested in becoming approved mentor-
prot[eacute]g[eacute] participants must submit a joint written VA 
Mentor-Prot[eacute]g[eacute] Agreement to the VA OSDBU for review and 
approval. The proposed Mentor-Prot[eacute]g[eacute] Agreement will be 
evaluated on the extent to which the mentor plans to provide 
developmental assistance. Evaluations will consider the nature and 
extent of technical and managerial support as well as any proposed 
financial assistance in the form of equity investment, loans, joint-
venture, and traditional subcontracting support.
    (b) The Mentor-Prot[eacute]g[eacute] Agreement must contain:
    (1) Names, addresses, phone numbers, and e-mail addresses (if 
available) of the mentor and prot[eacute]g[eacute] firm(s) and a point 
of contact for both mentor and prot[eacute]g[eacute] who will oversee 
the agreement;
    (2) A statement from the prot[eacute]g[eacute] firm that the firm is 
currently eligible as a SDVOSB or VOSB to participate in VA's Mentor-
Prot[eacute]g[eacute] Program;
    (3) A description of the mentor's ability to provide developmental 
assistance to the prot[eacute]g[eacute] and the type of developmental 
assistance that will be provided, to include a description of the types 
and dollar amounts of subcontract work, if any, that may be awarded to 
the prot[eacute]g[eacute] firm;
    (4) Duration of the Agreement, including rights and responsibilities 
of both parties (mentor and prot[eacute]g[eacute]), with bi-annual 
reviews;
    (5) Termination procedures, including procedures for the parties' 
voluntary withdrawal from the Program. The Agreement shall require the 
mentor or the prot[eacute]g[eacute] to notify the other firm and VA 
OSDBU in writing at least 30 days in advance of its intent to 
voluntarily terminate the Agreement;
    (6) A schedule with milestones for providing assistance;
    (7) Criteria for evaluation of the prot[eacute]g[eacute]'s 
developmental success;
    (8) A plan addressing how the mentor will increase the quality of 
the prot[eacute]g[eacute] firm's technical capabilities and contracting 
and subcontracting opportunities;

[[Page 217]]

    (9) An estimate of the total cost of the planned mentoring 
assistance to be provided to the Prot[eacute]g[eacute];
    (10) An agreement by both parties to comply with the reporting 
requirements of 819.7113;
    (11) A plan for accomplishing unfinished work should the Agreement 
be voluntarily cancelled;
    (12) Other terms and conditions, as appropriate; and
    (13) Signatures and date(s).
    (c) The Agreement defines the relationship between the mentor and 
the prot[eacute]g[eacute] firms only. The Agreement does not create any 
privity of contract between the mentor and VA or the 
prot[eacute]g[eacute] and VA.



Sec. 819.7109  VA review of application.

    (a) VA OSDBU will review the information to establish the mentor and 
prot[eacute]g[eacute] eligibility and to ensure that the information 
that is in VAAR 819.7108 is included. If the application relates to a 
specific contract, then OSDBU will consult with the responsible 
contracting officer on the adequacy of the proposed Agreement, as 
appropriate. OSDBU will complete its review no later than 30 calendar 
days after receipt of the application or after consultation with the 
contracting officer, whichever is later. There is no charge to apply for 
the Mentor-Prot[eacute]g[eacute] Program.
    (b) After OSDBU completes its review and provides written approval, 
the mentor may execute the Agreement and implement the developmental 
assistance as provided under the Agreement. OSDBU will post a copy of 
the Mentor-Prot[eacute]g[eacute] Agreements to a VA Web site to be 
accessible to VA contracting officers for review for any VA contracts 
affected by the Agreement.
    (c) If the application is disapproved, the mentor may provide 
additional information for reconsideration. OSDBU will complete review 
of any supplemental material no later than 30 days after its receipt. 
Upon finding deficiencies that VA considers correctable, OSDBU will 
notify the mentor and prot[eacute]g[eacute] and request correction of 
deficiencies to be provided within 15 days.



Sec. 819.7110  Developmental assistance.

    The forms of developmental assistance a mentor can provide to a 
prot[eacute]g[eacute] include, but are not limited to, the following:
    (a) Guidance relating to--
    (1) Financial management;
    (2) Organizational management;
    (3) Overall business management/planning;
    (4) Business development; and
    (5) Technical assistance.
    (b) Loans.
    (c) Rent-free use of facilities and/or equipment.
    (d) Property.
    (e) Temporary assignment of personnel to a Prot[eacute]g[eacute] for 
training.
    (f) Any other types of permissible, mutually beneficial assistance.



Sec. 819.7111  Obligations under the Mentor-Prot[eacute]g[eacute] 
          Program.

    (a) A mentor or prot[eacute]g[eacute] may voluntarily withdraw from 
the Program. However, in no event shall such withdrawal impact the 
contractual requirements under any prime contract with VA.
    (b) Mentors and prot[eacute]g[eacute]s shall submit reports to VA 
OSDBU in accordance with 819.7113.



Sec. 819.7112  Internal controls.

    (a) OSDBU will oversee the Program and will work cooperatively with 
relevant contracting officers to achieve Program objectives. OSDBU will 
establish internal controls as checks and balances applicable to the 
Program. These controls will include:
    (1) Reviewing and evaluating mentor applications for validity of the 
provided information;
    (2) Reviewing bi-annual progress reports submitted by mentors and 
prot[eacute]g[eacute]s on prot[eacute]g[eacute] development to measure 
prot[eacute]g[eacute] progress against the plan submitted in the 
approved Agreement;
    (3) Reviewing and evaluating financial reports and invoices 
submitted by the mentor to verify that VA is not charged by the mentor 
for providing developmental assistance to the prot[eacute]g[eacute]; and
    (4) Limiting the number of participants in the Mentor-
Prot[eacute]g[eacute] Program within a reporting period, in order to

[[Page 218]]

insure the effective management of the Program.
    (b) VA may rescind approval of an existing Mentor-
Prot[eacute]g[eacute] Agreement if it determines that such action is in 
VA's best interest. The rescission shall be in writing and sent to the 
mentor and prot[eacute]g[eacute] after approval by the OSDBU Director. 
Rescission of an Agreement does not change the terms of any subcontract 
between the mentor and the prot[eacute]g[eacute].



Sec. 819.7113  Reports.

    (a) Mentor and prot[eacute]g[eacute] entities shall submit to VA's 
OSDBU bi-annual reports on progress under the Mentor-
Prot[eacute]g[eacute] Agreement. VA will evaluate reports by considering 
the following:
    (1) Specific actions taken by the mentor during the evaluation 
period to increase the participation of their prot[eacute]g[eacute](s) 
as suppliers to VA, other government agencies and to commercial 
entities;
    (2) Specific actions taken by the mentor during the evaluation 
period to develop technical and administrative expertise of a 
prot[eacute]g[eacute] as defined in the Agreement;
    (3) The extent to which the prot[eacute]g[eacute] has met the 
developmental objectives in the Agreement;
    (4) The extent to which the mentor's participation in the Mentor-
Prot[eacute]g[eacute] Program impacted the prot[eacute]g[eacute]'(s) 
ability to receive contract(s) and subcontract(s) from private firms and 
federal agencies other than VA; and, if deemed necessary;
    (5) Input from the prot[eacute]g[eacute] on the nature of the 
developmental assistance provided by the mentor.
    (b) OSDBU will submit annual reports to the relevant contracting 
officer regarding participating prime contractor(s)' performance in the 
Program.
    (c) In addition to the written progress report in paragraph (a) of 
this section, at the mid-term point in the Mentor-Prot[eacute]g[eacute] 
Agreement, the mentor and the prot[eacute]g[eacute] shall formally brief 
the VA OSDBU regarding program accomplishments as pertains to the 
approved agreement.
    (d) Mentor and prot[eacute]g[eacute] firms shall submit an 
evaluation to OSDBU at the conclusion of the mutually agreed upon 
Program period, the conclusion of the contract, or the voluntary 
withdrawal by either party from the Program, whichever comes first.



Sec. 819.7114  Measurement of program success.

    The overall success of the VA Mentor-Prot[eacute]g[eacute] Program 
encompassing all participating mentors and prot[eacute]g[eacute]s will 
be measured by the extent to which it results in:
    (a) An increase in the quality of the technical capabilities of the 
prot[eacute]g[eacute] firm.
    (b) An increase in the number and dollar value of contract and 
subcontract awards to prot[eacute]g[eacute] firms since the time of 
their entry into the program attributable to the mentor-
prot[eacute]g[eacute] relationship (under VA contracts, contracts 
awarded by other Federal agencies and under commercial contracts.)



Sec. 819.7115  Solicitation provisions.

    (a) Insert 852.219-71, VA Mentor-Prot[eacute]g[eacute] Program, in 
solicitations that include FAR clause 52.219-9, Small Business 
Subcontracting Plan.
    (b) Insert 852.219-72, Evaluation Factor for Participation in the VA 
Mentor-Prot[eacute]g[eacute] Program, in solicitations that include an 
evaluation factor for participation in VA's Mentor-Prot[eacute]g[eacute] 
Program in accordance with 819.7105 and that also include FAR clause 
52.219-9, Small Business Subcontracting Plan.

      PART 822_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

       Subpart 822.3_Contract Work Hours and Safety Standards Act

Sec.

Sec. 822.304 Variations, tolerances, and exemptions.

Sec. 822.305 Contract clause.

   Subpart 822.4_Labor Standards for Contracts Involving Construction


Sec. 822.406 Administration and enforcement.

Sec. 822.406-11 Contract terminations.

    Authority: 29 CFR 5.15(d); 40 U.S.C. 121(c); 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

[[Page 219]]

       Subpart 822.3_Contract Work Hours and Safety Standards Act



Sec. 822.304  Variations, tolerances, and exemptions.

    When issuing a contract for nursing home care, a contracting officer 
may exempt a contractor from certain requirements of the Contract Work 
Hours and Safety Standards Act (40 U.S.C. 3701-3708) regarding the 
payment of overtime (see 29 CFR 5.15(d)(2) and 852.222-70).



Sec. 822.305  Contract clause.

    The contracting officer shall insert the clause at 852.222-70, 
Contract Work Hours and Safety Standards Act--nursing home care contract 
supplement, in solicitations and contracts for nursing home care when 
the FAR clause at 52.222-4, Contract Work Hours and Safety Standards 
Act--Overtime Compensation, is included.

   Subpart 822.4_Labor Standards for Contracts Involving Construction



Sec. 822.406  Administration and enforcement.



Sec. 822.406-11  Contract terminations.

    (a) Contracting officers must submit any proposed termination of a 
contract based on violations of the labor standard provisions of the 
contract to OGC for review and comment prior to taking final action. The 
submittal must include a detailed explanation of the facts and 
circumstances involved. Contracting officers, except those in the Office 
of Construction and Facilities Management, shall forward the submittal 
to OGC through the DSPE. Contracting officers in the Office of 
Construction and Facilities Management shall forward the submittal to 
OGC through the Director, Office of Construction and Facilities 
Management.
    (b) If the contract is to be terminated, the DSPE or the Director, 
Office of Construction and Facilities Management, must submit the 
reports required by 29 CFR 5.7(d) over the signature of the SPE.

  PART 823_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
  TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE [RESERVED]

        PART 824_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 824.1_Protection of Individual Privacy

Sec.

Sec. 824.102 General.

                Subpart 824.2_Freedom of Information Act


Sec. 824.203 Policy.

    Authority: 38 CFR 1.550-1.559 and 1.575-1.584; 40 U.S.C. 121(c), and 
48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

             Subpart 824.1_Protection of Individual Privacy



Sec. 824.102  General.

    VA rules implementing the Privacy Act of 1974 are in 38 CFR 1.575 
through 1.584.

                Subpart 824.2_Freedom of Information Act



Sec. 824.203  Policy.

    VA rules implementing the Freedom of Information Act are in 38 CFR 
1.550 through 1.559.

                      PART 825_FOREIGN ACQUISITION

                 Subpart 825.1_Buy American Act_Supplies

Sec.

Sec. 825.103 Exceptions.

Sec. 825.104 Nonavailable articles.

          Subpart 825.2_Buy American Act_Construction Materials


Sec. 825.202 Exceptions.

Sec. 825.205 Post-award determinations.

                      Subpart 825.6_Trade Sanctions


Sec. 825.602 Exceptions.

[[Page 220]]

      Subpart 825.8_Other International Agreements and Coordination


Sec. 825.870 Technical assistance.

                    Subpart 825.9_Customs and Duties


Sec. 825.902 Procedures.

Sec. 825.902-70 Technical assistance.

        Subpart 825.10_Additional Foreign Acquisition Regulations


Sec. 825.1001 Waiver of right to examination of records.

       Subpart 825.11_Solicitation Provisions and Contract Clauses


Sec. 825.1102 Acquisition of construction.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                 Subpart 825.1_Buy American Act_Supplies



Sec. 825.103  Exceptions.

    (a) Public interest. When a contracting officer believes that a 
determination that domestic preference would be inconsistent with the 
public interest is necessary under FAR 25.103(a), the contracting 
officer must submit the request for determination to the DSPE for 
submission to the SPE, who will forward the request to the Secretary for 
approval. The request for determination must contain all the facts and 
other pertinent information upon which a determination may be made.
    (b) Non-availability. (1) For each determination of non-availability 
made in accordance with FAR 25.103(b)(2)(i), the HCA must do the 
following:
    (i) Factually support the determination and include the supporting 
facts in the contract file.
    (ii) Forward a copy of the determination, along with supporting 
documentation, to the DSPE.
    (2) If the HCA believes that the non-availability of an article is 
likely to affect future acquisitions, include a recommendation that a 
copy of the determination and supporting documentation be forwarded to 
the Civilian Agency Acquisition Council (CAAC) for possible addition to 
the list of non-available articles in FAR 25.104. The DSPE will decide 
whether to submit the material to the CAAC.



Sec. 825.104  Nonavailable articles.

    The following items are added to the list of nonavailable articles 
contained in FAR 25.104:


Glass, lead

Insulin, human

          Subpart 825.2_Buy American Act_Construction Materials



Sec. 825.202  Exceptions.

    (a) When a determination is required under FAR 25.202(a)(1), the 
contracting officer must submit the request for determination to the 
DSPE for submission to the SPE, who will forward the request to the 
Secretary. The submission must contain all the facts and other pertinent 
information necessary for the Secretary to make a determination.
    (b) For each determination of non-availability that the HCA makes in 
accordance with FAR 25.202(a)(2), the HCA must do the following:
    (1) Factually support the determination in writing and include the 
determination in the contract file.
    (2) Forward a copy of the determination, along with supporting 
documentation, to the Director, Office of Construction and Facilities 
Management, through the DSPE.
    (3) If the HCA believes that the non-availability of an article is 
likely to affect future acquisitions, include a recommendation that a 
copy of the determination and supporting documentation be forwarded to 
the Civilian Agency Acquisition Council (CAAC) for possible addition to 
the list of non-available articles in FAR 25.104. The DSPE will decide 
whether to submit the material to the CAAC.



Sec. 825.205  Post-award determinations.

    A post-award determination that an exception to the Buy American Act 
applies, as provided in FAR 25.205(c), will be made in accordance with 
FAR 25.202 and 825.202.

[[Page 221]]

                      Subpart 825.6_Trade Sanctions



Sec. 825.602  Exceptions.

    When the contracting officer determines it to be in the best 
interest of the Government, the contracting officer may request an 
exception to the requirements of FAR 25.601 from the Secretary through 
the DSPE and the SPE. Each such request must be fully justified and 
include all pertinent facts, as provided in FAR 25.602(b). The SPE is 
responsible for notifying the U.S. Trade Representative of approved 
requests, as required by FAR 25.602(b)(2).

      Subpart 825.8_Other International Agreements and Coordination



Sec. 825.870  Technical assistance.

    Contracting officers may obtain technical information or guidance on 
international agreements and treaties for procurements outside of the 
United States by contacting the Executive Director and Chief Operating 
Officer, VA National Acquisition Center.

                    Subpart 825.9_Customs and Duties



Sec. 825.902  Procedures.



Sec. 825.902-70  Technical assistance.

    Should the regulations contained in FAR Subpart 25.9 be inadequate 
to meet the particular needs of the contracting officer in clearing 
items through customs and/or obtaining duty-free entry of goods, the 
contracting officer should contact the nearest U.S. Customs and Boarder 
Protection office for technical assistance. The location of the nearest 
office can be found at http://www.customs.gov/xp/cgov/toolbox/contacts/
cmcs/.

        Subpart 825.10_Additional Foreign Acquisition Regulations



Sec. 825.1001  Waiver of right to examination of records.

    (a) The contracting officer must prepare proposed determinations and 
findings to use either of the following:
    (1) Alternate I of the FAR clause at 52.212-5, Contract Terms and 
Conditions Required to Implement Statutes or Executive Orders--
Commercial Items.
    (2) Alternate III of the FAR clause at 52.215-2, Audit and Records--
Negotiation.
    (b) The contracting officer must submit the determinations and 
findings to the DSPE for submission to the SPE, who will forward the 
request to the Secretary for the signature, as provided in FAR 
25.1001(a)(2)(iii). The submission must include all appropriate 
documentation.
    (c) The Secretary, upon concurring with the contracting officer's 
proposed determination and findings, will, if required by FAR 
25.1001(a)(2)(iii), forward the document to the Comptroller General for 
concurrence.
    (d) The completed determination and findings will be made part of 
the contract file.

       Subpart 825.11_Solicitation Provisions and Contract Clauses



Sec. 825.1102  Acquisition of construction.

    The Buy American Act (41 U.S.C. 10a-d), except as modified by 
various trade agreements (see FAR Part 25), requires that only domestic 
construction material be used in the performance of contracts for 
construction. For solicitations and contracts for construction that 
contain a FAR clause related to the Buy American Act, the contracting 
officer shall insert the applicable VAAR clause, with or without an 
alternate, as shown in Table 825.1102:

                             Table 825.1102
------------------------------------------------------------------------
                FAR clause                     VAAR clause to be used
------------------------------------------------------------------------
FAR 52.225-9, Buy American Act--            852.236-89, Buy American
 Construction Materials.                     Act.
FAR clause 52.225-11, Buy American Act--    852.236-89, Buy American
 Construction Materials under Trade          Act, with its Alternate I.
 Agreements, without its Alternate I (see
 FAR 25.1102(c)).
FAR clause 52.225-11, Buy American Act--    852.236-89, Buy American
 Construction Materials under Trade          Act, with its Alternate II.
 Agreements, with its Alternate I (see FAR
 25.1102(c)(3)).
------------------------------------------------------------------------


[[Page 222]]

            PART 826_OTHER SOCIOECONOMIC PROGRAMS [RESERVED] 




[[Page 223]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                      PART 828_BONDS AND INSURANCE

           Subpart 828.1_Bonds and Other Financial Protections

Sec.

Sec. 828.101 Bid guarantees.

Sec. 828.101-2 Solicitation provision or contract clause.

Sec. 828.101-70 Safekeeping and return of bid guarantee.

Sec. 828.106 Administration.

Sec. 828.106-6 Furnishing information.

Sec. 828.106-70 Bond premium adjustment.

Sec. 828.106-71 Assisting service-disabled veteran-owned and veteran-
          owned small businesses in obtaining bonding.

Sec. 828.106-72 Contract provision.

           Subpart 828.2_Sureties and Other Security for Bonds


Sec. 828.203 Acceptability of individual sureties.

Sec. 828.203-7 Exclusion of individual sureties.

                         Subpart 828.3_Insurance


Sec. 828.306 Insurance under fixed-price contracts.

   Subpart 828.71_Indemnification of Contractors, Medical Research or 
                          Development Contracts


Sec. 828.7100 Scope of subpart.

Sec. 828.7101 Approval for indemnification.

Sec. 828.7102 Extent of indemnification.

Sec. 828.7103 Financial protection.

    Authority: 38 U.S.C. 501, 8127, 8128 and 8151-8153; 40 U.S.C. 
121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

           Subpart 828.1_Bonds and Other Financial Protections



Sec. 828.101  Bid guarantees.



Sec. 828.101-2  Solicitation provision or contract clause.

    When a bid bond is required for supplies or services, the phrase 
``any cost of acquiring the work'' in paragraph (e) of the Bid Guarantee 
clause in FAR 52.228-1 may be modified to refer to the cost of 
``supplies,'' ``services,'' etc.



Sec. 828.101-70  Safekeeping and return of bid guarantee.

    (a) The contracting officer must retain, in a safe, certified checks 
or other negotiable security provided as bid security for the three 
lowest acceptable bids. After the contract and contract bonds have been 
signed and approved, the contracting officer must return the certified 
checks or other negotiable securities either:
    (1) In person to the bidder who provides a proper receipt; or
    (2) By any method that will provide evidence that the bidder 
received the security.
    (b) The contracting officer should promptly return certified checks 
or other negotiable security furnished in support of bids, other than 
those determined to be the three lowest acceptable bids, to the 
respective bidders either:
    (1) In person to the bidder who provides a proper receipt; or
    (2) By any method that will provide evidence that the bidder 
received the security.
    (c) The contracting officer will not return commercial bid bonds 
unless specifically requested to do so by the bidders. If any of the 
three low bidders request the return of a commercial bid bond, the 
contracting officer will not return those bid bonds until the contract 
and contract bonds have been executed by the successful bidder and 
approved by the contracting officer or all bids have been rejected.



Sec. 828.106  Administration.



Sec. 828.106-6  Furnishing information.

    The contracting officer for the applicable contract will furnish 
copies of payment bonds to a requestor under the provisions of FAR 
28.106-6(c).



Sec. 828.106-70  Bond premium adjustment.

    When performance and payment bonds or payment protection are 
required, the contract must contain the clause in 852.228-70, Bond 
premium adjustment.

[[Page 224]]



Sec. 828.106-71  Assisting service-disabled veteran-owned and veteran-
          owned small businesses in obtaining bonding.

    VA prime contractors are encouraged to assist SDVOSB concerns and 
VOSB concerns in obtaining subcontractor performance and payment bonds. 
Mentors are especially encouraged to assist their prot[eacute]g[eacute]s 
in obtaining bid, payment, and performance bonds as prime contractors 
and bonds as subcontractors when bonds are required.

[74 FR 64636, Dec. 8, 2009]



Sec. 828.106-72  Contract provision.

    Insert 852.228-72, Assisting Service-Disabled Veteran-Owned and 
Veteran-Owned Small Businesses in Obtaining Bonds, in solicitations that 
include FAR clause 52.228-1, Bid Guarantee.

[74 FR 64636, Dec. 8, 2009]

           Subpart 828.2_Sureties and Other Security for Bonds



Sec. 828.203  Acceptability of individual sureties.



Sec. 828.203-7  Exclusion of individual sureties.

    The DSPE may make the determinations referenced in FAR 28.203-7:
    (a) To exclude individuals from acting as surety on bonds; and
    (b) To accept bonds from individuals named on the Excluded Parties 
List System.

                         Subpart 828.3_Insurance



Sec. 828.306  Insurance under fixed-price contracts.

    (a) Term contracts, or contracts of a continuing nature, for 
ambulance, automobile and aircraft service, must contain the provision 
in 852.228-71, Indemnification and insurance.
    (b) Paragraph (a) of this section does not apply to emergency or 
sporadic ambulance service authorized by VA Manual MP-1, Part II, 
Chapter 3, or other emergency or sporadic vehicle or aircraft services 
if both of the following conditions exist:
    (1) The service is not used solely for the purpose of avoiding 
entering into a continuing contract.
    (2) The services will be obtained from firms known to carry 
insurance coverage in accordance with State or local requirements.

   Subpart 828.71_Indemnification of Contractors, Medical Research or 
                          Development Contracts



Sec. 828.7100  Scope of subpart.

    (a) This subpart sets forth the policies and procedures concerning 
indemnification of contractors performing contracts covering medical 
research or development that involve risks of an unusually hazardous 
nature, as authorized by 38 U.S.C. 7317.
    (b) The authority to indemnify the contractor under this subpart 
does not create any rights to third parties that would not otherwise 
exist by law.
    (c) As used in this subpart, the term ``contractor'' includes 
subcontractors of any tier under a contract containing an 
indemnification provision under 38 U.S.C. 7317. (38 U.S.C. 7317)



Sec. 828.7101  Approval for indemnification.

    (a) The Secretary of Veterans Affairs will make the approval 
determinations for the indemnification of contractors.
    (b) Contracting officers must submit requests for approval, together 
with all available information, to the DSPE for submission to the SPE, 
who will forward the request to the Secretary for approval. (38 U.S.C. 
7317)



Sec. 828.7102  Extent of indemnification.

    (a) A contract for medical research or development authorized by 38 
U.S.C. 7303, may provide that the Government will indemnify the 
contractor against losses or liability specified in paragraphs (b) and 
(c) of this section if all of the following apply:
    (1) The contract work involves a risk of an unusually hazardous 
nature.
    (2) The losses or liability arise out of the direct performance of 
the contract.
    (3) The losses or liability are not covered by the financial 
protection required under 828.7103.
    (b) The Government may indemnify a contractor for liability 
(including reasonable expenses of litigation or settlement) to third 
persons for death, bodily

[[Page 225]]

injury, or loss of or damage to property from a risk that the contract 
defines as unusually hazardous. The indemnification will not cover 
liability under State or Federal worker's injury compensation laws to 
employees of the contractor who are both:
    (1) Employed at the site of the contract work; and
    (2) Working on the contract for which indemnification is granted.
    (c) The Government may indemnify the contractor for loss of or 
damage to property of the contractor from a risk that the contract 
defines as unusually hazardous.
    (d) A contract that provides for indemnification in accordance with 
this subpart must also require that:
    (1) The contractor must notify the contracting officer of any claim 
or suit against the contractor for death, bodily injury, or loss of or 
damage to property; and
    (2) The Government may choose to control or assist in the defense of 
any suit or claim for which indemnification is provided in the contract. 
(38 U.S.C. 7317)



Sec. 828.7103  Financial protection.

    (a) A contractor must have and maintain an amount of financial 
protection to cover liability to third persons and loss of or damage to 
the contractor's property that meets one of the following:
    (1) The maximum amount of insurance available from private sources.
    (2) A lesser amount that the Secretary establishes after taking into 
consideration the cost and terms of private insurance.
    (b) Financial protection may include private insurance, private 
contractual indemnities, self-insurance, other proof of financial 
responsibility, or a combination that provides the maximum amount 
required. If a contractor elects to self-insure, the contractor must 
provide the contracting officer, before award, proof of financial 
responsibility up to the maximum amount required. (38 U.S.C. 7317)

                             PART 829_TAXES

Sec.

Sec. 829.000 Scope of part.

                   Subpart 829.2_Federal Excise Taxes


Sec. 829.202 General exemptions.

Sec. 829.202-70 Tax exemptions for alcohol products.

                   Subpart 829.3_State and Local Taxes


Sec. 829.302 Application of State and local taxes to the Government.

Sec. 829.302-70 Purchases made from patients' funds.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.



Sec. 829.000  Scope of part.

    This part states the policies and procedures for the following:
    (a) Exemptions of alcohol products purchased for use by the VA 
medical care program from Federal excise taxes.
    (b) Specified refund procedures for State and local taxes.

                   Subpart 829.2_Federal Excise Taxes



Sec. 829.202  General exemptions.



Sec. 829.202-70  Tax exemptions for alcohol products.

    (a) General. (1) VA is permitted to procure spirits to be used for 
non-beverage purposes free of tax under the Alcohol and Tobacco Tax and 
Trade Bureau (TTB) regulations (see 27 CFR 19.538 and 19.539, 20.241 
through 20.246, 22.161 and 22.162, 22.171 through 22.176, 24.293, and 
25.181 through 25.185). The use of tax-free alcohol, whiskey, beer, 
wine, and denatured spirits for non-beverage purposes shall include, but 
is not limited to, medicinal and scientific purposes.
    (2) The Executive Director and Chief Operating Officer, National 
Acquisition Center, and the Head of the Contracting Activity may sign 
application permits on Department of Treasury-TTB Form 5150.33, Spirits 
for Use of The United States. This authority may not be delegated.
    (b) Whiskey, alcohol, and denatured alcohol. (1) The contracting 
officer may obtain application forms for tax-free purchases from the TTB 
Distribution Center, P.O. Box 5950, Springfield, VA

[[Page 226]]

22150-5950. The completed forms must be submitted to the Associate 
Director (Compliance Operations), Alcohol and Tobacco Tax and Trade 
Bureau, Washington, DC 20226.
    (2) Permits previously issued on Alcohol, Tobacco, and Firearms 
(ATF) Form 1444, Tax-Free Spirits for Use of United States, remain valid 
until surrendered or cancelled. A copy of the current ATF Form 1444 or 
TTB Form 5150.33 must be made available to the supplier with the initial 
order. The permit number only needs to be referenced on any future 
orders with the same supplier.
    (3) Contracting officers may make purchases of excise tax-free 
whiskey and alcohol only from qualified distillery plants or bonded 
dealers. The accountable officer must ensure that accurate records of 
all receipts, usage, and destruction of tax-free distilled spirits are 
maintained at each medical center and must conduct a semi-annual 
physical inventory of the tax-free alcohol in the possession of the 
medical center (see 27 CFR 22.161 and 22.162).
    (c) Wine. No tax exemption form or ATF/TTB permit is required for 
the tax-free procurement of wine from bonded wine premises. The purchase 
order must show the kind, quantity, and alcohol content of the wine and 
must state the purpose for which wine is to be used (see 27 CFR 24.293). 
An extra copy of a properly executed purchase order may be furnished to 
the bonded wine premises from which wine is purchased to facilitate 
record keeping.
    (d) Beer. The contracting officer may procure tax-free beer only 
from licensed breweries and only when such product is prescribed for 
patients' therapeutic use.
    (1) The contracting officer must submit an application for a TTB 
permit to purchase tax-free beer in letter form to the Director of the 
nearest TTB Regional Office or to the Director, Alcohol and Tobacco Tax 
and Trade Bureau, Washington, DC 20226. The following information must 
be included:
    (i) Name and address of facility.
    (ii) Specific purpose for which the beer will be used.
    (iii) Quantity proposed to buy each month, year, etc.
    (iv) Name and address of brewery.
    (v) Copy of document authorizing the head of the contracting 
activity to sign the request (i.e., paragraph (a)(2) of this section).
    (2) The contracting officer must obtain a separate permit for each 
brewery from which beer is to be purchased.

                   Subpart 829.3_State and Local Taxes



Sec. 829.302  Application of State and local taxes to the Government.

    (a) If a vendor refuses to sell at a price exclusive of the State 
and local tax, the contracting officer must use Standard Form (SF) 1094, 
U.S. Tax Exemption Certificate, as a basis for billing taxing 
authorities for a refund of taxes paid.
    (b) A contracting officer may not furnish an SF 1094 to a vendor or 
use SF 1094 to claim reimbursement from the taxing authority when the 
total amount of State and local tax on any one purchase is $10 or less.



Sec. 829.302-70  Purchases made from patients' funds.

    The contracting officer shall insert the clause at 852.229-70, Sales 
or use taxes, in solicitations and contracts when items are to be 
purchased solely from the personal funds of patients.

      PART 830_COST ACCOUNTING STANDARDS ADMINISTRATION [RESERVED]

            PART 831_CONTRACT COST PRINCIPLES AND PROCEDURES

         Subpart 831.70_Contract Cost Principles and Procedures

Sec.

Sec. 831.7000 Scope of subpart.

Sec. 831.7001 Allowable costs under cost reimbursement vocational 
          rehabilitation and education contracts or agreements.

Sec. 831.7001-1 Tuition.

Sec. 831.7001-2 Special services or courses.

Sec. 831.7001-3 Books, supplies, and equipment required to be personally 
          owned.

Sec. 831.7001-4 Medical services and hospital care.

Sec. 831.7001-6 Consumable instructional supplies.

[[Page 227]]


Sec. 831.7001-7 Reimbursement for other supplies and services.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

         Subpart 831.70_Contract Cost Principles and Procedures



Sec. 831.7000  Scope of subpart.

    This subpart contains general cost principles and procedures for the 
determination and allowance of costs in connection with the negotiation 
and administration of cost reimbursement type contracts for providing 
vocational rehabilitation, education, and training to eligible veterans 
under 38 U.S.C. Chapter 31, (referred to as a ``Chapter 31 program'').



Sec. 831.7001  Allowable costs under cost reimbursement vocational 
          rehabilitation and education contracts or agreements.



Sec. 831.7001-1  Tuition.

    (a) Except as provided in this section, when the contractor has a 
customary cost of tuition, the charge to VA may not exceed that charged 
to similarly circumstanced nonveteran students. If the contractor has 
more than one standard charge for the same service, the charge to VA 
must be the lowest price that is offered or published for the entire 
course, semester, quarter, or term.
    (b) VA will not normally pay tuition or incidental fees to 
institutions or establishments furnishing apprentice or other on-the-job 
training. VA may elect to pay charges or expenses that fall into either 
of the following categories:
    (1) Charges customarily made by a nonprofit workshop or similar 
establishment for providing work adjustment training to similarly 
circumstanced nonveterans even if the trainee receives an incentive wage 
as part of the training.
    (2) Training expenses incurred by an employer who provides on-the-
job training following rehabilitation to the point of employability when 
VA determines that the additional training is necessary.
    (c) When Federal funds pay the total cost of instruction, or grants 
from the Federal Government pay a portion of the cost (e.g., Smith-
Hughes or other laws, excluding Federal Land Grant Funds), that subsidy 
will be taken into consideration in determining the charge to VA. The 
term ``Federal Land Grant Funds'' refers to those funds received under 
the Morrill-Nelson Act (Morrill Acts of 1862 and 1890 and the Nelson 
amendment of 1907) and section 22 of the Bankhead-Jones Act of 1935.
    (d) A veteran who is participating in a Chapter 31 program and 
receives an award of a fellowship, scholarship, grant-in-aid, 
assistantship, or similar award will have that award treated according 
to the following requirements:
    (1) If the award limits its use to payment of tuition, fees, or any 
charge that VA normally pays as part of a Chapter 31 program, VA will 
pay the portion of the charges remaining after applying the award.
    (2) In all other cases, VA will pay the full amount of the tuition, 
fees, or other charges.
    (e) If a State or other Government authority waives a veteran's 
tuition and fees, VA will reduce its payment of those charges by the 
amount of the waiver.
    (f) VA will pay enrollment fees for registration if both of the 
following conditions exist:
    (1) The institution or training establishment usually makes this 
charge.
    (2) The charge is not more than other students or trainees pay.



Sec. 831.7001-2  Special services or courses.

    Special services or courses are those services or courses that VA 
requests that are over and above those the institution customarily 
provides for similarly circumstanced nonveterans and that the 
contracting officer considers to be necessary for the rehabilitation of 
the trainee. VA will negotiate the costs of special services or courses 
before paying them.



Sec. 831.7001-3  Books, supplies, and equipment required to be 
          personally owned.

    (a) Reimbursement for supplies (including books, equipment, or other

[[Page 228]]

supplies) will be made as provided in this section.
    (b) VA will provide reimbursement for those supplies that all 
students taking the same course or courses are customarily required to 
own personally. In addition, VA may provide reimbursement for items that 
the school does not specifically require for pursuit of the course, but 
that VA determines are needed because of the demands of the course, 
general possession by other students, and the disadvantage imposed on a 
veteran by not having the item. In no instance will VA provide 
reimbursement for supplies in a greater variety, quality, or amount than 
required of nonveteran students. In this instance, an item is not 
considered to be required if it is ``requested'' or ``desirable to 
have'' or ``necessary for a future profession or job but not required by 
the institution of all students in the course''.
    (c) When supplies are available in several prices, grades, or 
qualities, VA will provide reimbursement only for that quality or grade 
that will meet the requirements.
    (d) Partial payment agreements, in which VA shares payment with the 
veterans, are not allowed.
    (e) The institution's costs in connection with a veteran's thesis 
are considered supplies and are therefore authorized for reimbursement 
if the veteran's committee chairman, major professor, department head, 
or appropriate dean certifies that the thesis is a course requirement 
and the expenses are required to complete the thesis. These expenses may 
include research expenses, typing, printing, microfilming, or otherwise 
reproducing the required number of copies.
    (f) When the institution operates a bookstore or supply store for 
all students, reimbursement to the bookstore or supply store for 
supplies issued to trainees will be no greater than charges made to 
nonveteran students.
    (g) When the institution, training establishment, or employer 
arranges for stores or other non-institutionally owned establishments to 
issue supplies to all students and a veteran is to pay the store or 
establishment for supplies issued to trainees, VA will provide 
reimbursement for those charges if they are no greater than those 
nonveterans pay or paid to the institutions, whichever is the lesser.
    (h) Supplies that the institution purchases specifically for 
trainees will be reimbursed at the net cost to the institution.
    (i) When the institution does not provide or arrange for issuance of 
generally required books, tools and supplies for students attending the 
facility, the institution, in cooperation with VA, may designate certain 
stores and establishments to provide generally required books, tools and 
supplies for veterans pursuing a vocational rehabilitation program. The 
vendor will be reimbursed in the same manner as for supplies provided or 
arranged for by the institutions.
    (j) When it is customary in a survey class to permit each student to 
rent books for the subject (commonly referred to as a rental set), and 
the student is not required to own the books/materials, reimbursement is 
authorized for the rental charge as long as it does not exceed the 
charge made to nonveteran students.
    (k) Educational and training institutions that furnish supplies to 
trainees that all students pursuing the same or similar course are 
required to own personally or obtain may be compensated for furnishing 
the supplies in an amount not exceeding 10 percent of the allowable 
charge for the supplies furnished or rented subject to the following 
conditions:
    (1) When the tuition covers the charges for supplies or rentals or a 
stipulated fee is assessed to all students, handling charges are not 
allowable.
    (2) The handling charge is not allowable for Government-owned books 
that the institution procures from the Library of Congress.



Sec. 831.7001-4  Medical services and hospital care.

    (a) VA may pay the customary student health fee when payment of the 
fee is required for similarly circumstanced nonveterans. If payment of 
the fee is not required for similarly circumstanced nonveterans, payment 
may be made if it is determined by the Veterans Health Administration 
that

[[Page 229]]

payment is in the best interest of the veteran and the Government.
    (b) When the customary student's health fee does not cover medical 
services or hospital care, but these medical services are available in a 
school-operated facility or with doctors and hospitals in the immediate 
area through a prior arrangement, the Veterans Benefits Administration 
may provide reimbursement for these services in a contract for the 
services if:
    (1) An arrangement is necessary to provide timely medical services 
for veterans attending the facility under provisions of chapter 31; and
    (2) The general rates established for medical services do not exceed 
the rates established by the Under Secretary for Health.
    (c) VA may reimburse a rehabilitation facility for incidental 
medical services provided during a veteran's program at the facility.



Sec. 831.7001-6  Consumable instructional supplies.

    (a) VA will provide reimbursement for consumable instructional 
supplies that the institution requires for the instruction of all 
students, veteran or nonveteran, pursuing the same or comparable course 
or courses when:
    (1) The supplies are entirely consumed in the fabrication of a 
required project; or
    (2) The supplies are not consumed but are of such a nature that they 
cannot be salvaged from the end product for reuse by disassembling or 
dismantling the end product.
    (b) VA will not provide reimbursement for consumable instructional 
supplies if any of the following apply:
    (1) The supplies can be salvaged for reuse.
    (2) The supplies are used in a project that the student has elected 
as an alternate class project to produce an end product of greater value 
than that normally required to learn the skills of the occupation, and 
the end product will become the veteran's property upon completion.
    (3) The supplies are used in a project that the institution has 
selected to provide the student with a more elaborate end product than 
is required to provide adequate instruction as an inducement to the 
veteran to elect a particular course of study.
    (4) The sale value of the end product is equal to or greater than 
the cost of supplies plus assembly, and the supplies have not been 
reasonably used so that the supplies are not readily salvaged from the 
end product to be reused for instructional purposes.
    (5) The end product is of permanent value and retained by the 
institution.
    (6) A third party loans the articles or equipment for repair or 
improvement and the third party would otherwise pay a commercial price 
for the repair or improvement.
    (7) The number of projects resulting in end products exceeds the 
number normally required to teach the recognized job operations and 
processes of the occupation stipulated in the approved course of study.
    (8) The cost of supplies is included in the charge for tuition or as 
a fee designated for such purpose.



Sec. 831.7001-7  Reimbursement for other supplies and services.

    VA will provide reimbursement for other services and assistance that 
may be authorized under provisions of applicable chapter 31 regulations, 
including, but not limited to, employment and self-employment services, 
initial and extended evaluation services, and independent living 
services.

                       PART 832_CONTRACT FINANCING

Sec.

Sec. 832.006 Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 832.006-1 General.

Sec. 832.006-2 Definitions.

Sec. 832.006-3 Responsibilities.

Sec. 832.006-4 Procedures.

          Subpart 832.1_Non-Commercial Item Purchase Financing


Sec. 832.111 Contract clauses for non-commercial purchases.

            Subpart 832.2_Commercial Item Purchase Financing


Sec. 832.201 Statutory authority.

Sec. 832.202 General.

Sec. 832.202-1 Policy.

Sec. 832.202-4 Security for Government financing.

[[Page 230]]

         Subpart 832.4_Advance Payments for Non-Commercial Items


Sec. 832.402 General.

Sec. 832.404 Exclusions.

             Subpart 832.5_Progress Payments Based on Costs


Sec. 832.502 Preaward matters.

Sec. 832.502-2 Contract finance office clearance.

                   Subpart 832.8_Assignment of Claims


Sec. 832.805 Procedure.

Sec. 832.805-70 Distribution/notification of assignment of claims.

                      Subpart 832.9_Prompt Payment


Sec. 832.904 Determining payment due dates.

                Subpart 832.11_Electronic Funds Transfer


Sec. 832.1106 EFT mechanisms.

            Subpart 832.70_Electronic Invoicing Requirements


Sec. 832.7000 General.

Sec. 832.7001 Definitions.

Sec. 832.7002 Electronic payment requests.

Sec. 832.7002-1 Data transmission.

Sec. 832.7002-2 Contract clause.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.



Sec. 832.006  Reduction or suspension of contract payments upon finding 
          of fraud.



Sec. 832.006-1  General.

    The SPE is authorized to make determinations that there is 
substantial evidence that contractors' requests for advance, partial, or 
progress payments are based on fraud and may direct that further 
payments to the contractors be reduced or suspended, as provided in FAR 
32.006. This authority may not be redelegated.



Sec. 832.006-2  Definitions.

    The remedy coordination official for VA is the DSPE.



Sec. 832.006-3  Responsibilities.

    VA personnel must report suspected fraud related to advance, 
partial, or progress payments to the DSPE and VA Office of the Inspector 
General. The report must include all available information supporting 
the suspicion.



Sec. 832.006-4  Procedures.

    (a) Any recommendation from a VA employee through the DSPE to the 
SPE to reduce or suspend payment to a contractor under FAR 32.006 must 
address the considerations in FAR 32.006-4(d).
    (b) The DSPE shall carry out the responsibilities of the Secretary 
or designee in FAR 32.006-4(e) to notify the contractor of proposed 
action under FAR 32.006. The notice of proposed action will be sent to 
the last known address of the contractor, the contractor's counsel, or 
agent for service of process, by certified mail, return receipt 
requested, or any other method that provides signed evidence of receipt. 
In the case of a business, the notice of proposed action may be sent to 
any partner, principal, officer, director, owner or co-owner, or joint 
venture. The contractor will be afforded an opportunity to appear before 
the DSPE to present information or argument in person or through a 
representative. The contractor may supplement the oral presentation with 
written information and argument. The proceedings will be conducted in 
an informal manner and without the requirement for a transcript. If the 
DSPE does not receive a reply from the contractor within 30 calendar 
days, the DSPE will base his or her recommendations on the information 
available. Any recommendation of the DSPE under paragraph (a) of this 
section must address the results of this notification and the 
information, if any, provided by the contractor.
    (c) The SPE must provide a copy of each final determination and the 
supporting documentation to the contractor, the DSPE and the contracting 
officer. The contracting officer will place a copy of the determination 
and the supporting documentation in the contract file.

[[Page 231]]

          Subpart 832.1_Non-Commercial Item Purchase Financing



Sec. 832.111  Contract clauses for non-commercial purchases.

    In solicitations and contracts for construction that include the FAR 
clause at 52.232-5, Payments under Fixed-Price Construction Contracts, 
the contracting officer shall insert the following clauses:
    (a) If the solicitation or contract does not contain a section 
entitled ``Network Analysis System (NAS),'' the contracting officer must 
insert the clause at 852.236-82, Payments under fixed-price construction 
contracts (without NAS). When the solicitation or contract includes 
guarantee period services, the contracting officer must use the clause 
with its Alternate I.
    (b) If the solicitation or contract contains a section entitled 
``Network Analysis System (NAS),'' the contracting officer must insert 
the clause at 852.236-83, Payments under fixed-price construction 
contracts (including NAS). When the solicitation or contract includes 
guarantee period services, the contracting officer must use the clause 
with its Alternate I.

            Subpart 832.2_Commercial Item Purchase Financing



Sec. 832.201  Statutory authority.

    The contracting officer may make the determination that terms and 
conditions for payment for commercial items are appropriate and 
customary in the commercial marketplace and are in the best interest of 
the Government, provided the terms and conditions for payment do not 
conflict with FAR Subpart 32.2.



Sec. 832.202  General.



Sec. 832.202-1  Policy.

    As provided in FAR 32.202-1(d), contracting officers must obtain the 
approval of the DSPE before awarding a contract that includes unusual 
contract financing. The contracting officer must fully support the 
request with the reasons why the proposed unusual contract financing is 
in the best interest of the Government. In addition, contracting 
officers must not use commercial interim payment or commercial advance 
payment terms in solicitations or contracts without the approval of the 
DSPE.



Sec. 832.202-4  Security for Government financing.

    An offeror's financial condition may be considered adequate security 
to protect the Government's interest when the Government provides 
contract financing. In assessing the offeror's financial condition, the 
contracting officer may obtain, to the extent required, the following 
information to establish the offeror's financial capability and to 
determine the offeror's financial condition:
    (a) A current year interim balance sheet and income statement and 
balance sheets and income statements for the two preceding fiscal years. 
The statements should be prepared in accordance with generally accepted 
accounting principles and must be audited and certified by an 
independent public accountant or an appropriate officer of the firm.
    (b) A cash flow forecast for the remainder of the contract term 
showing the planned origin and use of cash within the firm or branch 
performing the contract.
    (c) Information on financing arrangements disclosing the 
availability of cash to finance contract performance, the contractor's 
exposure to financial crisis, and credit arrangements.
    (d) A statement of the status of all State, local, and Federal tax 
accounts, including any special mandatory contributions.
    (e) A description and explanation of the financial effects of any 
leases, deferred purchase arrangements, patent or royalty arrangements, 
insurance, planned capital expenditures, pending claims, contingent 
liabilities, and other financial aspects of the business.
    (f) Any other financial information deemed necessary.
    (g) A Dun and Bradstreet Report on the company.

[[Page 232]]

         Subpart 832.4_Advance Payments for Non-Commercial Items



Sec. 832.402  General.

    Authority to make the determination required by FAR 
32.402(c)(1)(iii) and to approve contract terms, as provided by FAR 
32.402(e)(1), is delegated to the SPE and is further delegated to the 
DSPE. Before award, contracting officers must submit a request for 
approval to use advance payment to the DSPE. The request must include 
the information required by FAR 32.409-1 and must address the standards 
for advance payment in FAR 32.402(c)(2).



Sec. 832.404  Exclusions.

    (a) Under 31 U.S.C. 3324(d)(2), VA allows advance payment for 
subscriptions or other charges for newspapers, magazines, periodicals, 
and other publications for official use, notwithstanding the provisions 
of 31 U.S.C. 3324(a). The term ``other publications'' includes any 
publication printed, microfilmed, photocopied or magnetically or 
otherwise recorded for auditory or visual use.
    (b) Under 31 U.S.C. 1535, VA allows advance payment for services and 
supplies obtained from another Government agency.
    (c) Under 5 U.S.C. 4109, VA allows advance payment for all or any 
part of the necessary expenses for training Government employees in 
Government or non-Government facilities, including the purchase or 
rental of books, materials, and supplies or services directly related to 
the training of a Government employee.

             Subpart 832.5_Progress Payments Based on Costs



Sec. 832.502  Pre-award matters.



Sec. 832.502-2  Contract finance office clearance.

    Contracting officers must obtain approval from the DSPE before 
taking the actions listed in FAR 32.502-2. Full justification and the 
recommendations of the contracting officer must accompany requests for 
approval.

                   Subpart 832.8_Assignment of Claims



Sec. 832.805  Procedure.



Sec. 832.805-70  Distribution/notification of assignment of claims.

    (a) Prior to acknowledgement of receipt, in addition to the 
requirements of FAR 32.805(d), the contracting officer shall obtain 
legal review of the assignment (see 801.602-75(a)(7)). Upon 
acknowledgement of receipt, the contracting officer shall:
    (1) File the retained copy of the notice of assignment and the 
certified copy of the original instrument of assignment with the 
Government Accountability Office copy of the contract; and
    (2) Forward a copy of the notice of assignment and instrument of 
assignment to the local finance office and to the payment office cited 
in the contract.
    (b) Contracting officers must notify field facilities of any 
recognized assignment of payments for contracts under which payment for 
articles and services is certified and approved for payment in the 
field.

                      Subpart 832.9_Prompt Payment



Sec. 832.904  Determining payment due dates.

    (a) When preparing specification packages, contracting officers must 
give full consideration to the time reasonably required for constructive 
acceptance or approval of the goods or services and for making invoice 
payments. Based on this analysis, contracting officers may, when 
authorized by FAR 32.904, modify the number of days allowed for 
notifying contractors of defects in invoices or, for construction 
solicitations, the number of days allowed for payment of invoices 
specified in the applicable prompt payment clause. Changes, if any, 
should be made before issuing the solicitation.
    (b)(1) For construction solicitations, the analysis specified in 
paragraph (a) of this section may routinely take more than the 7 days 
provided in paragraph (a)(2) of the FAR clause at 52.232-27, Prompt 
Payment for Construction

[[Page 233]]

Contracts, to evaluate and return defective progress payment invoices.
    (2) It also may take more than the 14 days provided in paragraph 
(a)(1)(i)(A) of the prompt payment clause to adequately inspect the 
work, determine the adequacy of the contractor's performance, approve, 
and pay progress payment invoices.
    (3) Contracting officers should consider the following and, if 
necessary, revise the number of days stated in paragraphs (a)(2) and 
(a)(1)(i)(A) of the prompt payment clause before issuing construction 
solicitations (see FAR 32.904(d)(1)(i)):
    (i) Recent interest payment history.
    (ii) The complexity of the project.
    (iii) Workload.
    (iv) Work site location.
    (4) In no event may the number of days be set in excess of 14 days 
for return of a defective progress payment invoice or 30 days for 
payment of the invoice.

                Subpart 832.11_Electronic Funds Transfer



Sec. 832.1106  EFT mechanisms.

    (a) The Assistant Secretary for Management may, with the concurrence 
of the Department of the Treasury office responsible for making payment, 
authorize the use of EFT mechanisms other than those authorized under 
FAR 32.1106(a).
    (b) The Assistant Secretary for Management may, with the concurrence 
of the Department of the Treasury office responsible for making payment, 
authorize the use of EFT for payments to be received by or on behalf of 
a contractor outside the United States or Puerto Rico or for contracts 
paid in other than United States currency, as provided in FAR 
32.1106(b).

            Subpart 832.70_Electronic Invoicing Requirements

    Source: 77 FR 70709, Nov. 27, 2012, unless otherwise noted.



Sec. 832.7000  General.

    This subpart prescribes requirements and procedures for submitting 
and processing payment requests in electronic form.



Sec. 832.7001  Definitions.

    As used in this subpart:
    (a) Contract financing payment has the meaning given in FAR 32.001.
    (b) Designated agency office has the meaning given in 5 CFR 
1315.2(m).
    (c) Electronic form means an automated system transmitting 
information electronically according to the accepted electronic data 
transmission methods identified in VAAR 832.7002-1. Facsimile, email, 
and scanned documents are not acceptable electronic forms for submission 
of payment requests.
    (d) Invoice payment has the meaning given in FAR 32.001.
    (e) Payment request means any request for contract financing payment 
or invoice payment submitted by a contractor under a contract.



Sec. 832.7002  Electronic payment requests.

    (a) The contractor shall submit payment requests in electronic form 
unless directed by the contracting officer to submit payment requests by 
mail. Purchases paid with a Government-wide commercial purchase card are 
considered to be an electronic transaction for purposes of this rule, 
and therefore no additional electronic invoice submission is required.
    (b) The contracting officer may direct the contractor to submit 
payment requests by mail, through the United States Postal Service, to 
the designated agency office for:
    (1) Awards made to foreign vendors for work performed outside the 
United States;
    (2) Classified contracts or purchases when electronic submission and 
processing of payment requests could compromise the safeguarding of 
classified or privacy information;
    (3) Contracts awarded by contracting officers in the conduct of 
emergency operations, such as responses to national emergencies;
    (4) Solicitations or contracts in which the designated agency office 
is a VA entity other than the VA Financial Services Center in Austin, 
Texas; or
    (5) Solicitations or contracts in which the VA designated agency 
office

[[Page 234]]

does not have electronic invoicing capability as described above.



Sec. 832.7002-1  Data transmission.

    The contractor shall submit electronic payment requests through:
    (a) VA's Electronic Invoice Presentment and Payment System (See Web 
site at http://www.fsc.va.gov/einvoice.asp.); or,
    (b) A system that conforms to the X12 electronic data interchange 
(EDI) formats established by the Accredited Standards Center (ASC) 
chartered by the American National Standards Institute (ANSI). The X12 
EDI Web site (http://www.x12.org) includes additional information on EDI 
810 and 811 formats.



Sec. 832.7002-2  Contract clause.

    The contracting officer shall insert the clause at 852.232-72, 
Electronic submission of payment requests, in all solicitations and 
contracts.

                PART 833_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 833.1_Protests

Sec.

Sec. 833.102 General.

Sec. 833.103 Protests to VA.

Sec. 833.104 Protests to GAO.

Sec. 833.106 Solicitation provision and contract clause.

                   Subpart 833.2_Disputes and Appeals


Sec. 833.209 Suspected fraudulent claims.

Sec. 833.211 Contracting officer's decision.

Sec. 833.212 Contracting officer's duties upon appeal.

Sec. 833.213 Obligation to continue performance.

Sec. 833.214 Alternative dispute resolution (ADR).

Sec. 833.215 Contract clause.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                         Subpart 833.1_Protests



Sec. 833.102  General.

    Solicitations must instruct interested parties (see FAR provision 
52.233-2) to send a copy of any protest filed with the Government 
Accountability Office (GAO) to the contracting officer and the 
appropriate VA Central Office activity as follows:
    (a) For contracts to be awarded by the Office of Construction and 
Facilities Management: Director, Office of Construction and Facilities 
Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., 
Washington, DC 20420.
    (b) For all other contracts: Deputy Assistant Secretary for 
Acquisition and Materiel Management, Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420.



Sec. 833.103  Protests to VA.

    (a) Filing of protests. (1) An interested party may protest to the 
contracting officer or, as an alternative, may request an independent 
review by filing a protest with the Deputy Assistant Secretary for 
Acquisition and Materiel Management (DAS for A&MM), or for solicitations 
issued by the Director, Office of Construction and Facilities 
Management. A protest filed with the DAS for A&MM or the Director, 
Office of Construction and Facilities Management, will not be considered 
if the interested party has a protest on the same or similar issues 
pending with the contracting officer.
    (2) Protests to the contracting officer must be in writing and 
addressed where the offer/bid is to be submitted.
    (3) Protests requesting an independent review must be in writing and 
addressed to the Deputy Assistant Secretary for Acquisition and Materiel 
Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., 
Washington, DC 20420; or, for solicitations issued by the Office of 
Construction and Facilities Management, to the Director, Office of 
Construction and Facilities Management, Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420.
    (4) The following types of protests may be dismissed by VA without 
consideration of the merits or forwarded to another agency for 
appropriate action:
    (i) Contract administration. Disputes between a contractor and VA 
are resolved under the disputes clause of the contract and the Contract 
Disputes Act of 1978. (41 U.S.C. 601-613).

[[Page 235]]

    (ii) Small business size standards and standard industrial 
classification. Challenges of established size standards or the size 
status of particular firms, and challenges of the selected standard 
industrial classification are for review solely by the Small Business 
Administration (SBA). (15 U.S.C. 637(b)(6); 13 CFR 121.1002).
    (iii) Small business certificate of competency program. A protest 
made under section 8(b)(7) of the Small Business Act, or in regard to 
any issuance of a certificate of competency or refusal to issue a 
certificate under that section, is not reviewed in accordance with bid 
protest procedures unless there is a showing of possible fraud or bad 
faith on the part of Government officials.
    (iv) Protests under section 8(a) of the Small Business Act. The 
decision to place or not to place a procurement under the 8(a) program 
is not subject to review unless there is a showing of possible fraud or 
bad faith on the part of Government officials or that regulations may 
have been violated. (15 U.S.C. 637(a)).
    (v) Affirmative determination of responsibility by the Contracting 
Officer. An affirmative determination of responsibility will not be 
reviewed unless there is a showing that such determination was made 
fraudulently or in bad faith or that definitive responsibility criteria 
in the solicitation were not met.
    (vi) Walsh-Healey Public Contract Act. Challenges of the legal 
status of a firm as a regular dealer or manufacturer within the meaning 
of the Walsh-Healey Act is determined solely by the procuring agency, 
the SBA (if a small business is involved), and the Secretary of Labor. 
(41 U.S.C. 35-45).
    (vii) Subcontractor protests. The contracting agency will not 
consider subcontractor protests except where the subcontract is by or 
for the Government.
    (viii) Judicial proceedings. The contracting agency will not 
consider protests where the matter involved is the subject of litigation 
before a court of competent jurisdiction.
    (b) Alternative dispute resolution. Bidders/offerors and VA 
contracting officers are encouraged to use alternative dispute 
resolution (ADR) procedures to resolve protests at any stage in the 
protest process. If ADR is used, VA will not furnish any documentation 
in an ADR proceeding beyond what is allowed by the FAR.
    (c) Action upon receipt of protest. For protests filed with the 
contracting officer, the HCA will be the approving official for the 
determinations identified in FAR 33.103(f)(1) and (f)(3). If the HCA is 
also the contracting officer, the approving official will be the DAS for 
A&MM. For protests filed with the DAS for A&MM or the Director, Office 
of Construction and Facilities Management, those individuals will be the 
approving officials for the determinations identified in FAR 
33.103(f)(1) and (f)(3).
    (d) Requests for GAO advance decisions. When a written protest has 
been filed with the contracting officer and the contracting officer 
considers it desirable to do so, the contracting officer may request an 
advance decision from the Comptroller General. The contracting officer 
must send the submission to the Comptroller General through the DAS for 
A&MM or the Director, Office of Construction and Facilities Management, 
as appropriate, and must include the material listed in FAR 33.104(a). 
The contracting officer must promptly notify the protesting individual 
or firm in writing of the decision of the Comptroller General.
    (e) Protest after award. When a written protest is filed with the 
contracting officer after contract award, the following requirements 
apply:
    (1) If FAR 33.103(f)(3) requires suspension of contract performance, 
the contracting officer must seek to obtain a mutual agreement with the 
contractor to suspend performance on a no-cost basis. If unsuccessful, 
the contracting officer must issue a stop-work order in accordance with 
contract clause FAR 52.233-3, Protest after Award.
    (2) If suspension of contract performance is not required by FAR 
33.103(f)(3) and if the contracting officer determines that the award 
was proper, the contracting officer must furnish the protester a written 
explanation of the basis for the award that is responsive to the 
allegations of the protest. The contracting officer will advise the 
protester that the protester may appeal the determination to one of the 
following:

[[Page 236]]

    (i) The DAS for A&MM.
    (ii) The Director, Office of Construction and Facilities Management, 
in the case of a contract awarded by the Office of Construction and 
Facilities Management.
    (iii) The Comptroller General.
    (3) If suspension of contract performance is not required by FAR 
33.103(f)(3) but the contracting officer determines that the award is 
questionable, the contracting officer, after consulting with OGC, will 
advise the contractor of the protest and invite the contractor to submit 
comments and relevant information. The contracting officer must submit 
the case promptly to the DAS for A&MM for advice. The DAS for A&MM may 
consult with OGC and will either advise the contracting officer of the 
appropriate action to take, or submit the case to the Comptroller 
General, through the Assistant Secretary for Management, for a decision. 
The contracting officer will provide interested parties with a copy of 
the final decision.
    (f) Agency appellate review of the contracting officer's protest 
decision. An interested party may request an independent review of a 
contracting officer's protest decision by filing an appeal with the DAS 
for A&MM or, for solicitations issued by the Office of Construction and 
Facilities Management, with the Director, Office of Construction and 
Facilities Management. To be considered timely, the appeal must be 
received by the appropriate official named in this paragraph within 10 
calendar days of the date the interested party knew, or should have 
known, whichever is earlier, of the basis for the appeal. Appeals must 
be addressed as provided in paragraph (a)(3) of this section. Appeals do 
not extend GAO's timeliness requirements for appeals to GAO. By filing 
an appeal as provided in this paragraph, an interested party may waive 
its rights to further appeal to the Comptroller General at a later date. 
Agency responses to appeals submitted to the agency shall be reviewed 
and concurred in by OGC (025).



Sec. 833.104  Protests to GAO.

    (a) General procedures. (1) Procedures for protests to GAO are at 4 
CFR Part 21 (GAO Bid Protest Regulations). If guidance concerning GAO 
procedure in this section differs from 4 CFR Part 21, 4 CFR Part 21 
applies.
    (2) When a protest before or after award has been filed with GAO, 
the contracting officer must submit a report to the DAS for A&MM, or the 
Director, Office Construction and Facilities Management, as appropriate, 
within 5 workdays after receipt of verbal or written notice of the 
protest, whichever occurs first. The report must include a copy of the 
documentation indicated in FAR 33.104(a)(3).
    (3) Contracting officers are responsible for the notification 
procedures outlined in FAR 33.104(a)(4).
    (b) Protests before award. When VA receives notice from GAO of a 
pre-award protest filed directly with GAO, award will normally not be 
made until the matter is resolved. However, award may be made despite 
the protest if the DAS for A&MM, or the Director, Office of Construction 
and Facilities Management, as appropriate, approves the findings of the 
HCA required by FAR 33.104(b)(1) and GAO has been notified as provided 
by FAR 33.104(b)(2). The Director, Acquisition Resources Service, or the 
Director, Office of Construction and Facilities Management, as 
appropriate, is responsible for notifying GAO.
    (c) Protests after award. When, after award of a contract, VA 
receives notice from GAO of a protest filed directly with GAO, the 
contracting officer must, if required to do so by FAR 33.104(c)(1), 
immediately suspend performance. However, contract performance need not 
be suspended, despite the protest, if the SPE approves the HCA's 
findings required by FAR 33.104(c)(2) and GAO has been notified under 
FAR 33.104(c)(3). Authority to approve the HCA's findings is further 
delegated to the DSPE and, for solicitations issued by the Officer of 
Construction and Facilities Management, the Director, Office of 
Construction and Facilities Management. The Director, Acquisition 
Resources Service, or the Director, Office of Construction and 
Facilities Management, as appropriate, is responsible for notifying GAO.

[[Page 237]]



Sec. 833.106  Solicitation provisions.

    (a) The contracting officer shall insert the provision at 852.233-
70, Protest content/alternative dispute resolution, in each solicitation 
expected to exceed the simplified acquisition threshold.
    (b) The contracting officer shall insert the provision at 852.233-
71, Alternative protest procedure, in solicitations expected to exceed 
the simplified acquisition threshold.

                   Subpart 833.2_Disputes and Appeals



Sec. 833.209  Suspected fraudulent claims.

    The contracting officer must refer matters relating to suspected 
fraudulent claims to the Office of Inspector General for investigation 
and referral to the Department of Justice. The contracting officer may 
not initiate any collection, recovery, or other settlement action while 
the matter is in the hands of the Department of Justice without first 
obtaining the concurrence of the U.S. Attorney concerned, through the 
Office of the Inspector General.



Sec. 833.211  Contracting officer's decision.

    (a) When a dispute cannot be settled by agreement and a final 
decision under the Disputes clause of the contract is necessary, the 
contracting officer must furnish the contractor the contracting 
officer's final decision in the matter.
    (b) The contracting officer must identify the decision, in writing, 
as a final decision and include a statement of facts in sufficient 
detail to enable the contractor to fully understand the decision and the 
basis on which it was made. The decision must set forth those facts 
relevant to the dispute with which the contractor and the contracting 
officer are in agreement, and as clearly as possible, the area of 
disagreement.
    (c) For VA contracts, the Board of Contract Appeals noted in FAR 
33.211 is the Civilian Board of Contract Appeals (CBCA), 1800 F Street, 
NW., Washington, DC 20405.



Sec. 833.212  Contracting officer's duties upon appeal.

    (a) When a contracting officer receives notice of appeal in any 
form, the contracting officer must do the following:
    (1) Annotate the appeal with the date of mailing (or date of 
receipt, if otherwise conveyed).
    (2) Within 10 days, forward the original notice of appeal and a copy 
of the contracting officer's final decision letter to the OGC.
    (3) Concurrently transmit copies of the notice of appeal and the 
final decision letter to the DAS for A&MM. (In cases of construction 
contracts administered by the Office of Construction and Facilities 
Management, copies of the appeal and the final decision letter need not 
be transmitted to the DAS for A&MM but instead should be sent to the 
Director, Office of Construction and Facilities Management.)
    (b) Within 20 days of receipt of an appeal, or advice that an appeal 
has been filed, the contracting officer must assemble and transmit to 
the OGC, an appeal file consisting of all documents pertinent to the 
appeal, including all of the following:
    (1) The decision and findings of fact that are being appealed.
    (2) The contract, including specifications and pertinent amendments, 
plans and drawings.
    (3) All correspondence between the parties pertinent to the appeal, 
including the letter or letters of claim in response to which the 
decision was issued.
    (4) Transcripts of any testimony taken during the course of 
proceedings and affidavits or statements of any witnesses on the matter 
in dispute made prior to the filing of the notice of appeal.
    (5) Any additional information considered pertinent.



Sec. 833.213  Obligation to continue performance.

    (a) As provided in FAR 33.213, contracting officers shall use FAR 
clause 52.233-1, Disputes, with its Alternate I. Clause 52.233-1 
requires the contractor to continue performance in accordance with the 
contracting officer's decision in the event of a claim arising under a

[[Page 238]]

contract. Alternate I expands this authority, adding a requirement for 
the contractor to continue performance in the event of a claim relating 
to the contract.
    (b) In the event of a dispute not arising under, but relating to, 
the contract, if the contracting officer directs continued performance, 
the contracting officer may consider providing financing for the 
continued performance, provided that the Government's interests are 
properly secured. The contracting officer will contact the DAS for A&MM 
and OGC for advice prior to authorizing such financing.



Sec. 833.214  Alternative dispute resolution (ADR).

    Contracting officers and contractors are encouraged to use 
alternative dispute resolution (ADR) procedures. CBCA guidance on ADR 
may be obtained at http://www.cbca.gsa.gov.



Sec. 833.215  Contract clause.

    The contracting officer must use the clause at 52.233-1, Disputes, 
with its Alternate I (see 833.213).

[[Page 239]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

         PART 836_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

      Subpart 836.2_Special Aspects of Contracting for Construction

Sec.

Sec. 836.202 Specifications.

Sec. 836.203 Government estimate of construction costs.

Sec. 836.204 Disclosure of the magnitude of construction projects.

Sec. 836.206 Liquidated damages.

Sec. 836.209 Construction contracts with architect-engineer firms.

Sec. 836.213 Special procedures for sealed bidding in construction 
          contracting.

Sec. 836.213-4 Notice of award.

Sec. 836.213-70 Notice to proceed.

                     Subpart 836.5_Contract Clauses


Sec. 836.500 Scope of subpart.

Sec. 836.501 Performance of work by the contractor.

Sec. 836.513 Accident prevention.

Sec. 836.521 Specifications and drawings for construction.

Sec. 836.570 Correspondence.

Sec. 836.571 Reference to ``standards.''

Sec. 836.572 Government supervision.

Sec. 836.573 Daily report of workers and materials.

Sec. 836.574 Subcontracts and work coordination.

Sec. 836.575 Schedule of work progress.

Sec. 836.576 Supplementary labor standards provisions.

Sec. 836.577 Worker's compensation.

Sec. 836.578 Changes--supplement.

Sec. 836.579 Special notes.

                Subpart 836.6_Architect-Engineer Services


Sec. 836.602 Selection of firms for architect-engineer contracts.

Sec. 836.602-1 Selection criteria.

Sec. 836.602-2 Evaluation boards.

Sec. 836.602-4 Selection authority.

Sec. 836.602-5 Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

Sec. 836.603 Collecting data on and appraising firms qualifications.

Sec. 836.606 Negotiations.

Sec. 836.606-70 General.

Sec. 836.606-71 Architect-engineer's proposal.

Sec. 836.606-72 Contract price.

Sec. 836.606-73 Application of 6 percent architect-engineer fee 
          limitation.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

      Subpart 836.2_Special Aspects of Contracting for Construction



Sec. 836.202  Specifications.

    (a) The procedures described in part 811 are applicable to 
construction specifications.
    (b) During the design stage, contract architect-engineers must not 
use ``brand name or equal'' or other restrictive specifications without 
the prior written approval of the contracting officer. The contracting 
officer must inform prospective architect-engineers of this requirement 
during the negotiation phase, prior to award of a contract for design.
    (c) If VA has determined that only one product will meet the 
Government's minimum needs and VA will not allow the submission of 
``equal'' products, the contracting officer must include the clause 
found at 852.236-90, Restriction on Submission and Use of Equal 
Products, in the solicitation and complete the clause by listing the 
items to which the clause applies. This clause places bidders on notice 
that the ``brand name or equal'' provisions of the clause found at FAR 
52.236-5, Materials and Workmanship, and any other provision that may 
authorize the submission of an ``equal'' product, will not apply to the 
specific items listed.



Sec. 836.203  Government estimate of construction costs.

    The overall amount of the Government estimate must not be disclosed 
until after award of the contract. After award, the contracting officer 
may disclose the overall amount upon request.



Sec. 836.204  Disclosure of the magnitude of construction projects.

    In lieu of the estimated price ranges described in FAR 36.204, the 
contracting officer must identify the magnitude of a VA project in 
advance notices and solicitations in terms of one of the following price 
ranges:
    (a) Less than $25,000.
    (b) Between $25,000 and $100,000.

[[Page 240]]

    (c) Between $100,000 and $250,000.
    (d) Between $250,000 and $500,000.
    (e) Between $500,000 and $1,000,000.
    (f) Between $1,000,000 and $2,000,000.
    (g) Between $2,000,000 and $5,000,000.
    (h) Between $5,000,000 and $10,000,000.
    (i) Between $10,000,000 and $20,000,000.
    (j) Between $20,000,000 and $50,000,000.
    (k) Between $50,000,000 and $100,000,000.
    (l) More than $100,000,000.



Sec. 836.206  Liquidated damages.

    The contracting officer may include a liquidated damages provision 
in a construction contract when the criteria of FAR 11.501 and 811.501 
are met. If partial performance may be accepted and used to the 
advantage of the Government, the contracting officer must include the 
clause substantially as set forth in 852.211-74, Liquidated Damages, in 
addition to the clause set forth in FAR 52.211-12.



Sec. 836.209  Construction contracts with architect-engineer firms.

    (a) When the contracting officer considers it necessary or 
advantageous to award a contract for construction of a design-bid-build 
project, as defined at FAR 36.102, to a firm or person that designed the 
project, the contracting officer must request prior approval from one of 
the following:
    (1) The facility or VISN director, as appropriate, or, for National 
Cemetery Administration contracts, the Director, Technical Support 
Service, for contracts involving nonrecurring maintenance (NRM) funds.
    (2) The Director, Office of Construction and Facilities Management, 
for contracts involving construction funds.
    (b) The contracting officer must furnish complete justification in 
the request.
    (c) This section does not apply to design-build contracts, as 
defined at FAR 36.102.



Sec. 836.213  Special procedures for sealed bidding in construction 
          contracting.



Sec. 836.213-4  Notice of award.

    The contracting officer must provide to the contractor a notice of 
award (letter of acceptance) for any contract award in excess of 
$25,000.



Sec. 836.213-70  Notice to proceed.

    (a) The contracting officer must provide construction contractors 
with a written notice to proceed for the work. A notice to proceed will 
normally be sent only after the contractor has provided performance and 
payment bonds or payment protection and the completed contract forms, 
where applicable, and the contracting officer has accepted them. If the 
urgency of the work or other proper reason requires the contractor to 
begin work immediately, the contracting officer may include in the award 
letter a notice to proceed, with the reservation that payments are 
contingent upon receipt and approval of the required bonds or payment 
protection.
    (b) If the contract provides for liquidated damages, the contracting 
officer must send the notice to proceed by certified mail, return 
receipt requested, or any other method that provides signed evidence of 
receipt. The notice to proceed will advise the contractor that the work 
must be completed within ---- (insert contract time for completion) 
calendar days from the date of receipt shown on the certified mail 
receipt card returned by the post office or on the proof of delivery 
provided by the delivery service.
    (c) If the contract does not provide for liquidated damages, 
certified mail is not required. In notices to proceed for these 
contracts, the contracting officer must establish a date for completion 
that takes into consideration the time required for the notice to arrive 
by regular mail.
    (d) At the time the notice to proceed is sent to the contractor, the 
contracting officer must furnish a copy to the resident engineer or the 
Chief, Engineering Service.
    (e) The contracting officer must file a copy of the notice to 
proceed with copy A of the contract. When certified mail or other method 
of certified delivery is used, the contracting officer must attach the 
certified mail receipt card returned by the post office or the proof of 
delivery provided by the delivery service to the copy of the notice to 
proceed. The contracting officer must file copies of the notice to 
proceed with copies C and D of the contract after the

[[Page 241]]

date of receipt has been established and indicated on the notice to 
proceed.

                     Subpart 836.5_Contract Clauses



Sec. 836.500  Scope of subpart.

    (a) The clauses and provisions prescribed in this subpart are set 
forth for use in fixed-price construction contracts in addition to those 
in FAR Subpart 52.2.
    (b) Additional clauses and provisions not inconsistent with those in 
FAR subparts 36.5 and 52.2 and those prescribed in this subpart are 
authorized when determined necessary or desirable by the contracting 
officer, and when approved as provided in subpart 801.4.
    (c) Clauses and provisions that differ from those contained in FAR 
subparts 36.5 and 52.2 and this subpart, but considered essential to the 
procurement of VA requirements, shall not be used unless the deviation 
procedure set forth in subpart 801.4 has been complied with.



Sec. 836.501  Performance of work by the contractor.

    The contracting officer shall insert the clause at 852.236-72, 
Performance of work by the contractor, in solicitations and contracts 
for construction that contain the FAR clause at 52.236-1, Performance of 
Work by the Contractor. When the solicitations or contracts include a 
section entitled ``Network Analysis System (NAS),'' the contracting 
officer must use the clause with its Alternate I.



Sec. 836.513  Accident prevention.

    The contracting officer must insert the clause at 852.236-87, 
Accident Prevention, in solicitations and contracts for construction 
that contain the clause at FAR 52.236-13, Accident Prevention.



Sec. 836.521  Specifications and drawings for construction.

    The contracting officer shall insert the clause at 852.236-71, 
Specifications and drawings for construction, in solicitations and 
contracts for construction that include the FAR clause at 52.236-21, 
Specifications and Drawings for Construction.



Sec. 836.570  Correspondence.

    The contracting officer shall insert the clause at 852.236-76, 
Correspondence, in solicitations and contracts for construction expected 
to exceed the micro-purchase threshold for construction (currently 
$2,000).



Sec. 836.571  Reference to ``standards.''

    The contracting officer shall insert the clause at 852.236-77, 
Reference to ``standards,'' in solicitations and contracts for 
construction expected to exceed the micro-purchase threshold for 
construction.



Sec. 836.572  Government supervision.

    The contracting officer shall insert the clause at 852.236-78, 
Government supervision, in solicitations and contracts for construction 
expected to exceed the micro-purchase threshold for construction.



Sec. 836.573  Daily report of workers and materials.

    The contracting officer shall insert the clause at 852.236-79, Daily 
report of workers and materials, in solicitations and contracts for 
construction expected to exceed the simplified acquisition threshold. 
The contracting officer may, when in the best interest of the 
Government, insert the clause in solicitations and contracts for 
construction when the contract amount is expected to be at or below the 
simplified acquisition threshold.



Sec. 836.574  Subcontracts and work coordination.

    The contracting officer shall insert the clause at 852.236-80, 
Subcontracts and work coordination, in solicitations and contracts for 
construction expected to exceed the micro-purchase threshold for 
construction. When the solicitations or contracts are for new 
construction work with complex mechanical-electrical work, the 
contracting officer may use the clause with its Alternate I.



Sec. 836.575  Schedule of work progress.

    The contracting officer shall insert the clause at 852.236-84, 
Schedule of

[[Page 242]]

work progress, in solicitations and contracts for construction that are 
expected to exceed the micro-purchase threshold for construction and 
that do not contain a section entitled ``Network Analysis System 
(NAS).''



Sec. 836.576  Supplementary labor standards provisions.

    The contracting officer shall insert the clause at 852.236-85, 
Supplementary labor standards provisions, in solicitations and contracts 
for construction that are expected to exceed the micro-purchase 
threshold for construction.



Sec. 836.577  Workers' compensation.

    The contracting officer shall insert the clause at 852.236-86, 
Workers' compensation, in solicitations and contracts for construction 
that are expected to exceed the micro-purchase threshold for 
construction.



Sec. 836.578  Changes--supplement.

    (a) The contracting officer shall insert the clause at 852.236-88, 
Contract changes--supplement, in solicitations and contracts for 
construction that are expected to exceed the micro-purchase threshold 
for construction. (This section has been promulgated as a deviation from 
the FAR as provided in 801.4.)
    (b) When negotiated changes exceed $500,000, paragraph (a) of the 
clause at 852.236-88 will apply. Because paragraph (a) does not provide 
ceiling rates for indirect expenses, the contractor must furnish cost 
breakdowns and other supporting data on its rates for indirect expenses 
as part of its price proposal. The contracting officer must negotiate 
the rates for indirect expenses with the contractor and may request an 
audit in accordance with FAR 15.404-2.
    (c) When the negotiated change will be $500,000 or less, paragraph 
(b) of the clause at 852.236-88 will apply. Because the indirect cost 
rates in paragraph (b) of the clause at 852.236-88 are ceiling rates, 
the contracting officer must negotiate indirect expense rates within the 
ceiling limitations.



Sec. 836.579  Special notes.

    The contracting officer shall insert the clause at 852.236-91, 
Special notes, in solicitations and contracts for construction that are 
expected to exceed the micro-purchase threshold for construction.

                Subpart 836.6_Architect-Engineer Services



Sec. 836.602  Selection of firms for architect-engineer contracts.



Sec. 836.602-1  Selection criteria.

    (a) In addition to the evaluation criteria set forth in FAR 36.602-
1, the evaluation board must consider the factors set forth in paragraph 
(b) of this section as they apply to the project or purpose of the 
selection. Values must be assigned to each factor in determining the 
relative qualifications of the firms identified as qualified through the 
pre-selection process. The board may adjust the assigned values after 
its discussions.
    (b) The following factors must be considered:
    (1) Reputation and standing of the firm and its principal officials 
with respect to professional performance, general management, and 
cooperativeness.
    (2) Record of significant claims against the firm because of 
improper or incomplete architectural and engineering services.
    (3) Specific experience and qualifications of personnel proposed for 
assignment to the project and their record of working together as a 
team.



Sec. 836.602-2  Evaluation boards.

    (a) The Director, Office of Construction and Facilities Management, 
shall appoint an evaluation board to select architect-engineer 
contractors for Office of Construction and Facilities Management 
projects. The Director, Office of Construction and Facilities 
Management, shall appoint an evaluation board to select architect-
engineer contractors for National Cemetery Administration projects. The 
facility or VISN director, as appropriate, shall appoint an evaluation 
board to select architect-engineer contractors for field facility 
projects.
    (b) The Director, A/E Evaluation and Program Support Service, will 
chair the evaluation board for Office of Construction and Facilities 
Management

[[Page 243]]

architect-engineer contracts. The Chair may designate the Project 
Director or Project Manager to act as Chair when necessary. When 
appointing the board's members, the Director, Office of Construction and 
Facilities Management, must include the appropriate Project Manager and 
as many qualified professional architects or engineers from the Office 
of Construction and Facilities Management technical services as may be 
considered appropriate for the particular project. The Director, Office 
of Construction and Facilities Management may designate additional 
members from the Office of Construction and Facilities Management or 
from other Department administrations and staff offices when 
appropriate.
    (c) The Director, Office of Construction and Facilities Management, 
shall ensure that the board consists of no fewer than three members, one 
of whom must be a National Cemetery Administration senior level 
contracting officer. The Director shall designate one of the board 
members as the Chair.
    (d) The evaluation board for a VA field facility must consist of no 
fewer than two members, one of whom will be the HCA (or the senior 
contracting officer at the facility if there is no HCA on site) and the 
other will be the Chief, Engineering Service, or their alternates. Where 
a facility has two or more engineers on its staff, the facility or VISN 
director must appoint an additional engineer to the board. The Chair of 
the board will be the senior engineer.



Sec. 836.602-4  Selection authority.

    The Director, Office of Construction and Facilities Management (for 
Central Office contracts), the Director, Office of Construction 
Management (for National Cemetery Administration contracts), and the 
facility or VISN director (for field facility contracts), as 
appropriate, or persons acting in those capacities, are designated as 
the approving officials for the recommendations of the respective 
evaluation boards.



Sec. 836.602-5  Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

    Either of the procedures provided in FAR 36.602-5 may be used to 
select firms for architect-engineer contracts that are not expected to 
exceed the simplified acquisition threshold.



Sec. 836.603  Collecting data on and appraising firms qualifications.

    The Director, Office of Construction and Facilities Management, for 
Central Office; the Director, Office of Construction Management, for 
National Cemetery Administration; and the Chief, Engineering Service, 
for field facilities, are responsible for collecting Standard Forms 330 
and maintaining a data file on architect-engineer qualifications.



Sec. 836.606  Negotiations.



Sec. 836.606-70  General.

    To assure that the fee limitation is not violated, the contracting 
officer must maintain suitable records to be able to isolate the amount 
in the total fee to which the 6-percent limitation applies.



Sec. 836.606-71  Architect-engineer's proposal.

    (a) When the contract price is estimated to be $50,000 or more, the 
contracting officer must use VA Form 10-6298, Architect-Engineer Fee 
Proposal, to obtain the proposal and supporting cost data from the 
proposed contractor and subcontractor in the negotiation of an 
architect-engineer contract for design services.
    (b) In obtaining architect-engineer services for research study, 
seismic study, master planning study, construction management and other 
related services contracts, the contracting officer must use VA Form 10-
6298 supplemented or modified as needed for the particular project type.



Sec. 836.606-72  Contract price.

    (a) Where negotiations with the top-rated firm are unsuccessful, the 
contracting officer shall, after authorization by the Director, Office 
of Construction and Facilities Management, the Director, Office of 
Construction Management, or the facility or VISN

[[Page 244]]

director, as appropriate, terminate the negotiations and undertake 
negotiations with the firm next in order of preference.
    (b) The contracting officer shall submit a recommendation for award 
of the contract at the negotiated fee to the Director, Office of 
Construction and Facilities Management, the Director, Office of 
Construction Management, or the facility or VISN director, as 
appropriate. A copy of the negotiation memorandum prepared in accordance 
with FAR 15.406-3 and, whenever a field pricing report has been 
received, a copy of the report must accompany the recommendation.



Sec. 836.606-73  Application of 6 percent architect-engineer fee 
          limitation.

    (a) The total cost of the architect or engineer services contracted 
for must not exceed 6 percent of the estimated cost of the construction 
project plus any fees for related services and activities such as those 
shown in paragraph (c) of this section.
    (b) To support project submissions, the engineering officer or 
project engineer must use VA Form 10-1193, Application for Health Care 
Facility Project, and Form 10-6238, EMIS Construction Program Estimate 
Worksheet, and must show the proposed technical services where necessary 
and applicable.
    (c) The 6 percent fee limitation does not apply to the following 
architect or engineer services:
    (1) Investigative services including but not limited to:
    (i) Determination of program requirements, including schematic or 
preliminary plans and estimates;
    (ii) Determination of feasibility of proposed project;
    (iii) Preparation of measured drawings of existing facility;
    (iv) Subsurface investigation;
    (v) Structural, electrical, and mechanical investigation of existing 
facility; and
    (vi) Surveys: topographic, boundary, utilities, etc.
    (2) Special consultant services that are not normally available in 
organizations of architects or engineers and that are not specifically 
applied to the actual preparation of working drawings or specifications 
of the project for which the service are required.
    (3) Other:
    (i) Reproduction of approved designs through models, color 
renderings, photographs, or other presentation media;
    (ii) Travel and per diem allowances other than those required for 
the development and review of working drawings and specifications;
    (iii) Supervision or inspection of construction, review of shop 
drawings or samples, and other services performed during the 
construction phase; and
    (iv) All other services that are not an integral part of the 
production and delivery of plans, designs, and specifications.
    (4) The cost of reproducing drawings and specifications for bidding 
and their distribution to prospective bidders and plan file rooms.

                      PART 837_SERVICE CONTRACTING

                 Subpart 837.1_Service Contracts_General

Sec.

Sec. 837.103 Contracting officer responsibility.

Sec. 837.110 Solicitation provisions and contract clauses.

Sec. 837.110-70 Services provided to eligible beneficiaries.

             Subpart 837.2_Advisory and Assistance Services


Sec. 837.203 Policy.

             Subpart 837.4_Nonpersonal Health Care Services


Sec. 837.403 Contract clause.

                    Subpart 837.70_Mortuary Services


Sec. 837.7001 General.

Sec. 837.7002 List of qualified funeral directors.

Sec. 837.7003 Funeral authorization.

Sec. 837.7004 Administrative necessity.

Sec. 837.7005 Unclaimed remains--all other cases.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

[[Page 245]]

                 Subpart 837.1_Service Contracts_General



Sec. 837.103  Contracting officer responsibility.

    When the contracting officer determines that legal assistance is 
necessary in determining whether a proposed service contract is for 
personal or non-personal services, the contracting officer will request 
a legal opinion from the appropriate Regional Counsel.



Sec. 837.110  Solicitation provisions and contract clauses.

    The contracting officer shall insert the clause at 852.237-70 
Contractor responsibilities, in solicitations and contracts for 
services.



Sec. 837.110-70  Services provided to eligible beneficiaries.

    Contracting officers shall include the clause at 852.271-70, 
Nondiscrimination in services provided to beneficiaries, in all 
solicitations and contracts covering services provided to eligible 
beneficiaries.

             Subpart 837.2_Advisory and Assistance Services



Sec. 837.203  Policy.

    The definition of advisory and assistance services includes, in 
addition to examples listed in FAR 37.203, services to obtain peer 
review of research proposals.

             Subpart 837.4_Nonpersonal Health Care Services



Sec. 837.403  Contract clause.

    The contracting officer shall insert the clause at 852.237-7, 
Indemnification and medical liability insurance, in lieu of FAR Clause 
52.237-7, in solicitations and contracts for nonpersonal health-care 
services, including contracts awarded under the authority of 38 U.S.C. 
7409, 38 U.S.C. 8151-8153, and part 873. The contracting officer may 
include the clause in bilateral purchase orders for nonpersonal health-
care services awarded under the procedures in FAR part 13 and part 813.

                    Subpart 837.70_Mortuary Services



Sec. 837.7001  General.

    This subpart establishes the policies and procedures governing the 
procurement of funeral and burial services for deceased beneficiaries of 
VA, as provided in 38 U.S.C. 2302, 2303, and 2308.



Sec. 837.7002  List of qualified funeral directors.

    Contracting officers will establish, in coordination with cognizant 
Chief, Medical Administration Service (MAS) personnel or other personnel 
designated by the facility director to perform these functions, a list 
of funeral directors capable of performing the burial services specified 
in 837.7003. The contracting officer will attempt to establish a 
commitment to perform these services within the statutory limitation of 
$300 (see 38 U.S.C. 2302). Each funeral director must be fully licensed 
in the jurisdiction in which the business operates. If there has been no 
prior experience with the funeral director that would ensure the 
adequacy of the funeral director's services and casket, arrangements 
will be made before contract negotiation to inspect the premises and the 
casket to be provided, as well as to check with the local business 
bureau and/or Chamber of Commerce. (38 U.S.C. 2302)



Sec. 837.7003  Funeral authorization.

    (a) When a veteran dies while receiving care in a VA health care 
facility or in a non-VA institution at VA's expense, and the decedent's 
remains are unclaimed, the Chief, MAS, or the person designated by the 
facility director to perform these functions, will forward to the HCA a 
properly executed VA form 10-2065, Funeral Arrangements, requesting that 
funeral and burial services for the deceased be procured.
    (b) The contracting officer will enter into negotiations with local 
funeral directors to procure a complete funeral and burial service 
within the statutory allowance of $300. The purchase order must list the 
specific services to be provided. The services must consist of the 
following:
    (1) Preparation of the body, embalming.

[[Page 246]]

    (2) Clothing.
    (3) Casket. (The casket, at a minimum, must be constructed from 
thick, strong particle board and must be of sufficient strength to 
support the weight of an adult human body. Cardboard or press paper or 
similar materials are not acceptable.)
    (4) The securing of all necessary permits.
    (5) Ensuring that a United States flag (provided the funeral 
director in accordance with M-1, Part I, paragraph 14.40) accompanies 
the casket to the place of burial.
    (c) An additional allowance for transportation of the body to the 
place of burial is provided in 38 U.S.C. 2308. This allowance will cover 
the transportation cost of shipment of the body by common carrier or by 
hearse from the VA facility to the funeral home and to the place of 
burial, any charges for an outside shipping box, and the charges for 
securing all necessary permits for removal or shipment of the body. 
These costs are not chargeable against the $300 allowance.
    (d) In accordance with M-1, Part I, paragraph 14.37, the contracting 
officer will designate the Chief, MAS, or the person designated by the 
facility director to perform these functions, to be responsible for the 
medical inspection of the mortuary services performed and inspection of 
the merchandise furnished. This designee will also be responsible for 
certifying receipt on the receiving report.
    (e) The HCA will assist the Chief, MAS, or the person designated by 
the facility director to perform these functions, in developing the 
local procedures specified in M-1, Part I, paragraph 14.37c. (38 U.S.C. 
2302, 2303, and 2308)



Sec. 837.7004  Administrative necessity.

    (a) VA may make arrangements and assume expenses for local burial 
under separate contractual agreement when:
    (1) A person dies under VA care who is not legally entitled to such 
care at VA's expense;
    (2) No relatives or friends claim the remains; and
    (3) The municipal, county, or State officials refuse to provide for 
final disposition.
    (b) When the contracting officer cannot obtain a full and complete 
funeral and burial service as prescribed in 837.7003 within the 
statutory allowance, before taking any further action, the contracting 
officer will secure from the facility or VISN director, as appropriate, 
a written determination that VA must accomplish the disposition of the 
remains as an administrative necessity. The facility director will also 
authorize in writing the expenditure of such additional funds as may be 
necessary for this purpose.
    (c) The contracting officer will make the facility director's 
determination and authorization a part of the contract file. (38 U.S.C. 
2302)



Sec. 837.7005  Unclaimed remains--all other cases.

    Requests for information on the disposition of the unclaimed remains 
of a veteran whose death occurs while not under the direct care or 
treatment of VA will be referred to the Veterans Services Officer for 
processing in accordance with M27-1, Part II.

        PART 839_ACQUISITION OF INFORMATION TECHNOLOGY [RESERVED]

                PART 841_ACQUISITION OF UTILITY SERVICES

                          Subpart 841.1_General

Sec.

Sec. 841.100 Scope of part.

Sec. 841.103 Statutory and delegated authority.

                Subpart 841.2_Acquiring Utility Services


Sec. 841.201 Policy.

    Authority: 40 U.S.C. 121(c) and (d); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                          Subpart 841.1_General



Sec. 841.100  Scope of part.

    This part prescribes procedures for obtaining delegations of 
authority to award contracts for utility connection charges and provides 
guidance on review requirements for such proposed contracts.

[[Page 247]]



Sec. 841.103  Statutory and delegated authority.

    (a) The Assistant Commissioner for Procurement, General Services 
Administration (GSA), has delegated the Secretary of Veterans Affairs 
authority to enter into public utility contracts for connection charges 
for utility services.
    (b) Except as provided in paragraph (a) of this section, the 
authority to award all other contracts for utility services, as defined 
in FAR 41.101, is vested in GSA (see FAR 41.103). VA contracting 
officers who wish to award local contracts for utility services, other 
than for connection charges, must first obtain a delegation of authority 
to award such contracts from GSA. Contracting officers shall submit 
requests for delegation of authority directly to GSA.
    (c) Any authority described in paragraphs (a) or (b) of this section 
delegated to the Secretary is further delegated to the SPE and is 
further delegated to the DSPE and to VA contracting officers within the 
limits of their warrants.

                Subpart 841.2_Acquiring Utility Services



Sec. 841.201  Policy.

    As required by 801.602-71, contracting officers must submit 
solicitations and proposed agreements for utility services exceeding 
$50,000 in total costs to the appropriate Acquisition Resources Service 
office for technical and legal review.

[[Page 248]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

           PART 842_CONTRACT ADMINISTRATION AND AUDIT SERVICES

Sec.

Sec. 842.000 Scope of part.

Sec. 842.070 Definitions.

                  Subpart 842.1_Contract Audit Services


Sec. 842.101 Contract audit responsibilities.

Sec. 842.102 Assignment of contract audit services.

                    Subpart 842.7_Indirect Cost Rates


Sec. 842.705 Final indirect cost rates.

                   Subpart 842.8_Disallowance of Costs


Sec. 842.801 Notice of intent to disallow costs.

Sec. 842.801-70 Audit assistance prior to disallowing costs.

Sec. 842.803 Disallowing costs after incurrence.

          Subpart 842.12_Novation and Change-of-Name Agreements


Sec. 842.1203 Processing agreements.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.



Sec. 842.000  Scope of part.

    This part applies to all contracts, whether awarded through sealed 
bidding or negotiation.



Sec. 842.070  Definitions.

    Contract administration is the coordination of actions required for 
the performance of a contract. This includes the contracting officer's 
guidance and supervision necessary to assure that the contractor 
fulfills all contractual obligations.

                  Subpart 842.1_Contract Audit Services



Sec. 842.101  Contract audit responsibilities.

    (a) Contracting officers may use the support services of other 
agencies to the extent feasible. Examples of such services include: pre-
award surveys; quality assurance and technical inspection of contract 
items; and review of contractors' procurement systems. Contracting 
officers obtaining support services from any other Government department 
or agency must do so on the basis of an approved negotiated interagency 
support agreement.
    (b) An interagency support agreement is a written instrument of 
understanding between the parties to the agreement. The agreement should 
clearly state the following:
    (1) The accord reached between the two parties involved, especially 
the obligations assumed and the rights granted each party.
    (2) The resources that both the supplying and receiving parties will 
provide.
    (3) The funding and reimbursement arrangements.
    (4) Clauses permitting revisions, modifications, or cancellation of 
the agreement.



Sec. 842.102  Assignment of contract audit services.

    (a) When required, contracting officers shall request the assistance 
of the VA Office of the Inspector General (OIG), Office of Contract 
Review, to provide pre- and post-award audit, review, and advisory 
services associated with the award or modification of:
    (1) Federal Supply Schedule and other contracts awarded by the VA 
National Acquisition Center;
    (2) Scarce medical specialist or sharing contracts awarded under the 
authority of 38 U.S.C. 7409 or 8153, and;
    (3) Claims involving such contracts.
    (b) Contracting officers may request the assistance of either the VA 
OIG Office of Contract Review or the Defense Contract Audit Agency 
(DCAA) to provide pre- and post-award audit, review, and advisory 
services associated with other types of contracts or claims.

                    Subpart 842.7_Indirect Cost Rates



Sec. 842.705  Final indirect cost rates.

    (a) Except when the quick-closeout procedures described in FAR 
42.708 are used, contracting officers must request audits on proposed 
final indirect cost rates and billing rates for use in cost

[[Page 249]]

reimbursement, fixed-price incentive, and fixed-price redeterminable 
contracts as prescribed in FAR Subpart 42.7.
    (b) When the quick closeout procedures are used, the contracting 
officers must perform a review and validation of the contractor's data 
for accuracy and reasonableness of the proposed rates for negotiating 
the settlement of indirect costs for a specific contract.

                   Subpart 842.8_Disallowance of Costs



Sec. 842.801  Notice of intent to disallow costs.



Sec. 842.801-70  Audit assistance prior to disallowing costs.

    If a contracting officer determines that costs should be disallowed 
during the performance of a cost reimbursement, fixed-price incentive, 
or fixed-price redetermination contract exceeding the thresholds 
specified in FAR 15.403-4, the contracting officer must request audit 
assistance. The VA OIG shall conduct audits of contracts for health care 
resources and contracting officers shall request such audits directly 
from that office. For all other types of contracts, the contracting 
officer must obtain an audit control number from Acquisition Resources 
Service and send a formal request to conduct the audit directly to the 
nearest Defense Contract Audit Agency (DCAA) office, referencing the 
audit control number and the project number (if any).



Sec. 842.803  Disallowing costs after incurrence.

    Contracting officers may approve or disapprove contractors' vouchers 
for payment and process them to the servicing fiscal office. Such 
approval or disapproval must be within the limitations of the 
contracting officer's warrant and the contract for which the voucher is 
submitted must be within the contracting officer's delegation of 
contracting authority.

          Subpart 842.12_Novation and Change-of-Name Agreements



Sec. 842.1203  Processing agreements.

    Before execution of novation and change-of-name agreements, 
contracting officers must submit all supporting agreements and 
documentation to the OGC for review as to legal sufficiency.

       PART 844_SUBCONTRACTING POLICIES AND PROCEDURES [RESERVED]

                       PART 846_QUALITY ASSURANCE

                     Subpart 846.3_Contract Clauses

Sec.

Sec. 846.302 Fixed-price supply contracts.

Sec. 846.302-70 Guarantee clause.

Sec. 846.302-71 Inspection.

Sec. 846.302-72 Frozen processed foods.

Sec. 846.302-73 Noncompliance with packaging, packing and/or marking 
          requirements.

Sec. 846.312 Construction contracts.

           Subpart 846.4_Government Contract Quality Assurance


Sec. 846.408 Single-agency assignments of Government contract quality 
          assurance.

Sec. 846.408-70 Inspection of subsistence.

Sec. 846.408-71 Waiver of USDA inspection and specifications.

Sec. 846.470 Use of commercial organizations for inspections and grading 
          services.

Sec. 846.471 Determination authority.

Sec. 846.472 Inspection of repairs for properties under the Loan 
          Guaranty and Direct Loan Programs.

Sec. 846.472-1 Repairs of $1,000 or less.

Sec. 846.472-2 Repairs in excess of $1,000.

                        Subpart 846.7_Warranties


Sec. 846.710 Contract clauses.

Sec. 846.710-70 Special warranties.

Sec. 846.710-71 Warranty for construction--guarantee period services.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

[[Page 250]]

                     Subpart 846.3_Contract Clauses



Sec. 846.302  Fixed-price supply contracts.



Sec. 846.302-70  Guarantee clause.

    (a) The contracting officer shall insert the clause at 852.246-70, 
Guarantee, in solicitations for the acquisition of equipment.
    (b) If it is industry policy to furnish, but not install, 
replacement material and parts at the contractor's expense, the last 
sentence of the clause at 852.248-70 will be changed to indicate that 
cost of installation shall be borne by the Government. Where it is 
industry policy to guarantee components for the life of the equipment 
(e.g., crystals in transmitters and receivers in radio communications 
systems) or to require that highly technical equipment be returned to 
the factory (at the contractor's or the Government's expense) for 
replacement of defective materials or parts, then the clause will be 
revised to be compatible with such policy.



Sec. 846.302-71  Inspection.

    The contracting officer shall include a ``Rejected Goods'' contract 
clause in solicitations and contracts as follows:
    (a) Except as provided in paragraph (b) of this section, insert the 
clause at 852.246-71, Inspection, in solicitations and contracts for the 
acquisition of supplies or equipment.
    (b) In solicitations and contracts for packing house and dairy 
products, bread and bakery products, and for fresh and frozen fruits and 
vegetables, insert the Alternate I clause at 852.246-71, Inspection.



Sec. 846.302-72  Frozen processed foods.

    The contracting officer shall insert the clause at 852.246-72, 
Frozen processed foods, in solicitations and contracts for frozen 
processed foods.



Sec. 846.302-73  Noncompliance with packaging, packing and/or marking 
          requirements.

    The contracting officer shall insert the clause at 852.246-73, 
Noncompliance with packaging, packing, and/or marking requirements, in 
non-commercial item solicitations and contracts for supplies or 
equipment where there are special packaging, packing and/or marking 
requirements. The clause may be used in commercial item acquisitions if 
a waiver is approved in accordance with FAR 12.302(c) and 812.302.



Sec. 846.312  Construction contracts.

    The contracting officer shall insert the clause at 852.236-74, 
852.236-74, Inspection of construction, in solicitations and contracts 
for construction that include the FAR clause at 52.246-12, Inspection of 
Construction.

           Subpart 846.4_Government Contract Quality Assurance



Sec. 846.408  Single-agency assignments of Government contract quality 
          assurance.



Sec. 846.408-70  Inspection of subsistence.

    (a) Before issuing a solicitation for subsistence, the contracting 
officer must determine whether:
    (1) Representatives of the U.S. Department of Agriculture (USDA) or 
the Department of Commerce will inspect for specification compliance 
before shipment; or
    (2) Personnel of the purchasing activity will inspect for 
specification compliance at the time of delivery.
    (b) The contracting officer must indicate the time and place of 
inspection in the solicitation.
    (c) Because the requirement for USDA or Department of Commerce 
inspections and certifications result in additional contractor costs 
that may be ultimately reflected in bid prices, the contracting officer, 
in consultation with the Chief, Nutrition and Food Service, must 
evaluate the need for such inspections. The evaluation must include the 
following:
    (1) The quality assurance already provided by other mandatory 
inspection systems.
    (2) The proposed suppliers' own quality control system.
    (3) Experience with the proposed suppliers.
    (4) The pre-qualifying of the suppliers' quality assurance systems 
and subsequently waiving inspections and certifications for future 
solicitations.
    (5) The cost of the inspections.

[[Page 251]]

    (d) When the contracting officer indicates that either the USDA or 
the Department of Commerce will conduct the inspection, the contracting 
officer must also provide in the solicitation that the contractor is 
responsible for all of the following:
    (1) Arranging and paying for inspection services.
    (2) Obtaining from the inspectors a certificate indicating that the 
product complies with specifications.
    (3) Assuring that the certificate, or copy, accompanies the shipment 
or is furnished to the receiving installation before shipment, or 
notifying the installation when the certificate is not immediately 
available.
    (4) Seeing that acceptable products are covered by an inspection 
agency checkloading certificate or stamped by the inspector as 
prescribed by the contracting officer.
    (5) Furnishing samples for inspection at the contractor's expense.
    (6) Indicating the address where inspection will occur.
    (e) The contracting officer must furnish a copy of the purchase 
document to the inspecting activity.



Sec. 846.408-71  Waiver of USDA inspection and specifications.

    (a) When the amount of an item to be purchased will not exceed 500 
pounds per delivery, the contracting officer may purchase the following 
without reference to the specifications in Part IV of the Federal Supply 
Catalog, Stock List, FSC Group 89, Subsistence, Publication No. C8900-
SL, and the USDA inspection requirements:
    (1) Butter.
    (2) Cheese (except cottage cheese).
    (3) Sausage.
    (4) Meat food products*.
---------------------------------------------------------------------------

    * ``Meat food products'' means processed foods containing meat in 
substantial proportion and other listed ingredients including seasoning, 
e.g., frankfurters, coldcuts. Whole or prefabricated meats, e.g., pork 
chops, hamburger, are considered meats, not meat food products.
---------------------------------------------------------------------------

    (5) Bacon, smoked.
    (6) Bacon, Canadian style.
    (b) When the items listed in paragraph (a) of this section are 
procured together with items that are not exempt, the contracting 
officer must include the following in the solicitation:

    Items * * * are not required to be in accordance with the 
specifications contained in Part IV of the Federal Supply Catalog, Stock 
List, FSC Group 89, Subsistence, Publication No. C8900-SL, and the 
special USDA inspection is not required. VA will inspect for quality and 
condition upon delivery at destination. These items are, however, 
subject to the quality controls stated herein.

    (c) As appropriate, the contracting officer must include the 
following statements in each invitation for bid, request for proposal, 
quotation, or purchase order:
    (1) Butter. This product must be graded by the USDA and labeled 
``Grade A'' or the grade specified herein.
    (2) Sausage and meat food products.*
    (i) This product must be a high commercial product and must have 
been prepared in a federally inspected plant and bear the USDA 
establishment number stamp evidencing that it is sound, healthful, 
wholesome, and fit for human consumption; and
    (ii) This product must bear a label complying with the Federal Food, 
Drug and Cosmetic Act that requires the listing of all ingredients in 
the order of their predominance.
    (3) Bacon, smoked; and bacon, Canadian style. This product must be a 
high commercial product and must have been prepared in a federally 
inspected plant and bear the USDA establishment number stamp evidencing 
that it is sound, healthful, wholesome, and fit for human consumption.
    (d) When using a ``brand name or equal'' purchase description, the 
contracting officer must list every brand name item that is known to be 
acceptable and available in the area.



Sec. 846.470  Use of commercial organizations for inspections and 
          grading services.

    The contracting officer may use a commercial organization for 
inspection and grading services when the contracting officer determines 
that all of the following conditions exist:
    (a) The results of a technical inspection or grading are dependent 
upon the application of scientific principles or specialized techniques.

[[Page 252]]

    (b) VA is unable to employ the personnel qualified to properly 
perform the services and is unable to locate another Federal agency 
capable of providing the service.
    (c) The inspection or grading results issued by a private 
organization are essential to verify the acceptance or rejection of a 
special commodity.
    (d) The services may be performed without direct Government 
supervision.



Sec. 846.471  Determination authority.

    The following officials must make the determinations required in 
846.470:
    (a) The Director, Office of Construction and Facilities Management, 
for those items and services for which purchase authority has been 
assigned to the Office of Construction and Facilities Management.
    (b) The Director, Veterans Canteen Service, for those items and 
services purchased, or contracted for, by the Veterans Canteen Service 
(except those items purchased from VA supply sources).
    (c) The DSPE for all other supplies, equipment, and services.



Sec. 846.472  Inspection of repairs for properties under the Loan 
          Guaranty and Direct Loan Programs.

    As provided in 846.472-1 and 846.472-2, management brokers or 
qualified fee or staff inspectors must conduct a final inspection of all 
repair programs upon completion. In addition, the broker or inspector 
must conduct intermediate or progress inspections on extensive or 
technical jobs as specified in the contract.



Sec. 846.472-1  Repairs of $1,000 or less.

    (a) Generally, the management broker must make any required 
inspections for repairs of $1,000 or less. A qualified fee or staff 
inspector must make any required inspection for repairs of $1,000 or 
less if the contracting officer:
    (1) Has not assigned the property to a management broker; or,
    (2) Has determined that the nature of the repairs requires 
supervision by a technician.
    (b) There is no form prescribed for inspection of repairs of $1,000 
or less, but the inspector may use VA Form 26-1839, Compliance 
Inspection Report. Regardless of the form in which the report is 
submitted, the inspector must identify the contractor, property, and the 
repair program and provide sufficient detail to enable the contracting 
officer to make a determination that the work is being performed 
satisfactorily or completed in accordance with the terms of the 
contract.



Sec. 846.472-2  Repairs in excess of $1,000.

    (a) A qualified fee or staff inspector must make the final 
inspection and any intermediate or progress inspections on repairs 
exceeding $1,000.
    (b) The inspector must make the report of inspection on VA Form 26-
1839, Compliance Inspection Report. The inspector must identify the 
property, contractor, and repair program and provide sufficient detailed 
information to enable the contracting officer to make a determination 
that the work is being performed satisfactorily or that it has been 
completed in accordance with the terms of the contract. The inspector 
must itemize any deficiencies and explain the deficiencies in detail.

                        Subpart 846.7_Warranties



Sec. 846.710  Contract clauses.

    The contracting officer shall insert the clause at FAR 52.246-21, 
Warranty of Construction, in solicitations and contracts for 
construction that are expected to exceed the micro-purchase threshold.



Sec. 846.710-70  Special warranties.

    The contracting officer shall insert the clause at 852.246-74, 
Special warranties, in solicitations and contracts for construction that 
include the FAR clause at 52.246-21, Warranty of Construction.



Sec. 846.710-71  Warranty for construction--guarantee period services.

    The contracting officer shall insert the clause at 852.246-75, 
Warranty of construction--guarantee period services, in solicitations 
and contracts for construction that include the FAR clause at 52.246-21, 
Warranty of Construction, and that also include guarantee period 
services.

[[Page 253]]

                         PART 847_TRANSPORTATION

            Subpart 847.3_Transportation in Supply Contracts

Sec.

Sec. 847.303 Standard delivery terms and contract clauses.

Sec. 847.303-1 F.o.b. origin.

Sec. 847.303-70 F.o.b. origin, freight prepaid, transportation charges 
          to be included on the invoice.

Sec. 847.305 Solicitation provisions, contract clauses, and 
          transportation factors.

Sec. 847.305-70 Potential destinations known but quantities unknown.

Sec. 847.306 Transportation factors in the evaluation of offers.

Sec. 847.306-70 Transportation payment and audit.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

            Subpart 847.3_Transportation in Supply Contracts



Sec. 847.303  Standard delivery terms and contract clauses.



Sec. 847.303-1  F.o.b. origin.

    Shipments falling within this category must be shipped on a bill of 
lading, except as provided in 41 CFR 102-118.40. Contracting officers 
must comply with 41 CFR Parts 102-117 and 102-118. Contact the Traffic 
Manager for assistance in determining when to issue the applicable bill 
of lading (VA Commercial Bill of Lading for domestic use or Government 
Bill of Lading for international shipments and domestic off-shore 
shipments) and for all freight estimates.



Sec. 847.303-70  F.o.b. origin, freight prepaid, transportation charges 
          to be included on the invoice.

    (a) The delivery terms will be stated as ``f.o.b. origin, 
transportation prepaid, with transportation charges to be included on 
the invoice,'' under any of the following circumstances:
    (1) When it is determined that an f.o.b. origin purchase or delivery 
order will have transportation charges that do not exceed $250 and the 
occasional exception does not exceed that amount by more than $50.
    (2) Single parcel shipments via express, courier, small package, or 
similar carriers, regardless of shipping cost, if the shipped parcel 
weighs 70 pounds or less and does not exceed 108 inches in length and 
girth combined.
    (3) Multi-parcel shipments via express, courier small package, or 
similar carriers for which transportation charges do not exceed $250 per 
shipment.
    (b) Orders issued on VA Form & 90-2138, Orders for Supplies or 
Services, must identify shipping instructions on the reverse side of the 
form. When VA Form 90-2138 is not used, the vendor must do the 
following:
    (1) Consistent with the terms of the contract, pack, mark, and 
prepare shipment in conformance with carrier requirements to protect the 
personal property and assure the lowest applicable transportation 
charge. Follow package specifications found in the National Motor 
Freight Classification 100 Series.
    (2) Add transportation charges as a separate item on the invoice. 
The invoice must include the following certification: ``The invoiced 
transportation charges have been paid and evidence of such payment will 
be furnished upon the Government's request.''
    (3) Not include charges for insurance or valuation on the invoice 
unless the order specifically requires that the shipment be insured or 
the value be declared.
    (4) Not prepay transportation charges on the order if such charges 
are expected to exceed $250. Ship collect and annotate the commercial 
bill of lading, ``To be converted to VA Commercial Bill of Lading.'' 
Contact the VA Traffic Manager for routing instructions and freight 
estimate.
    (c) Each contracting officer is responsible for:
    (1) Obtaining the most accurate estimate possible of transportation 
charges.
    (2) Using the authority in paragraph (a) of this section only when 
consistent with the circumstances in that paragraph.

[[Page 254]]

    (d) When, in accordance with FAR Subpart 28.3 and FAR 47.102, a 
shipment must be insured or the value declared, the contracting officer 
will specifically instruct the vendor to do so on the order when a 
written order is used. If the order is oral, the vendor must annotate 
all copies of the purchase request to show that the insurance/declared 
value was specifically requested.



Sec. 847.305  Solicitation provisions, contract clauses, and 
          transportation factors.



Sec. 847.305-70  Potential destinations known but quantities unknown.

    When the VA National Acquisition Center contracts with multiple 
bidders to provide items directly to VA field installations on an f.o.b. 
origin basis, the evaluation of bids must follow specific procedures. To 
place each bid on an equal basis, even though specific quantities 
required by each facility cannot be predetermined, the contracting 
officer must use an anticipated demand factor in proportion to the 
number of hospital beds or patient workload. The clause prescribed in 
852.247-70 must be used in these instances.



Sec. 847.306  Transportation factors in the evaluation of offers.



Sec. 847.306-70  Transportation payment and audit.

    Transportation payments are audited by the Traffic Manager to ensure 
that payment and payment mechanisms for agency transportation are 
uniform and appropriate in accordance with 41 CFR part 102-118.

                    PART 849_TERMINATION OF CONTRACTS

                    Subpart 849.1_General Principles

Sec.

Sec. 849.101 Authorities and responsibilities.

Sec. 849.106 Fraud or other criminal conduct.

Sec. 849.111 Review of proposed settlements.

Sec. 849.111-70 Required review.

Sec. 849.111-71 Submission of information.

    Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                    Subpart 849.1_General Principles



Sec. 849.101  Authorities and responsibilities.

    (a) While legal review and concurrence of the General Counsel is 
required prior to a default termination, in some cases where a quick 
response is necessary, this review can be expedited by express mailing 
or faxing the default letter and related documents which are required to 
make an evaluation directly to General Counsel (025). The default 
termination letter should contain, at a minimum, the following:
    (1) The proposed termination (FAR 49.102);
    (2) An explanation of what necessitated the default, including the 
reasons why the contracting officer considers the contractor to be in 
default;
    (3) A statement that the factors set forth in FAR 49.402-3(f) have 
been fully considered; and
    (4) Final decision language and appeal rights.
    (b) Contracts containing a mutual termination clause may be 
terminated without reference to the General Counsel.



Sec. 849.106  Fraud or other criminal conduct.

    (a) If the contracting officer suspects fraud or other criminal 
conduct related to the settlement of a terminated contract, the 
contracting officer must do the following:
    (1) Immediately discontinue all negotiations.
    (2) Submit all of the pertinent facts necessary to support the 
suspicions to either of the following:
    (i) The DSPE.
    (ii) The Director, Office of Construction and Facilities Management, 
in the case of contracting officers from the Office of Construction and 
Facilities Management.
    (3) Follow procedures as provided in 809.406-3 and 809.407-3.
    (b) The DSPE or the Director, Office of Construction and Facilities 
Management, must review the submission and fully develop the facts.

[[Page 255]]

    (c) If the evidence indicates fraud or other criminal conduct, the 
DSPE or the Director, Office of Construction and Facilities Management, 
must forward the submission with recommendations through channels (to 
include OGC, if appropriate), to the Office of the Inspector General 
(OIG) for referral to the Department of Justice.
    (d) The DSPE or the Director, Office of Construction and Facilities 
Management, will advise the contracting officer as to any further action 
to be taken. Pending receipt of this advice, no VA employee may discuss 
the matter with the contractor.
    (e) VA will not initiate a collection, recovery or other settlement 
action while the matter is in the hands of the Department of Justice 
without first obtaining the concurrence of the U.S. Attorney concerned, 
through OIG.
    (f) If the contractor makes an inquiry, the contracting officer will 
advise only that the proposal has been forwarded to higher authority.



Sec. 849.111  Review of proposed settlements.



Sec. 849.111-70  Required review.

    (a) FAR 49.111 requires each agency to establish procedures, when 
necessary, for the administrative review of proposed termination 
settlements. Contracting officers shall submit proposed termination 
settlements or determinations of amounts due the contractor under a 
terminated contract that involve the expenditure of $100,000 or more of 
Government funds to the Director, Acquisition Program Management 
Division, or the Director, Acquisition Assistance Team, as appropriate, 
for technical and legal review (see 801.602-72(i)). Contracting officers 
shall not execute the settlement agreement or determination prior to 
receipt of the technical and legal review. The legal review of contracts 
awarded by or on behalf of the VA OIG will be conducted by the Counselor 
to the Inspector General.
    (b) If the contracting officer declines to implement one or more of 
the recommendations or comments contained in the review memorandum, the 
contracting officer shall submit a written response to the Director, 
Acquisition Program Management Division, or the Director, Acquisition 
Assistance Team, as appropriate, explaining why the recommendations or 
comments were not followed. For contracts awarded by or on behalf of the 
VA OIG, the response shall be submitted to the Counselor to the 
Inspector General.



Sec. 849.111-71  Submission of information.

    (a) The contracting officer shall submit to the appropriate 
Acquisition Program Management Division or Acquisition Assistance Team 
office a copy of the proposed settlement agreement or determination, 
supported by such detailed information as is required for an adequate 
review. This information should normally include copies of:
    (1) The contractor's or subcontractor's settlement proposal.
    (2) The audit report.
    (3) The property disposed report and any required approvals in 
connection therewith,
    (4) The contracting officer's memorandum explaining the settlement, 
and
    (5) Any other relevant material that will assist the procurement 
analyst in the review. The procurement analyst may, at his or her 
discretion, require the submission of additional information.
    (b) The Director, Acquisition Program Management Division, or the 
Director, Acquisition Assistance Team, will obtain the concurrence or 
comments of OGC prior to forwarding the review to the contracting 
officer, except that the concurrence or comments will be obtained from 
the Counselor to the Inspector General for contracts awarded by or on 
behalf of the VA Office of Inspector General.

[[Page 256]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 852_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

       Subpart 852.1_Instructions for Using Provisions and Clauses

Sec.

Sec. 852.101 Using part 852.

Sec. 852.102 Incorporating provisions and clauses.

              Subpart 852.2_Text of Provisions and Clauses


Sec. 852.203-70 Commercial advertising.

Sec. 852.203-71 Display of Department of Veterans Affairs hotline 
          poster.

Sec. 852.207-70 Report of employment under commercial activities.

Sec. 852.209-70 Organizational conflicts of interest.

Sec. 852.211-70 Service data manuals.

Sec. 852.211-71 Special notice.

Sec. 852.211-72 Technical industry standards.

Sec. 852.211-73 Brand name or equal.

Sec. 852.211-74 Liquidated damages.

Sec. 852.211-75 Product specifications.

Sec. 852.214-70 Caution to bidders--bid envelopes.

Sec. 852.214-71 Restrictions on alternate item(s).

Sec. 852.214-72 Alternate item(s).

Sec. 852.214-73 Alternate packaging and packing.

Sec. 852.214-74 Bid samples.

Sec. 852.215-70 Service-disabled veteran-owned and veteran-owned small 
          business evaluation factors.

Sec. 852.215-71 Evaluation factor commitments.

Sec. 852.216-70 Estimated quantities.

Sec. 852.219-9 VA Small business subcontracting plan minimum 
          requirements.

Sec. 852.219-10 VA Notice of total service-disabled veteran-owned small 
          business set-aside.

Sec. 852.219-11 VA notice of total veteran-owned small business set-
          aside.

Sec. 852.219-71 VA mentor-prot[eacute]g[eacute] program.

Sec. 852.219-72 Evaluation factor for participation in the VA mentor-
          prot[eacute]g[eacute] program.

Sec. 852.222-70 Contract Work Hours and Safety Standards Act--nursing 
          home care contract supplement.

Sec. 852.228-70 Bond premium adjustment.

Sec. 852.228-71 Indemnification and insurance.

Sec. 852.228-72 Assisting service-disabled veteran-owned and veteran-
          owned small businesses in obtaining bonds.

Sec. 852.229-70 Sales or use taxes.

Sec. 852.229-71 [Reserved]

Sec. 852.232-72 Electronic submission of payment requests.

Sec. 852.233-70 Protest content/alternative dispute resolution.

Sec. 852.233-71 Alternate protest procedure.

Sec. 852.236-70 [Reserved]

Sec. 852.236-71 Specifications and drawings for construction.

Sec. 852.236-72 Performance of work by the contractor.

Sec. 852.236-73 [Reserved]

Sec. 852.236-74 Inspection of construction.

Sec. 852.236-75 [Reserved]

Sec. 852.236-76 Correspondence.

Sec. 852.236-77 Reference to ``standards.''

Sec. 852.236-78 Government supervision.

Sec. 852.236-79 Daily report of workers and material.

Sec. 852.236-80 Subcontracts and work coordination.

Sec. 852.236-81 [Reserved]

Sec. 852.236-82 Payments under fixed-price construction contracts 
          (without NAS).

Sec. 852.236-83 Payments under fixed-price construction contracts 
          (including NAS).

Sec. 852.236-84 Schedule of work progress.

Sec. 852.236-85 Supplementary labor standards provisions.

Sec. 852.236-86 Worker's compensation.

Sec. 852.236-87 Accident prevention.

Sec. 852.236-88 Contract changes--supplement.

Sec. 852.236-89 Buy American Act.

Sec. 852.236-90 Restriction on submission and use of equal products.

Sec. 852.236-91 Special notes.

Sec. 852.237-7 Indemnification and medical liability insurance.

Sec. 852.237-70 Contractor responsibilities.

Sec. 852.246-70 Guarantee.

Sec. 852.246-71 Inspection.

Sec. 852.246-72 Frozen processed foods.

Sec. 852.246-73 Noncompliance with packaging, packing and/or marking 
          requirements.

Sec. 852.246-74 Special warranties.

Sec. 852.246-75 Warranties for construction--guarantee period services.

Sec. 852.247-70 Determining transportation costs for bid evaluation.

Sec. 852.252-70 Solicitation provisions or clauses incorporated by 
          reference.

Sec. 852.270-1 Representatives of contracting officers.

Sec. 852.270-2 Bread and bakery products--quantities.

Sec. 852.270-3 Purchase of shellfish.

Sec. 852.271-70 Nondiscrimination in services provided to beneficiaries.

Sec. 852.271-71 [Reserved]

Sec. 852.271-72 Time spent by counselee in counseling process.

Sec. 852.271-73 Use and publication of counseling results.

Sec. 852.271-74 Inspection.

Sec. 852.271-75 Extension of contract period.

Sec. 852.273-70 Late offers.

Sec. 852.273-71 Alternative negotiation techniques.

[[Page 257]]


Sec. 852.273-72 Alternative evaluation.

Sec. 852.273-73 Evaluation--health-care resources.

Sec. 852.273-74 Award without exchanges.

    Authority: 38 U.S.C. 501, 8127, 8128, and 8151-8153; 40 U.S.C. 
121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

       Subpart 852.1_Instructions for Using Provisions and Clauses



Sec. 852.101  Using part 852.

    Part 852 prescribes supplemental provisions and clauses to the FAR. 
Provision and clause numbering are as prescribed in FAR 52.101 (e.g., 
supplementary construction clauses under part 836 are numbered 852.236-
71, 852.236-72, etc.).



Sec. 852.102  Incorporating provisions and clauses.

    (a) As authorized by FAR 52.102(c), any 48 CFR chapter 8 (VAAR) 
provision or clause may be incorporated in a quotation, solicitation, or 
contract by reference, provided the contracting officer complies with 
the requirements stated in FAR 52.102(c)(1), (c)(2), and (c)(3). To 
ensure compliance with FAR 52.102(c)(1) and (c)(2), contracting officers 
shall insert the provision found at 852.252-70, Solicitation provisions 
or clauses incorporated by reference, in full text in a quotation, 
solicitation, or contract if the quotation, solicitation, or contract 
incorporates by reference a FAR or 48 CFR chapter 8 (VAAR) provision or 
clause that requires completion by the offeror or prospective contractor 
and submittal with the quotation or offer.
    (b) For any FAR or 48 CFR Capter 8 (VAAR) provision or clause that 
requires completion by the contracting officer, the contracting officer 
shall, as a minimum, insert the title of the provision or clause and the 
paragraph that requires completion in full text in the quotation, 
solicitation, or contract. The balance of the provision or clause may be 
incorporated by reference.
    (c) When one or more FAR or 48 CFR chapter 8 (VAAR) provisions, or 
portions thereof, are incorporated in a quotation or solicitation by 
reference, the contracting officer shall insert in the quotation or 
solicitation the provision found at FAR 52.252-1, Solicitation 
Provisions Incorporated by Reference.
    (d) When one or more FAR or 48 CFR chapter 8 (VAAR) clauses, or 
portions thereof, are incorporated in a quotation, solicitation, or 
contract by reference, the contracting officer shall insert in the 
quotation, solicitation, or contract the clause found at FAR 52.252-2, 
Clauses Incorporated by Reference.
    (e) If one or more FAR provisions or clauses, or portions thereof, 
are incorporated in a quotation, solicitation, or contract by reference, 
the contracting officer shall insert in the FAR provision or clause 
required by paragraph (c) or (d) of this section the following Internet 
address: http://www.acquisition.gov/comp/far/index.html.
    (f) If one or more 48 CFR chapter 8 (VAAR) provisions or clauses, or 
portions thereof, are incorporated in a quotation, solicitation, or 
contract by reference, the contracting officer shall insert in the FAR 
provision or clause required by paragraph (c) or (d) of this section the 
following Internet address: http://www1.va.gov/oamm/acquisitions/ars/
policyreg/vaar/index.htm.

              Subpart 852.2_Texts of Provisions and Clauses



Sec. 852.203-70  Commercial advertising.

    As prescribed in 803.570-2, insert the following clause:

                    Commercial Advertising (JAN 2008)

    The bidder or offeror agrees that if a contract is awarded to him/
her, as a result of this solicitation, he/she will not advertise the 
award of the contract in his/her commercial advertising in such a manner 
as to state or imply that the Department of Veterans Affairs endorses a 
product, project or commercial line of endeavor.

                             (End of clause)



Sec. 852.203-71  Display of Department of Veterans Affairs hotline 
          poster.

    As prescribed in 803.7001, insert the following clause:

[[Page 258]]

   Display of Department of Veterans Affairs Hotline Poster (DEC 1992)

    (a) Except as provided in paragraph (c) below, the Contractor shall 
display prominently, in common work areas within business segments 
performing work under VA contracts, Department of Veterans Affairs 
Hotline posters prepared by the VA Office of Inspector General.
    (b) Department of Veterans Affairs Hotline posters may be obtained 
from the VA Office of Inspector General (53E), P.O. Box 34647, 
Washington, DC 20043-4647.
    (c) The Contractor need not comply with paragraph (a) above if the 
Contractor has established a mechanism, such as a hotline, by which 
employees may report suspected instances of improper conduct, and 
instructions that encourage employees to make such reports.

                             (End of clause)



Sec. 852.207-70  Report of employment under commercial activities.

    As prescribed in 807.304-77 and 873.110, the following clause will 
be included in A-76 cost comparison solicitations and solicitations 
issued under the authority of 38 U.S.C. 8151-8153 that may result in 
conversion from in-house to contract performance of work:

       Report of Employment Under Commercial Activities (JAN 2008)

    (a) Consistent with the Government post-employment conflict of 
interest regulations, the contractor shall give adversely affected 
Federal personnel the right of first refusal for all employment openings 
under this contract for which they are qualified.
    (b) Definitions. (1) Adversely affected Federal personnel means:
    (i) Permanent Federal personnel who are assigned to the government 
commercial activity, or
    (ii) Federal personnel who are identified for release from their 
competitive levels or separated as a result of the contract.
    (2) Employment openings means position vacancies created by this 
contract that the contractor is unable to fill with personnel in the 
contractor's employ at the time of the contract award. The term includes 
positions within a 50-mile radius of the commercial activity that 
indirectly arise in the contractor's organization as a result of the 
contractor's reassignment of employees due to the award of this 
contract.
    (3) Contract start date means the first day of contractor 
performance.
    (c) Filling employment openings. (1) For a period beginning with 
contract award and ending 90 calendar days after the contract start 
date, no person other than adversely affected Federal personnel on the 
current listing provided by the contracting officer shall be offered an 
employment opening until all adversely affected and qualified Federal 
personnel identified by the contracting officer have been offered the 
job and refused it.
    (2) The contractor may select any person for an employment opening 
when there are no qualified adversely affected Federal personnel on the 
latest current listing provided by the contracting officer.
    (d) Contracting reporting requirements. (1) No later than 5 working 
days after contract award, the contractor shall furnish the contracting 
officer with the following:
    (i) A list of employment openings including salaries and benefits, 
and
    (ii) Sufficient job application forms for adversely affected Federal 
personnel.
    (2) By the contract start date, the contractor shall provide the 
contracting officer with the following:
    (i) The names of adversely affected Federal personnel offered an 
employment opening;
    (ii) The date the offer was made;
    (iii) A brief description of the position;
    (iv) The date of acceptance of the offer and the effective date of 
employment;
    (v) The date of rejection of the offer, if applicable, and the 
salary and benefits contained in the rejected offer; and
    (vi) The names of any adversely affected Federal personnel who 
applied but were not offered employment and the reason(s) for 
withholding an offer.
    (3) For the first 90 calendar days after the contract start date, 
the contractor shall provide the contracting officer with the names of 
all persons hired or terminated under the contract within 5 working days 
of such hiring or termination.
    (e) Information provided to the contractor. (1) No later than 10 
calendar days after the contract award, the contracting officer shall 
furnish the contractor a current list of adversely affected Federal 
personnel exercising the right of first refusal, along with their 
completed job application forms.
    (2) Between the contract award and start dates, the contracting 
officer shall inform the contractor of any reassignment or transfer of 
adversely affected Federal personnel to other Federal positions.
    (3) For a period of up to 90 calendar days after the contract start 
date, the contracting officer will periodically provide the contractor 
with an updated listing of adversely affected Federal personnel 
reflecting personnel who were recently released from their competitive 
levels or separated as a result of the contract award.
    (f) Qualifications determination. The contractor has a right under 
this clause to determine adequacy of the qualifications of adversely 
affected Federal personnel for any employment openings. However, 
adversely affected Federal personnel who held jobs in

[[Page 259]]

the Government commercial activity that directly correspond to an 
employment opening shall be considered qualified for the job. Questions 
concerning the qualifications of adversely affected Federal personnel 
for specific employment openings shall be referred to the contracting 
officer for determination. The contracting officer's determination shall 
be final and binding on all parties.
    (g) Relating to other statutes, regulations and employment policies. 
The requirements of this clause shall not modify or alter the 
contractor's responsibilities under statutes, regulations or other 
contract clauses pertaining to the hiring of veterans, minorities, or 
persons with disabilities.
    (h) Penalty for noncompliance. Failure of the contractor to comply 
with any provision of the clause may be grounds for termination for 
default.

                             (End of clause)



Sec. 852.209-70  Organizational conflicts of interest.

    As prescribed in 809.507-1(b), insert the following provision:

             Organizational Conflicts of Interest (JAN 2008)

    (a) It is in the best interest of the Government to avoid situations 
which might create an organizational conflict of interest or where the 
offeror's performance of work under the contract may provide the 
contractor with an unfair competitive advantage. The term 
``organizational conflict of interest'' means that because of other 
activities or relationships with other persons, a person is unable to 
render impartial assistance or advice to the Government, or the person's 
objectivity in performing the contract work is or might be otherwise 
impaired, or the person has an unfair competitive advantage.
    (b) The offeror shall provide a statement with its offer which 
describes, in a concise manner, all relevant facts concerning any past, 
present, or currently planned interest (financial, contractual, 
organizational, or otherwise) or actual or potential organizational 
conflicts of interest relating to the services to be provided under this 
solicitation. The offeror shall also provide statements with its offer 
containing the same information for any consultants and subcontractors 
identified in its proposal and which will provide services under the 
solicitation. The offeror may also provide relevant facts that show how 
its organizational and/or management system or other actions would avoid 
or mitigate any actual or potential organizational conflicts of 
interest.
    (c) Based on this information and any other information solicited or 
obtained by the contracting officer, the contracting officer may 
determine that an organizational conflict of interest exists which would 
warrant disqualifying the contractor for award of the contract unless 
the organizational conflict of interest can be mitigated to the 
contracting officer's satisfaction by negotiating terms and conditions 
of the contract to that effect. If the conflict of interest cannot be 
mitigated and if the contracting officer finds that it is in the best 
interest of the United States to award the contract, the contracting 
officer shall request a waiver in accordance with FAR 9.503 and 48 CFR 
809.503.
    (d) Nondisclosure or misrepresentation of actual or potential 
organizational conflicts of interest at the time of the offer, or 
arising as a result of a modification to the contract, may result in the 
termination of the contract at no expense to the Government.

                           (End of provision)



Sec. 852.211-70  Service data manuals.

    (a) As prescribed in 811.107(a), insert the following clause:

                     Service Data Manuals (NOV 1984)

    (a) The successful bidder will supply operation/maintenance (service 
data) manuals with each piece of equipment in the quantity specified in 
the solicitation and resulting purchase order. As a minimum, the 
manual(s) shall be bound and equivalent to the manual(s) provided the 
manufacturer's designated field service representative as well as comply 
with all the requirements in paragraphs (b) through (i) of this clause. 
Sections, headings and section sequence identified in (b) through (i) of 
this clause are typical and may vary between manufacturers. Variances in 
the sections, headings and section sequence, however, do not relieve the 
manufacturer of his/her responsibility in supplying the technical data 
called for therein.
    (b) Title page and front matter. The title page shall include the 
equipment nomenclature, model number, effective date of the manual and 
the manufacturer's name and address. If the manual applies to a 
particular version of the equipment only, the title page shall also list 
that equipment's serial number. Front matter shall consist of the Table 
of Contents, List of Tables, List of Illustrations and a frontispiece 
(photograph or line drawing) depicting the equipment.
    (c) Section I, General Description. This section shall provide a 
generalized description of the equipment or devices and shall describe 
its purpose or intended use. Included in this section will be a table 
listing all pertinent equipment specifications, power requirements, 
environmental limitations and physical dimensions.

[[Page 260]]

    (d) Section II, Installation. Section II shall provide pertinent 
installation information. It shall list all input and output connectors 
using applicable reference designators and functional names as they 
appear on the equipment. Included in this listing will be a brief 
description of the function of each connector along with the connector 
type. Instructions shall be provided as to the recommended method of 
repacking the equipment for shipment (packing material, labeling, etc.).
    (e) Section III, Operation. Section III will fully describe the 
operation of the equipment and shall include a listing of each control 
with a brief description of its function and step-by-step procedures for 
each operating mode. Procedures will use the control(s) nomenclature as 
it appears on the equipment and will be keyed to one or more 
illustrations of the equipment. Operating procedures will include any 
preoperational checks, calibration adjustments and operation tests. 
Notes, cautions and warnings shall be set off from the text body so they 
may easily be recognizable and will draw the attention of the reader. 
Illustrations should be used wherever possible depicting equipment 
connections for test, calibration, patient monitoring and measurements. 
For large, complex and/or highly versatile equipment capable of many 
operating modes and in other instances where the Operation Section is 
quite large, operational information may be bound separately in the form 
of an Operators Manual. The providing of a separate Operators manual 
does not relieve the supplier of his responsibility for providing the 
minimum acceptable maintenance data specified herein. When applicable, 
flow charts and narrative descriptions of software shall be provided. If 
programming is either built-in and/or user modifiable, a complete 
software listing shall be supplied. Equipment items with software 
packages shall also include diagnostic routines and sample outputs. 
Submission information shall be given in the Maintenance Section to 
identify equipment malfunctions that are software related.
    (f) Section IV, Principles of Operation. This section shall describe 
in narrative form the principles of operation of the equipment. 
Circuitry shall be discussed in sufficient detail to be understood by 
technicians and engineers who possess a working knowledge of electronics 
and a general familiarity with the overall application of the devices. 
The circuit descriptions should start at the overall equipment level and 
proceed to more detailed circuit descriptions. The overall description 
shall be keyed to a functional block diagram of the equipment. Circuit 
descriptions shall be keyed to schematic diagrams discussed in paragraph 
(i) below. It is recommended that for complex or special circuits, 
simplified schematics should be included in this section.
    (g) Section V, Maintenance. The maintenance section shall contain a 
list of recommended test equipment, special tools, preventive 
maintenance instructions and corrective information. The list of test 
equipment shall be that recommended by the manufacturer and shall be 
designated by manufacturer and model number. Special tools are those 
items not commercially available or those that are designed specifically 
for the equipment being supplied. Sufficient data will be provided to 
enable their purchase by the Department of Veterans Affairs. Preventive 
maintenance instructions shall consist of those recommended by the 
manufacturer to preclude unnecessary failures. Procedures and the 
recommended frequency of performance shall be included for visual 
inspection, cleaning, lubricating, mechanical adjustments and circuit 
calibration. Corrective maintenance shall consist of the data necessary 
to troubleshoot and rectify a problem and shall include procedures for 
realigning and testing the equipment. Troubleshooting shall include 
either a list of test points with the applicable voltage levels or 
waveforms that would be present under a certain prescribed set of 
conditions, a troubleshooting chart listing the symptom, probable cause 
and remedy, or a narrative containing sufficient data to enable a test 
technician or electronics engineer to determine and locate the probable 
cause of malfunction. Data shall also be provided describing the 
preferred method of repairing or replacing discrete components mounted 
on printed circuit boards or located in areas where special steps must 
be followed to disassemble the equipment. Procedures shall be included 
to realign and test the equipment at the completion of repairs and to 
restore it to its original operating condition. These procedures shall 
be supported by the necessary waveforms and voltage levels, and data for 
selecting matched components. Diagrams, either photographic or line, 
shall show the location of printed circuit board mounted components.
    (h) Section VI, Replacement Parts List. The replacement parts list 
shall list, in alphanumeric order, all electrical/electronic, mechanical 
and pneumatic components, their description, value and tolerance, true 
manufacturer and manufacturers' part number.
    (i) Section VII, Drawings. Wiring and schematic diagrams shall be 
included. The drawings will depict the circuitry using standard symbols 
and shall include the reference designations and component values or 
type designators. Drawings shall be clear and legible and shall not be 
engineering or productions sketches.

[[Page 261]]

                             (End of clause)

    Alternate I (JAN 2008). If the bid or proposal will result in the 
initial purchase (including each make and model) of a centrally procured 
item, insert the following paragraph:

    (j) Initial purchase. The contractor agrees, when requested by the 
contracting officer, to furnish not more than three copies of the 
technical documentation required by paragraph 852.211-70(a) to the 
Service and Reclamation Division, Hines, IL. In addition, the contractor 
agrees to furnish two additional copies of the technical documentation 
required by 852.211-70(a) with each piece of equipment sold as a result 
of the invitation for bid or request for proposal.
    (b) As prescribed in 811.107(b), insert the following clause:

          Service Data Manuals, Mechanical Equipment (JAN 2008)

    The contractor agrees to furnish two hard copies of a manual, 
handbook or brochure containing operating, installation, and maintenance 
instructions (including pictures or illustrations, schematics, and 
complete repair/test guides as necessary). Where applicable, it will 
include electrical data and connection diagrams for all utilities. The 
instructions shall also contain a complete list of all replaceable parts 
showing part number, name, and quantity required.

                             (End of clause)



Sec. 852.211-71  Special notice.

    As prescribed in 870.112, insert the following provision:

                        Special Notice (JAN 2008)

    Descriptive literature. The submission of descriptive literature 
with offers is not required and voluntarily submitted descriptive 
literature that qualifies the offer will require rejection of the offer. 
However, within 5 days after award of the contract, the contractor will 
submit to the contracting officer literature describing the equipment 
he/she intends to furnish and indicating strict compliance with the 
specification requirements. The contracting officer will, by written 
notice to the contractor within 20 calendar days after receipt of the 
literature, approve, conditionally approve, or disapprove the equipment 
being proposed. The notice of approval or conditional approval will not 
relieve the contractor from complying with all requirements of the 
specifications and all other terms and conditions of this contract. A 
notice of conditional approval will state any further action required of 
the contractor. A notice of disapproval will cite reasons therefore. If 
the equipment is disapproved by the Government, the contractor will be 
subject to action under the Default or Termination for Cause provision 
of this contract. However, prior to default or termination for cause 
action the contractor will be permitted a period (at least 10 days) 
under that clause to submit additional descriptive literature on 
equipment originally offered or descriptive literature on other 
equipment. The Government reserves the right to require an equitable 
adjustment of the contract price for any extension of the delivery 
schedule necessitated by additional descriptive literature evaluations.

                           (End of provision)



Sec. 852.211-72  Technical industry standards.

    As prescribed in 811.103-70, insert the following provision:

                 Technical Industry Standards (JAN 2008)

    The supplies or equipment required by this invitation for bid or 
request for proposal must conform to the standards of the [ ]* and [ ]* 
as to [ ]**. The successful bidder or offeror will be required to submit 
proof that the item(s) he/she furnishes conforms to this requirement. 
This proof may be in the form of a label or seal affixed to the 
equipment or supplies, warranting that they have been tested in 
accordance with and conform to the specified standards. Proof may also 
be furnished in the form of a certificate from one of the above listed 
organizations certifying that the item(s) furnished have been tested in 
accordance with and conform to the specified standards.
---------------------------------------------------------------------------

    * Insert name(s) of organization(s), the standards of which are 
pertinent to the Government's needs.
    ** Insert pertinent standards, e.g., fire and casualty, safety and 
fire protection.
---------------------------------------------------------------------------

                           (End of provision)



Sec. 852.211-73  Brand name or equal.

    As prescribed in 811.104-71, insert the following clause:

                     Brand Name or Equal (JAN 2008)

    (Note: As used in this clause, the term ``brand name'' includes 
identification of products by make and model.)
    (a) If items called for by this invitation for bids have been 
identified in the schedule by a ``brand name or equal'' description, 
such identification is intended to be descriptive, but not restrictive, 
and is to indicate the quality and characteristics of products that will 
be satisfactory. Bids offering ``equal'' products (including products of 
the brand

[[Page 262]]

name manufacturer other than the one described by brand name) will be 
considered for award if such products are clearly identified in the bids 
and are determined by the Government to meet fully the salient 
characteristics requirements listed in the invitation.
    (b) Unless the bidder clearly indicates in the bid that the bidder 
is offering an ``equal'' product, the bid shall be considered as 
offering a brand name product referenced in the invitation for bids.
    (c)(1) If the bidder proposes to furnish an ``equal'' product, the 
brand name, if any, of the product to be furnished shall be inserted in 
the space provided in the invitation for bids, or such product shall be 
otherwise clearly identified in the bid. The evaluation of bids and the 
determination as to equality of the product offered shall be the 
responsibility of the Government and will be based on information 
furnished by the bidder or identified in his/her bid as well as other 
information reasonably available to the purchasing activity. CAUTION TO 
BIDDERS. The purchasing activity is not responsible for locating or 
securing any information that is not identified in the bid and 
reasonably available to the purchasing activity. Accordingly, to insure 
that sufficient information is available, the bidder must furnish as a 
part of his/her bid all descriptive material (such as cuts, 
illustrations, drawings or other information) necessary for the 
purchasing activity to:
    (i) Determine whether the product offered meets the salient 
characteristics requirement of the Invitation for Bids, and
    (ii) Establish exactly what the bidder proposes to furnish and what 
the Government would be binding itself to purchase by making an award. 
The information furnished may include specific references to information 
previously furnished or to information otherwise available to the 
purchasing activity.
    (2) If the bidder proposes to modify a product so as to make it 
conform to the requirements of the Invitation for Bids, he/she shall:
    (i) Include in his/her bid a clear description of such proposed 
modifications, and
    (ii) Clearly mark any descriptive material to show the proposed 
modifications.
    (3) Modifications proposed after bid opening to make a product 
conform to a brand name product referenced in the Invitation for Bids 
will not be considered.

                             (End of clause)



Sec. 852.211-74  Liquidated damages.

    As prescribed in 811.503 and 836.206, the contracting officer may 
insert the following clause when appropriate:

                      Liquidated Damages (JAN 2008)

    If any unit of the work contracted for is accepted in advance of the 
whole, the rate of liquidated damages assessed will be in the ratio that 
the value of the unaccepted work bears to the total amount of the 
contract. If a separate price for unaccepted work has not been stated in 
the contractor's bid, determination of the value thereof will be made 
from schedules of costs furnished by the contractor and approved by the 
contracting officer, as specified elsewhere in the contract.

                             (End of clause)



Sec. 852.211-75  Product specifications.

    As prescribed in 811.204, insert the following clause:

                    Product Specifications (JAN 2008)

    The products offered under this solicitation shall be type --------
--------, grade ----------------, in accordance with [type of 
specification] No. ----------------, dated ---------------- and 
amendment ---------------- dated --------, except for paragraphs ------
---------- and ---------------- which are amended as follows: [List any 
amendments to the specifications]

                             (End of clause)



Sec. 852.214-70  Caution to bidders--bid envelopes.

    As provided in 814.201-6(a), the following provision will be 
included in all invitations for bid:

              Caution to Bidders--Bid Envelopes (JAN 2008)

    It is the responsibility of each bidder to take all necessary 
precautions, including the use of proper mailing cover, to insure that 
the bid price cannot be ascertained by anyone prior to bid opening. If a 
bid envelope is furnished with this invitation, the bidder is requested 
to use this envelope in submitting the bid. The bidder may, however, use 
any suitable envelope, identified by the invitation number and bid 
opening time and date. If an Optional Form (OF) 17, Sealed Bid Label, is 
furnished with this invitation in lieu of a bid envelope, the bidder is 
advised to complete and affix the OF 17 to the lower left corner of the 
envelope used in submitting the bid.

                           (End of provision)



Sec. 852.214-71  Restrictions on alternate item(s).

    As prescribed in 814.201-6(b)(1), insert the following provision:

[[Page 263]]

              Restrictions on Alternate Item(s) (JAN 2008)

    Bids on [ ]* will be considered only if acceptable bids on [ ]** are 
not received or do not satisfy the total requirement.
---------------------------------------------------------------------------

    * Contracting officer will insert an alternate item that is 
considered acceptable.
    ** Contracting officer will insert the required item and item 
number.
---------------------------------------------------------------------------

                           (End of provision)



Sec. 852.214-72  Alternate item(s).

    As prescribed in 814.201-6(b)(2), insert the following provision:

                      Alternate Item(s) (JAN 2008)

    Bids on [ ]* will be given equal consideration along with bids on [ 
]** and any such bids received may be accepted if to the advantage of 
the Government. Tie bids will be decided in favor of [ ].**
---------------------------------------------------------------------------

    * Contracting officer will insert an alternate item that is 
considered acceptable.
    ** Contracting officer will insert the required item and item 
number.
---------------------------------------------------------------------------

                           (End of provision)



Sec. 852.214-73  Alternate packaging and packing.

    As prescribed in 814.201-6(b)(3), insert the following provision:

               Alternate Packaging and Packing (JAN 2008)

    The bidder's offer must clearly indicate the quantity, package size, 
unit, or other different feature upon which the quote is made. 
Evaluation of the alternate or multiple alternates will be made on a 
common denominator such as per ounce, per pound, etc., basis.

                           (End of provision)



Sec. 852.214-74  Bid samples.

    As prescribed in 814.201-6(c), insert the following provision:

                         Bid Samples (JAN 2008)

    Any bid sample(s) furnished must be in the quantities specified in 
the solicitation and plainly marked with the complete lettering/
numbering and description of the related bid item(s); the number of the 
Invitation for Bids; and the name of the bidder submitting the bid 
sample(s). Cases or packages containing any bid sample(s) must be 
plainly marked ``Bid Sample(s)'' and all changes pertaining to the 
preparation and transportation of bid sample(s) must be prepaid by the 
bidder. Bid sample(s) must be received at the location specified in the 
solicitation by the time and date for receipt of bids.

                           (End of provision)



Sec. 852.215-70  Service-disabled veteran-owned and veteran-owned small 
          business evaluation factors.

    As prescribed in 815.304-71(a), insert the following clause:

    Service-Disabled Veteran-Owned and Veteran-Owned Small Business 
                           Evaluation Factors

                               (DEC 2009)

    (a) In an effort to achieve socioeconomic small business goals, 
depending on the evaluation factors included in the solicitation, VA 
shall evaluate offerors based on their service-disabled veteran-owned or 
veteran-owned small business status and their proposed use of eligible 
service-disabled veteran-owned small businesses and veteran-owned small 
businesses as subcontractors.
    (b) Eligible service-disabled veteran-owned offerors will receive 
full credit, and offerors qualifying as veteran-owned small businesses 
will receive partial credit for the Service-Disabled Veteran-Owned and 
Veteran-owned Small Business Status evaluation factor. To receive 
credit, an offeror must be registered and verified in Vendor Information 
Pages (VIP) database. (http://www.VetBiz.gov).
    (c) Non-veteran offerors proposing to use service-disabled veteran-
owned small businesses or veteran-owned small businesses as 
subcontractors will receive some consideration under this evaluation 
factor. Offerors must state in their proposals the names of the SDVOSBs 
and VOSBs with whom they intend to subcontract and provide a brief 
description of the proposed subcontracts and the approximate dollar 
values of the proposed subcontracts. In addition, the proposed 
subcontractors must be registered and verified in the VetBiz.gov VIP 
database (http://www.vetbiz.gov).

                             (End of clause)

[74 FR 64636, Dec. 8, 2009]



Sec. 852.215-71  Evaluation factor commitments.

    As prescribed in 815.304-71(b), insert the following clause:

                      Evaluation Factor Commitments

                               (DEC 2009)

    The offeror agrees, if awarded a contract, to use the service-
disabled veteran-owned small businesses or veteran-owned small

[[Page 264]]

businesses proposed as subcontractors in accordance with 852.215-70, 
Service-Disabled Veteran-Owned and Veteran-Owned Small Business 
Evaluation Factors, or to substitute one or more service-disabled 
veteran-owned small businesses or veteran-owned small businesses for 
subcontract work of the same or similar value.

                             (End of clause)

[74 FR 64636, Dec. 8, 2009]



Sec. 852.216-70  Estimated quantities.

    As prescribed in 816.504(a), insert the following clause:

                     Estimated Quantities (APR 1984)

    As it is impossible to determine the exact quantities that will be 
required during the contract term, each bidder whose bid is accepted 
wholly or in part will be required to deliver all articles or services 
that may be ordered during the contract term, except as he/she otherwise 
indicates in his/her bid and except as otherwise provided herein. Bids 
will be considered if made with the proviso that the total quantities 
delivered shall not exceed a certain specified quantity. Bids offering 
less than 75 percent of the estimated requirement or which provide that 
the Government shall guarantee any definite quantity, will not be 
considered. The fact that quantities are estimated shall not relieve the 
contractor from filling all orders placed under this contract to the 
extent of his/her obligation. Also, the Department of Veterans Affairs 
shall not be relieved of its obligation to order from the contractor all 
articles or services that may, in the judgment of the ordering officer, 
be needed except that in the public exigency procurement may be made 
without regard to this contract.

                             (End of clause)

    Alternate I (APR 1984). As prescribed in 816.504(b), insert the 
following clause:

                     Estimated Quantities (APR 1984)

    The estimated requirements shown in this invitation for bids cover 
the requirements for the entire contract period. It is understood and 
agreed that during the period of this contract the Government may order 
and the contractor will haul such coal as may, in the opinion of the 
Government, be required, except that in the public exigency procurement 
may be made without regard to this contract.

                             (End of clause)

    Alternate II (APR 1984). As prescribed in 816.504(c), insert the 
following clause:

                     Estimated Quantities (APR 1984)

    The supplies and/or services listed in the attached schedule will be 
furnished at such time and in such quantities as they are required.

                             (End of clause)

    Alternate III (JUL 1989). As prescribed in 816.504(d), insert the 
following clause:

                     Estimated Quantities (JUL 1989)

    As it is impossible to determine the exact quantities that will be 
required during the contract term, each bidder whose bid is accepted 
wholly or in part will be required to deliver all articles that may be 
ordered during the contract term, except as he or she otherwise 
indicates in his or her bid and except as otherwise provided herein. 
Bids will be considered if made with the proviso that the total 
quantities delivered shall not exceed a certain specified quantity. The 
fact that quantities are estimated shall not relieve the contractor from 
filling all orders placed under this contract to the extent of his/her 
obligation. Also, the Department of Veterans Affairs shall not be 
relieved of its obligation to order from the contractor all articles 
that may, in the judgment of the ordering officer, be needed except that 
in the public exigency procurement may be made without regard to this 
contract.

                             (End of clause)



Sec. 852.219-9  VA Small business subcontracting plan minimum 
          requirements.

    As prescribed in subpart 819.709, insert the following clause:

  VA Small Business Subcontracting Plan Minimum Requirements (DEC 2009)

    (a) This clause does not apply to small business concerns.
    (b) If the offeror is required to submit an individual 
subcontracting plan, the minimum goals for award of subcontracts to 
service-disabled veteran-owned small business concerns and veteran-owned 
small business concerns shall be at least commensurate with the 
Department's annual service-disabled veteran-owned small business and

[[Page 265]]

veteran-owned small business prime contracting goals for the total 
dollars planned to be subcontracted.
    (c) For a commercial plan, the minimum goals for award of 
subcontracts to service-disabled veteran-owned small business concerns 
and veteran-owned small businesses shall be at least commensurate with 
the Department's annual service-disabled veteran-owned small business 
and veteran-owned small business prime contracting goals for the total 
value of projected subcontracts to support the sales for the commercial 
plan.
    (d) To be credited toward goal achievements, businesses must be 
verified as eligible in the Vendor Information Pages database. The 
contractor shall annually submit a listing of service-disabled veteran-
owned small businesses and veteran-owned small businesses for which 
credit toward goal achievement is to be applied for the review of 
personnel in the Office of Small and Disadvantaged Business Utilization.
    (e) The contractor may appeal any businesses determined not eligible 
for crediting toward goal achievements by following the procedures 
contained in 819.407.

                             (End of clause)

[74 FR 64636, Dec. 8, 2009]



Sec. 852.219-10  VA Notice of total service-disabled veteran-owned small 
          business set-aside.

    As prescribed in 819.7009, insert the following clause:

  VA Notice of Total Service-Disabled Veteran-Owned Small Business Set-
                            Aside (DEC 2009)

    (a) Definition. For the Department of Veterans Affairs, ``Service-
disabled veteran-owned small business concern'':
    (1) Means a small business concern:
    (i) Not less than 51 percent of which is owned by one or more 
service-disabled veterans or, in the case of any publicly owned 
business, not less than 51 percent of the stock of which is owned by one 
or more service-disabled veterans (or eligible surviving spouses);
    (ii) The management and daily business operations of which are 
controlled by one or more service-disabled veterans (or eligible 
surviving spouses) or, in the case of a service-disabled veteran with 
permanent and severe disability, the spouse or permanent caregiver of 
such veteran;
    (iii) The business meets Federal small business size standards for 
the applicable North American Industry Classification System (NAICS) 
code identified in the solicitation document; and
    (iv) The business has been verified for ownership and control and is 
so listed in the Vendor Information Pages database, (http://
www.VetBiz.gov).
    (2) ``Service-disabled veteran'' means a veteran, as defined in 38 
U.S.C. 101(2), with a disability that is service-connected, as defined 
in 38 U.S.C. 101(16).
    (b) General. (1) Offers are solicited only from service-disabled 
veteran-owned small business concerns. Offers received from concerns 
that are not service-disabled veteran-owned small business concerns 
shall not be considered.
    (2) Any award resulting from this solicitation shall be made to a 
service-disabled veteran-owned small business concern.
    (c) Agreement. A service-disabled veteran-owned small business 
concern agrees that in the performance of the contract, in the case of a 
contract for:
    (1) Services (except construction), at least 50 percent of the cost 
of personnel for contract performance will be spent for employees of the 
concern or employees of other eligible service-disabled veteran-owned 
small business concerns;
    (2) Supplies (other than acquisition from a nonmanufacturer of the 
supplies), at least 50 percent of the cost of manufacturing, excluding 
the cost of materials, will be performed by the concern or other 
eligible service-disabled veteran-owned small business concerns;
    (3) General construction, at least 15 percent of the cost of the 
contract performance incurred for personnel will be spent on the 
concern's employees or the employees of other eligible service-disabled 
veteran-owned small business concerns; or
    (4) Construction by special trade contractors, at least 25 percent 
of the cost of the contract performance incurred for personnel will be 
spent on the concern's employees or the employees of other eligible 
service-disabled veteran-owned small business concerns.
    (d) A joint venture may be considered a service-disabled veteran 
owned small business concern if--
    (1) At least one member of the joint venture is a service-disabled 
veteran-owned small business concern, and makes the following 
representations: That it is a service-disabled veteran-owned small 
business concern, and that it is a small business concern under the 
North American Industry Classification Systems (NAICS) code assigned to 
the procurement;
    (2) Each other concern is small under the size standard 
corresponding to the NAICS code assigned to the procurement; and
    (3) The joint venture meets the requirements of paragraph 7 of the 
explanation of Affiliates in 19.101 of the Federal Acquisition 
Regulation.
    (4) The joint venture meets the requirements of 13 CFR 125.15(b).

[[Page 266]]

    (e) Any service-disabled veteran-owned small business concern (non-
manufacturer) must meet the requirements in 19.102(f) of the Federal 
Acquisition Regulation to receive a benefit under this program.

                             (End of clause)

[74 FR 64637, Dec. 8, 2009]



Sec. 852.219-11  VA notice of total veteran-owned small business set-
          aside.

    As prescribed in 819.7009, insert the following clause:

        VA Notice of Total Veteran-Owned Small Business Set-Aside

                                (DEC2009)

    (a) Definition. For the Department of Veterans Affairs, ``Veteran-
owned small business concern''--
    (1) Means a small business concern--
    (i) Not less than 51 percent of which is owned by one or more 
veterans or, in the case of any publicly owned business, not less than 
51 percent of the stock of which is owned by one or more veterans;
    (ii) The management and daily business operations of which are 
controlled by one or more veterans;
    (iii) The business meets Federal small business size standards for 
the applicable North American Industry Classification System (NAICS) 
code identified in the solicitation document; and
    (iv) The business has been verified for ownership and control and is 
so listed in the Vendor Information Pages database, (http://
www.VetBiz.gov).
    (2) ``Veteran'' is defined in 38 U.S.C. 101(2).
    (b) General. (1) Offers are solicited only from veteran-owned small 
business concerns. All service-disabled veteran-owned small businesses 
are also determined to be veteran-owned small businesses if they meet 
the criteria identified in paragraph (a)(1) of this section. Offers 
received from concerns that are not veteran-owned small business 
concerns shall not be considered.
    (2) Any award resulting from this solicitation shall be made to a 
veteran-owned small business concern.
    (c) Agreement. A veteran-owned small business concern agrees that in 
the performance of the contract, in the case of a contract for--
    (1) Services (except construction), at least 50 percent of the cost 
of personnel for contract performance will be spent for employees of the 
concern or employees of other eligible veteran-owned small business 
concerns;
    (2) Supplies (other than acquisition from a non-manufacturer of the 
supplies), at least 50 percent of the cost of manufacturing, excluding 
the cost of materials, will be performed by the concern or other 
eligible veteran-owned small business concerns;
    (3) General construction, at least 15 percent of the cost of the 
contract performance incurred for personnel will be spent on the 
concern's employees or the employees of other eligible veteran-owned 
small business concerns; or
    (4) Construction by special trade contractors, at least 25 percent 
of the cost of the contract performance incurred for personnel will be 
spent on the concern's employees or the employees of other eligible 
veteran-owned small business concerns.
    (d) A joint venture may be considered a veteran-owned small business 
concern if:
    (1) At least one member of the joint venture is a veteran-owned 
small business concern, and makes the following representations: That it 
is a veteran-owned small business concern, and that it is a small 
business concern under the NAICS code assigned to the procurement;
    (2) Each other concern is small under the size standard 
corresponding to the NAICS code assigned to the procurement;
    (3) The joint venture meets the requirements of paragraph 7 of the 
explanation of Affiliates in 19.101 of the Federal Acquisition 
Regulation; and
    (4) The joint venture meets the requirements of 13 CFR 125.15(b), 
except that the principal company may be a veteran-owned small business 
concern or a service-disabled veteran-owned small business concern.
    (e) Any veteran-owned small business concern (non-manufacturer) must 
meet the requirements in 19.102(f) of the Federal Acquisition Regulation 
to receive a benefit under this program.

                             (End of clause)

[74 FR 64637, Dec. 8, 2009]



Sec. 852.219-71  VA mentor-prot[eacute]g[eacute] program.

    As prescribed in 819.7115(a), insert the following clause:

           VA Mentor-Prot[eacute]g[eacute] Program (DEC 2009)

    (a) Large businesses are encouraged to participate in the VA Mentor-
Prot[eacute]g[eacute] Program for the purpose of providing developmental 
assistance to eligible service-disabled veteran-owned small businesses 
and veteran-owned small businesses to enhance the small businesses' 
capabilities and increase their participation as VA prime contractors 
and as subcontractors.
    (b) The program consists of:
    (1) Mentor firms, which are contractors capable of providing 
developmental assistance;
    (2) Prot[eacute]g[eacute] firms, which are service-disabled veteran-
owned small business concerns

[[Page 267]]

or veteran-owned small business concerns; and
    (3) Mentor-Prot[eacute]g[eacute] Agreements approved by the VA 
Office of Small and Disadvantaged Business Utilization.
    (c) Mentor participation in the program means providing business 
developmental assistance to aid prot[eacute]g[eacute]s in developing the 
requisite expertise to effectively compete for and successfully perform 
VA prime contracts and subcontracts.
    (d) Large business prime contractors serving as mentors in the VA 
Mentor-Prot[eacute]g[eacute] Program are eligible for an incentive for 
subcontracting plan credit. VA will recognize the costs incurred by a 
mentor firm in providing assistance to a prot[eacute]g[eacute] firm and 
apply those costs for purposes of determining whether the mentor firm 
attains its subcontracting plan participation goals under a VA contract. 
The amount of credit given to a mentor firm for these 
prot[eacute]g[eacute] developmental assistance costs shall be calculated 
on a dollar-for-dollar basis and reported by the large business prime 
contractor via the Electronic Subcontracting Reporting System (eSRS).
    (e) Contractors interested in participating in the program are 
encouraged to contact the VA Office of Small and Disadvantaged Business 
Utilization for more information.

                             (End of clause)

[74 FR 64638, Dec. 8, 2009]



Sec. 852.219-72  Evaluation factor for participation in the VA mentor-
          prot[eacute]g[eacute] program.

    As prescribed in 819.7115(b), insert the following clause:

          Evaluation Factor for Participation in the VA Mentor-
                      Prot[eacute]g[eacute] Program

                                (DEC2009)

    This solicitation contains an evaluation factor or sub-factor 
regarding participation in the VA Mentor-Prot[eacute]g[eacute] Program. 
In order to receive credit under the evaluation factor or sub-factor, 
the offeror must provide with its proposal a copy of a signed letter 
issued by the VA Office of Small and Disadvantaged Business Utilization 
approving the offeror's Mentor-Prot[eacute]g[eacute] Agreement.

                             (End of clause)

[74 FR 64638, Dec. 8, 2009]



Sec.Sec. 852.222-70  Contract Work Hours and Safety Standards Act--
          nursing home care contract supplement.

    As prescribed in 822.305, for nursing home care requirements, insert 
the following clause:

Contract Work Hours and Safety Standards Act--Nursing Home Care Contract 
                          Supplement (JAN 2008)

    The following exemption to FAR clause 52.222-4, Contract Work Hours 
and Safety Standards Act--Overtime Compensation, applies to this 
contract: A contractor and subcontractor under this contract will not be 
required to pay overtime wages to their employees for work in excess of 
40 hours in any workweek, which would otherwise be a violation of the 
Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708), 
provided:
    (a) The contractor or subcontractor is primarily engaged in the care 
of nursing home patients residing on the contractor's or subcontractor's 
premises;
    (b) There is an agreement or understanding between the contractor or 
subcontractor and their employees, before performance of work, that a 
work period of 14 consecutive days is acceptable in lieu of a work 
period of 7 consecutive days for the purpose of overtime compensation;
    (c) Employees receive overtime compensation at a rate no less than 
1\1/2\ times the employees' regular hourly rate of pay for work in 
excess of 80 hours in any 14 day period; and
    (d) Pay is otherwise computed in accordance with the requirements of 
the Fair Labor Standards Act of 1938, as amended.

                             (End of clause)



Sec.Sec. 852.228-70  Bond premium adjustment.

    As prescribed in 828.106-70, insert the following clause:

                   Bond Premium Adjustment (JAN 2008)

    When net changes in original contract price affect the premium of a 
Corporate Surety Bond by $5 or more, the Government, in determining the 
basis for final settlement, will provide for bond premium adjustment 
computed at the rate shown in the bond.

                             (End of clause)



Sec.Sec. 852.228-71  Indemnification and insurance.

    As prescribed in 828.306, insert the following clause:

                Indemnification and Insurance (JAN 2008)

    (a) Indemnification. The contractor expressly agrees to indemnify 
and save the Government, its officers, agents, servants, and employees 
harmless from and against any and all claims, loss, damage, injury, and 
liability, however caused, resulting from, arising out of, or in any way 
connected with

[[Page 268]]

the performance of work under this agreement. Further, it is agreed that 
any negligence or alleged negligence of the Government, its officers, 
agents, servants, and employees, shall not be a bar to a claim for 
indemnification unless the act or omission of the Government, its 
officers, agents, servants, and employees is the sole, competent, and 
producing cause of such claims, loss, damage, injury, and liability. At 
the option of the contractor, and subject to the approval by the 
contracting officer of the sources, insurance coverage may be employed 
as guaranty of indemnification.
    (b) Insurance. Satisfactory insurance coverage is a condition 
precedent to award of a contract. In general, a successful bidder must 
present satisfactory evidence of full compliance with State and local 
requirements, or those below stipulated, whichever are the greater. More 
specifically, workers' compensation and employer's liability coverage 
will conform to applicable State law requirements for the service 
contemplated, whereas general liability and automobile liability of 
comprehensive type shall, in the absence of higher statutory minimums, 
be required in the amounts per vehicle used of not less than $200,000 
per person and $500,000 per occurrence for bodily injury and $20,000 per 
occurrence for property damage. State-approved sources of insurance 
coverage ordinarily will be deemed acceptable to the Department of 
Veterans Affairs installation, subject to timely certifications by such 
sources of the types and limits of the coverages afforded by the sources 
to the bidder. [Contracting Officer's Note: In those instances where 
airplane service is to be used, substitute the word ``aircraft'' for 
``automobile'' and ``vehicle'' and modify coverage to require aircraft 
public and passenger liability insurance of at least $200,000 per 
passenger and $500,000 per occurrence for bodily injury, other than 
passenger liability, and $200,000 per occurrence for property damage. 
Coverage for passenger liability bodily injury shall be at least 
$200,000 multiplied by the number of seats or passengers, whichever is 
greater.]

                             (End of clause)



Sec. 852.228-72  Assisting service-disabled veteran-owned and veteran-
          owned small businesses in obtaining bonds.

    As prescribed in 828.106-71, insert the following clause:

 Assisting Service-Disabled Veteran-Owned Small Businesses and Veteran-
                Owned Small Businesses in Obtaining Bonds

                                (DEC2009)

    Prime contractors are encouraged to assist service-disabled veteran-
owned and veteran-owned small business potential subcontractors in 
obtaining bonding, when required. Mentor firms are encouraged to assist 
prot[eacute]g[eacute] firms under VA's Mentor-Prot[eacute]g[eacute] 
Program in obtaining acceptable bid, payment, and performance bonds, 
when required, as a prime contractor under a solicitation or contract 
and in obtaining any required bonds under subcontracts.

[74 FR 64638, Dec. 8, 2009]



Sec.Sec. 852.229-70  Sales or use taxes.

    As prescribed in 829.302-70, insert the following provision:

                      Sales or Use Taxes (JAN 2008)

    This provision replaces paragraph (k) of Federal Acquisition 
Regulation clause 52.212-4, Contract Terms and Conditions--Commercial 
Items. The articles listed in this solicitation will be purchased from 
the personal funds of patients and prices submitted herein include any 
sales or use tax heretofore imposed by any State, or by any duly 
constituted taxing authority therein, having jurisdiction to levy such a 
tax, applicable to the material in this solicitation.

                             (End of clause)



Sec.Sec. 852.229-71  [Reserved]



Sec. 852.232-72  Electronic submission of payment requests.

    As prescribed in 832.7002-2, insert the following clause:

          Electronic Submission of Payment Requests (NOV 2012)

    (a) Definitions. As used in this clause--
    (1) Contract financing payment has the meaning given in FAR 32.001.
    (2) Designated agency office has the meaning given in 5 CFR 
1315.2(m).
    (3) Electronic form means an automated system transmitting 
information electronically according to the accepted electronic data 
transmission methods and formats identified in paragraph (c) of this 
clause. Facsimile, email, and scanned documents are not acceptable 
electronic forms for submission of payment requests.
    (4) Invoice payment has the meaning given in FAR 32.001.

[[Page 269]]

    (5) Payment request means any request for contract financing payment 
or invoice payment submitted by the contractor under this contract.
    (b) Electronic payment requests. Except as provided in paragraph (e) 
of this clause, the contractor shall submit payment requests in 
electronic form. Purchases paid with a Government-wide commercial 
purchase card are considered to be an electronic transaction for 
purposes of this rule, and therefore no additional electronic invoice 
submission is required.
    (c) Data transmission. A contractor must ensure that the data 
transmission method and format are through one of the following:
    (1) VA's Electronic Invoice Presentment and Payment System. (See Web 
site at http://www.fsc.va.gov/einvoice.asp.)
    (2) Any system that conforms to the X12 electronic data interchange 
(EDI) formats established by the Accredited Standards Center (ASC) and 
chartered by the American National Standards Institute (ANSI). The X12 
EDI Web site (http://www.x12.org) includes additional information on EDI 
810 and 811 formats.
    (d) Invoice requirements. Invoices shall comply with FAR 32.905.
    (e) Exceptions. If, based on one of the circumstances below, the 
contracting officer directs that payment requests be made by mail, the 
contractor shall submit payment requests by mail through the United 
States Postal Service to the designated agency office. Submission of 
payment requests by mail may be required for:
    (1) Awards made to foreign vendors for work performed outside the 
United States;
    (2) Classified contracts or purchases when electronic submission and 
processing of payment requests could compromise the safeguarding of 
classified or privacy information;
    (3) Contracts awarded by contracting officers in the conduct of 
emergency operations, such as responses to national emergencies;
    (4) Solicitations or contracts in which the designated agency office 
is a VA entity other than the VA Financial Services Center in Austin, 
Texas; or
    (5) Solicitations or contracts in which the VA designated agency 
office does not have electronic invoicing capability as described above.

                             (End of clause)

[77 FR 70709, Nov. 27, 2012]



Sec.Sec. 852.233-70  Protest content/alternative dispute resolution.

    As prescribed in 833.106, insert the following provision:

        Protest Content/Alternative Dispute Resolution (JAN 2008)

    (a) Any protest filed by an interested party shall:
    (1) Include the name, address, fax number, and telephone number of 
the protester;
    (2) Identify the solicitation and/or contract number;
    (3) Include an original signed by the protester or the protester's 
representative and at least one copy;
    (4) Set forth a detailed statement of the legal and factual grounds 
of the protest, including a description of resulting prejudice to the 
protester, and provide copies of relevant documents;
    (5) Specifically request a ruling of the individual upon whom the 
protest is served;
    (6) State the form of relief requested; and
    (7) Provide all information establishing the timeliness of the 
protest.
    (b) Failure to comply with the above may result in dismissal of the 
protest without further consideration.
    (c) Bidders/offerors and contracting officers are encouraged to use 
alternative dispute resolution (ADR) procedures to resolve protests at 
any stage in the protest process. If ADR is used, the Department of 
Veterans Affairs will not furnish any documentation in an ADR proceeding 
beyond what is allowed by the Federal Acquisition Regulation.

                           (End of provision)



Sec.Sec. 852.233-71  Alternate protest procedure.

    As prescribed in 833.106, insert the following provision:

                 Alternate Protest Procedure (JAN 1998)

    As an alternative to filing a protest with the contracting officer, 
an interested party may file a protest with the Deputy Assistant 
Secretary for Acquisition and Materiel Management, Acquisition 
Administration Team, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, or for solicitations issued by the Office of 
Construction and Facilities Management, the Director, Office of 
Construction and Facilities Management, 810 Vermont Avenue, NW., 
Washington, DC 20420. The protest will not be considered if the 
interested party has a protest on the same or similar issues pending 
with the contracting officer.

[[Page 270]]

                           (End of provision)



Sec.Sec. 852.236-70  [Reserved]



Sec.Sec. 852.236-71  Specifications and drawings for construction.

    As prescribed in 836.521, insert the following clause:

         Specifications and Drawings for Construction (JUL 2002)

    The clause entitled ``Specifications and Drawings for Construction'' 
in FAR 52.236-21 is supplemented as follows:
    (a) The contracting officer's interpretation of the drawings and 
specifications will be final, subject to the disputes clause.
    (b) Large scale drawings supersede small scale drawings.
    (c) Dimensions govern in all cases. Scaling of drawings may be done 
only for general location and general size of items.
    (d) Dimensions shown of existing work and all dimensions required 
for work that is to connect with existing work shall be verified by the 
contractor by actual measurement of the existing work. Any work at 
variance with that specified or shown in the drawings shall not be 
performed by the contractor until approved in writing by the contracting 
officer.

                             (End of clause)



Sec. 852.236-72  Performance of work by the contractor.

    As prescribed in 836.501, insert the following clause:

            Performance of Work by the Contractor (JUL 2002)

    The clause entitled ``Performance of Work by the Contractor'' in FAR 
52.236-1 is supplemented as follows:
    (a) Contract work accomplished on the site by laborers, mechanics, 
and foremen/forewomen on the contractor's payroll and under his/her 
direct supervision shall be included in establishing the percent of work 
to be performed by the contractor. Cost of material and equipment 
installed by such labor may be included. The work by the contractor's 
executive, supervisory and clerical forces shall be excluded in 
establishing compliance with the requirements of this clause.
    (b) The contractor shall submit, simultaneously with the schedule of 
costs required by the Payments Under Fixed-Price Construction Contracts 
clause of the contract, a statement designating the branch or branches 
of contract work to be performed with his/her forces. The approved 
schedule of costs will be used in determining the value of a branch or 
branches, or portions thereof, of the work for the purpose of this 
article.
    (c) If, during the progress of work hereunder, the contractor 
requests a change in the branch or branches of the work to be performed 
by his/her forces and the contracting officer determines it to be in the 
best interest of the Government, the contracting officer may, at his/her 
discretion, authorize a change in such branch or branches of said work. 
Nothing contained herein shall permit a reduction in the percentage of 
work to be performed by the contractor with his/her forces, it being 
expressly understood that this is a contract requirement without right 
or privilege of reduction.
    (d) In the event the contractor fails or refuses to meet the 
requirement of the FAR clause at 52.236-1, it is expressly agreed that 
the contract price will be reduced by 15 percent of the value of that 
portion of the percentage requirement that is accomplished by others. 
For the purpose of this clause, it is agreed that 15 percent is an 
acceptable estimate of the contractor's overhead and profit, or mark-up, 
on that portion of the work which the contractor fails or refuses to 
perform, with his/her own forces, in accordance with the FAR clause at 
52.236-1.

                             (End of clause)

    Alternate I (Date). For requirements which include Network Analysis 
System (NAS), substitute the following paragraphs (b) and (c) for 
paragraphs (b) and (c) of the basic clause:

    (b) The contractor shall submit, simultaneously with the cost per 
activity of the construction schedule required by Section 01310 or 
01311, NETWORK ANALYSIS SYSTEM, a responsibility code for all activities 
of the network for which the contractor's forces will perform the work. 
The cost of these activities will be used in determining the portions of 
the total contract work to be executed by the contractor's forces for 
the purpose of this article.
    (c) If, during progress of work hereunder, the contractor requests a 
change in activities of work to be performed by the contractor's forces 
and the contracting officer determines it to be in the best interest of 
the Government, the contracting officer may, at his or her discretion, 
authorize a change in such activities of said work.



Sec. 852.236-73  [Reserved]



Sec. 852.236-74  Inspection of construction.

    As prescribed in 846.312, insert the following clause:

                  Inspection of Construction (JUL 2002)

    The clause entitled ``Inspection of Construction'' in FAR 52.246-12 
is supplemented as follows:

[[Page 271]]

    (a) Inspection of materials and articles furnished under this 
contract will be made at the site by the resident engineer, unless 
otherwise provided for in the specifications.
    (b) Final inspection will not be made until the contract work is 
ready for beneficial use or occupancy. The contractor shall notify the 
contracting officer, through the resident engineer, fifteen (15) days 
prior to the date on which the work will be ready for final inspection.

                             (End of clause)



Sec. 852.236-75  [Reserved]



Sec. 852.236-76  Correspondence.

    As prescribed in 836.570, insert the following clause:

                        Correspondence (APR 1984)

    All correspondence relative to this contract shall bear the 
Specification Number, Project Number, Department of Veterans Affairs 
Contract Number, title of project and name of facility.

                             (End of clause)



Sec. 852.236-77  Reference to ``standards''.

    As prescribed in 836.571, insert the following clause:

                  Reference to ``Standards'' (JUL 2002)

    Any materials, equipment, or workmanship specified by references to 
number, symbol, or title of any specific Federal, Industry or Government 
Agency Standard Specification shall comply with all applicable 
provisions of such standard specifications, except as limited to type, 
class or grade, or modified in contract specifications. Reference to 
``Standards'' referred to in the contract specifications, except as 
modified, shall have full force and effect as though printed in detail 
in the specifications.

                             (End of clause)



Sec. 852.236-78  Government supervision.

    As prescribed in 836.572, insert the following clause:

                    Government Supervision (APR 1984)

    (a) The work will be under the direction of the Department of 
Veterans Affairs contracting officer, who may designate another VA 
employee to act as resident engineer at the construction site.
    (b) Except as provided below, the resident engineer's directions 
will not conflict with or change contract requirements.
    (c) Within the limits of any specific authority delegated by the 
contracting officer, the resident engineer may, by written direction, 
make changes in the work. The contractor shall be advised of the extent 
of such authority prior to execution of any work under the contract.

                             (End of clause)



Sec. 852.236-79  Daily report of workers and material.

    As prescribed in 836.573, insert the following clause:

             Daily Report of Workers and material (APR 1984)

    The contractor shall furnish to the resident engineer each day a 
consolidated report for the preceding work day in which is shown the 
number of laborers, mechanics, foremen/forewomen and pieces of heavy 
equipment used or employed by the contractor and subcontractors. The 
report shall bear the name of the firm, the branch of work that they 
perform, such as concrete, plastering, masonry, plumbing, sheet metal 
work, etc. The report shall give a breakdown of employees by crafts, 
location where employed, and work performed. The report shall also list 
materials delivered to the site on the date covered by the report.

                             (End of clause)



Sec. 852.236-80  Subcontracts and work coordination.

    As prescribed in 836.574, insert the following clause:

              Subcontracts and Work Coordination (APR 1984)

    (a) Nothing contained in this contract shall be construed as 
creating any contractual relationship between any subcontractor and the 
Government. Divisions or sections of specifications are not intended to 
control the contractor in dividing work among subcontractors, or to 
limit work performed by any trade.
    (b) The contractor shall be responsible to the Government for acts 
and omissions of his/her own employees, and of the subcontractors and 
their employees. The contractor shall also be responsible for 
coordination of the work of the trades, subcontractors, and material 
suppliers.
    (c) The Government or its representatives will not undertake to 
settle any differences between the contractor and subcontractors or 
between subcontractors.
    (d) The Government reserves the right to refuse to permit employment 
on the work or require dismissal from the work of any subcontractor who, 
by reason of previous unsatisfactory work on Department of Veterans 
Affairs projects or for any other reason, is

[[Page 272]]

considered by the contracting officer to be incompetent or otherwise 
objectionable.

                             (End of clause)

    Alternate I (JUL 2002). For new construction work with complex 
mechanical-electrical work, the following paragraph relating to work 
coordination may be substituted for paragraph (b) of the basic clause:

    (b) The contractor shall be responsible to the Government for acts 
and omissions of his/her own employees, and subcontractors and their 
employees. The contractor shall also be responsible for coordination of 
the work of the trades, subcontractors, and material suppliers. The 
contractor shall, in advance of the work, prepare coordination drawings 
showing the location of openings through slabs, the pipe sleeves and 
hanger inserts, as well as the location and elevation of utility lines, 
including, but not limited to, conveyor systems, pneumatic tubes, ducts, 
and conduits and pipes 2 inches and larger in diameter. These drawings, 
including plans, elevations, and sections as appropriate, shall clearly 
show the manner in which the utilities fit into the available space and 
relate to each other and to existing building elements. Drawings shall 
be of appropriate scale to satisfy the previously stated purposes, but 
not smaller than \3/8\-inch scale. Drawings may be composite (with 
distinctive colors for the various trades) or may be separate but fully 
coordinated drawings (such as sepias or photographic paper 
reproducibles) of the same scale. Separate drawings shall depict 
identical building areas or sections and shall be capable of being 
overlaid in any combination. The submitted drawings for a given area of 
the project shall show the work of all trades that will be involved in 
that particular area. Six complete composite drawings or six complete 
sets of separate reproducible drawings shall be received by the 
Government not less than 20 days prior to the scheduled start of the 
work in the area illustrated by the drawings, for the purpose of showing 
the contractor's planned methods of installation. The objectives of such 
drawings are to promote carefully planned work sequence and proper trade 
coordination, in order to assure the expeditious solutions of problems 
and the installation of lines and equipment as contemplated by the 
contract documents while avoiding or minimizing additional costs to the 
contractor and to the Government. In the event the contractor, in 
coordinating the various installations and in planning the method of 
installation, finds a conflict in location or elevation of any of the 
utilities with themselves, with structural items or with other 
construction items, he/she shall bring this conflict to the attention of 
the contracting officer immediately. In doing so, the contractor shall 
explain the proposed method of solving the problem or shall request 
instructions as to how to proceed if adjustments beyond those of usual 
trades coordination are necessary. Utilities installation work will not 
proceed in any area prior to the submission and completion of the 
Government review of the coordinated drawings for that area, nor in any 
area in which conflicts are disclosed by the coordination drawings, 
until the conflicts have been corrected to the satisfaction of the 
contracting officer. It is the responsibility of the contractor to 
submit the required drawings in a timely manner consistent with the 
requirements to complete the work covered by this contract within the 
prescribed contract time.



Sec. 852.236-81  [Reserved]



Sec. 852.236-82  Payments under fixed-price construction contracts 
          (without NAS).

    As prescribed in 832.111, insert the following clause in contracts 
that do not contain a section entitled ``Network Analysis System 
(NAS).''

      Payments Under Fixed-Price Construction Contracts (APR 1984)

    The clause entitled ``Payments Under Fixed-Price Construction 
Contracts'' in FAR 52.232-5 is implemented as follows:
    (a) Retainage:
    (1) The contracting officer may retain funds:
    (i) Where performance under the contract has been determined to be 
deficient or the contractor has performed in an unsatisfactory manner in 
the past; or
    (ii) As the contract nears completion, to ensure that deficiencies 
will be corrected and that completion is timely.
    (2) Examples of deficient performance justifying a retention of 
funds include, but are not restricted to, the following:
    (i) Unsatisfactory progress as determined by the contracting 
officer;
    (ii) Failure to meet schedule in Schedule of Work Progress;
    (iii) Failure to present submittals in a timely manner; or
    (iv) Failure to comply in good faith with approved subcontracting 
plans, certifications, or contract requirements.
    (3) Any level of retention shall not exceed 10 percent either where 
there is determined to be unsatisfactory performance, or when the 
retainage is to ensure satisfactory completion. Retained amounts shall 
be paid promptly upon completion of all contract requirements, but 
nothing contained in this subparagraph shall be construed as limiting 
the contracting officer's right to withhold funds under other provisions 
of the contract

[[Page 273]]

or in accordance with the general law and regulations regarding the 
administration of Government contracts.
    (b) The contractor shall submit a schedule of cost to the 
contracting officer for approval within 30 calendar days after date of 
receipt of notice to proceed. Such schedule will be signed and submitted 
in triplicate. The approved cost schedule will be one of the bases for 
determining progress payments to the contractor for work completed. This 
schedule shall show cost by the branches of work for each building or 
unit of the contract, as instructed by the resident engineer.
    (1) The branches shall be subdivided into as many sub-branches as 
are necessary to cover all component parts of the contract work.
    (2) Costs as shown on this schedule must be true costs and, should 
the resident engineer so desire, he/she may require the contractor to 
submit the original estimate sheets or other information to substantiate 
the detailed makeup of the schedule.
    (3) The sum of the sub-branches, as applied to each branch, shall 
equal the total cost of such branch. The total cost of all branches 
shall equal the contract price.
    (4) Insurance and similar items shall be prorated and included in 
the cost of each branch of the work.
    (5) The cost schedule shall include separate cost information for 
the systems listed in the table in this paragraph (b)(5). The 
percentages listed below are proportions of the cost listed in the 
contractor's cost schedule and identify, for payment purposes, the value 
of the work to adjust, correct and test systems after the material has 
been installed. Payment of the listed percentages will be made only 
after the contractor has demonstrated that each of the systems is 
substantially complete and operates as required by the contract.

            Value of Adjusting Correcting, and Testing System
------------------------------------------------------------------------
                            System                               Percent
------------------------------------------------------------------------
Pneumatic Tube System........................................         10
Incinerators (medical waste and trash).......................          5
Sewage treatment plant equipment.............................          5
Water treatment plant equipment..............................          5
Washers (dish, cage, glass, etc.)............................          5
Sterilizing equipment........................................          5
Water distilling equipment...................................          5
Prefab temperature rooms (cold, constant temperature)........          5
Entire air-conditioning system (Specified under 600 Sections)          5
Entire boiler plant system (Specified under 700 Sections)....          5
General supply conveyors.....................................         10
Food service conveyors.......................................         10
Pneumatic soiled linen and trash system......................         10
Elevators and dumbwaiters....................................         10
Materials transport system...................................         10
Engine-generator system......................................          5
Primary switchgear...........................................          5
Secondary switchgear.........................................          5
Fire alarm system............................................          5
Nurse call system............................................          5
Intercom system..............................................          5
Radio system.................................................          5
TV (entertainment) system....................................          5
------------------------------------------------------------------------

    (c) In addition to this cost schedule, the contractor shall submit 
such unit costs as may be specifically requested. The unit costs shall 
be those used by the contractor in preparing his/her bid and will not be 
binding as pertaining to any contract changes.
    (d) The contracting officer will consider for monthly progress 
payments material and/or equipment procured by the contractor and stored 
on the construction site, as space is available, or at a local approved 
location off the site, under such terms and conditions as such officer 
approves, including but not limited to the following:
    (1) The material or equipment is in accordance with the contract 
requirements and/or approved samples and shop drawings.
    (2) Only those materials and/or equipment as are approved by the 
resident engineer for storage will be included.
    (3) Such materials and/or equipment will be stored separately and 
will be readily available for inspection and inventory by the resident 
engineer.
    (4) Such materials and/or equipment will be protected against 
weather, theft and other hazards and will not be subjected to 
deterioration.
    (5) All of the other terms, provisions, conditions and covenants 
contained in the contract shall be and remain in full force and effect 
as therein provided.
    (6) A supplemental agreement will be executed between the Government 
and the contractor with the consent of the contractor's surety for off-
site storage.
    (e) The contractor, prior to receiving a progress or final payment 
under this contract, shall submit to the contracting officer a 
certification that the contractor has made payment from proceeds of 
prior payments, or that timely payment will be made from the proceeds of 
the progress or final payment then due, to subcontractors and suppliers 
in accordance with the contractual arrangements with them.
    (f) The Government reserves the right to withhold payment until 
samples, shop drawings, engineer's certificates, additional bonds, 
payrolls, weekly statements of compliance, proof of title, 
nondiscrimination compliance reports, or any other things required by 
this contract, have been submitted to the satisfaction of the 
contracting officer.

[[Page 274]]

                             (End of clause)

    Alternate I (JUL 2002). If the specifications include guarantee 
period services, the contracting officer shall include the following 
paragraphs as additions to paragraph (b) of the basic clause:

    (6)(i) The contractor shall at the time of contract award furnish 
the total cost of the guarantee period services in accordance with 
specification section(s) covering guarantee period services. The 
contractor shall submit, within 15 calendar days of receipt of the 
notice to proceed, a guarantee period performance program that shall 
include an itemized accounting of the number of work-hours required to 
perform the guarantee period service on each piece of equipment. The 
contractor shall also submit the established salary costs, including 
employee fringe benefits, and what the contractor reasonably expects to 
pay over the guarantee period, all of which will be subject to the 
contracting officer's approval.
    (ii) The cost of the guarantee period service shall be prorated on 
an annual basis and paid in equal monthly payments by VA during the 
period of guarantee. In the event the installer does not perform 
satisfactorily during this period, all payments may be withheld and the 
contracting officer shall inform the contractor of the unsatisfactory 
performance, allowing the contractor 10 days to correct deficiencies and 
comply with the contract. The guarantee period service is subject to 
those provisions as set forth in the Payments and Default clauses.



Sec. 852.236-83  Payments under fixed-price construction contracts 
          (including NAS).

    As prescribed in 832.111, insert the following clause in contracts 
that contain a section entitled ``Network Analysis System (NAS).''

      Payments Under Fixed-Price Construction Contracts (JUL 2002)

    The clause entitled ``Payments Under Fixed-Price Construction 
Contracts'' in FAR 52.232-5 is implemented as follows:
    (a) Retainage:
    (1) The contracting officer may retain funds:
    (i) Where the performance under the contract has been determined to 
be deficient or the contractor has performed in an unsatisfactory manner 
in the past; or
    (ii) As the contract nears completion, to ensure that deficiencies 
will be corrected and that completion is timely.
    (2) Examples of deficient performance justifying a retention of 
funds include, but are not restricted to, the following:
    (i) Unsatisfactory progress as determined by the contracting 
officer;
    (ii) Failure either to meet schedules in Section Network Analysis 
System (NAS), or to process the Interim Arrow Diagram/Complete Project 
Arrow Diagram;
    (iii) Failure to present submittals in a timely manner; or
    (iv) Failure to comply in good faith with approved subcontracting 
plans, certifications, or contract requirements.
    (3) Any level of retention shall not exceed 10 percent either where 
there is determined to be unsatisfactory performance, or when the 
retainage is to ensure satisfactory completion. Retained amounts shall 
be paid promptly upon completion of all contract requirements, but 
nothing contained in this subparagraph shall be construed as limiting 
the contracting officer's right to withhold funds under other provisions 
of the contract or in accordance with the general law and regulations 
regarding the administration of Government contracts.
    (b) The contractor shall submit a schedule of costs in accordance 
with the requirements of Section Network Analysis System (NAS) to the 
contracting officer for approval within 90 calendar days after date of 
receipt of notice to proceed. The approved cost schedule will be one of 
the bases for determining progress payments to the contractor for work 
completed.
    (1) Costs as shown on this schedule must be true costs and, should 
the resident engineer so desire, he/she may require the contractor to 
submit his/her original estimate sheets or other information to 
substantiate the detailed makeup of the cost schedule.
    (2) The total costs of all activities shall equal the contract 
price.
    (3) Insurance and similar items shall be prorated and included in 
each activity cost of the critical path method (CPM) network.
    (4) The CPM network shall include a separate cost loaded activity 
for adjusting and testing of the systems listed in the table in 
paragraph (b)(5) of this section. The percentages listed below will be 
used to determine the cost of adjust and test activities and identify, 
for payment purposes, the value of the work to adjust, correct and test 
systems after the material has been installed.
    (5) Payment for adjust and test activities will be made only after 
the contractor has demonstrated that each of the systems is 
substantially complete and operates as required by the contract.

           Value of Adjusting, Correcting, and Testing System
------------------------------------------------------------------------
                            System                              Percent
------------------------------------------------------------------------
Pneumatic tube system........................................         10
Incinerators (medical waste and trash).......................          5
Sewage treatment plant equipment.............................          5
Water treatment plant equipment..............................          5

[[Page 275]]

 
Washers (dish, cage, glass, etc.)............................          5
Sterilizing equipment........................................          5
Water distilling equipment...................................          5
Prefab temperature rooms (cold, constant temperature)........          5
Entire air-conditioning system (Specified under 600 Sections)          5
Entire boiler plant system (Specified under 700 Sections)....          5
General supply conveyors.....................................         10
Food service conveyors.......................................         10
Pneumatic soiled linen and trash system......................         10
Elevators and dumbwaiters....................................         10
Materials transport system...................................         10
Engine-generator system......................................          5
Primary switchgear...........................................          5
Secondary switchgear.........................................          5
Fire alarm system............................................          5
Nurse call system............................................          5
Intercom system..............................................          5
Radio system.................................................          5
TV (entertainment) system....................................          5
------------------------------------------------------------------------

    (c) In addition to this cost schedule, the contractor shall submit 
such unit costs as may be specifically requested. The unit costs shall 
be those used by the contractor in preparing his/her bid and will not be 
binding as pertaining to any contract changes.
    (d) The contracting officer will consider for monthly progress 
payments material and/or equipment procured by the contractor and stored 
on the construction site, as space is available, or at a local approved 
location off the site, under such terms and conditions as such officer 
approves, including but not limited to the following:
    (1) The material or equipment is in accordance with the contract 
requirements and/or approved samples and shop drawings.
    (2) Only those materials and/or equipment as are approved by the 
resident engineer for storage will be included.
    (3) Such materials and/or equipment will be stored separately and 
will be readily available for inspection and inventory by the resident 
engineer.
    (4) Such materials and/or equipment will be protected against 
weather, theft and other hazards and will not be subjected to 
deterioration.
    (5) All of the other terms, provisions, conditions and covenants 
contained in the contract shall be and remain in full force and effect 
as therein provided.
    (6) A supplemental agreement will be executed between the Government 
and the contractor with the consent of the contractor's surety for off-
site storage.
    (e) The contractor, prior to receiving a progress or final payment 
under this contract, shall submit to the contracting officer a 
certification that the contractor has made payment from proceeds of 
prior payments, or that timely payment will be made from the proceeds of 
the progress or final payment then due, to subcontractors and suppliers 
in accordance with the contractual arrangements with them.
    (f) The Government reserves the right to withhold payment until 
samples, shop drawings, engineer's certificates, additional bonds, 
payrolls, weekly statements of compliance, proof of title, 
nondiscrimination compliance reports, or any other things required by 
this contract, have been submitted to the satisfaction of the 
contracting officer.

                             (End of clause)

    Alternate I (JUL 2002). If the specifications include guarantee 
period services, the contracting officer shall include the following 
paragraphs as additions to paragraph (b) of the basic clause:

    (6)(i) The contractor shall show on the critical path method (CPM) 
network the total cost of the guarantee period services in accordance 
with the guarantee period service section(s) of the specifications. This 
cost shall be priced out when submitting the CMP cost loaded network. 
The cost submitted shall be subject to the approval of the contracting 
officer. The activity on the CPM shall have money only and not activity 
time.
    (ii) The contractor shall submit with the CPM a guarantee period 
performance program which shall include an itemized accounting of the 
number of work-hours required to perform the guarantee period service on 
each piece of equipment. The contractor shall also submit the 
established salary costs, including employee fringe benefits, and what 
the contractor reasonably expects to pay over the guarantee period, all 
of which will be subject to the contracting officer's approval.
    (iii) The cost of the guarantee period service shall be prorated on 
an annual basis and paid in equal monthly payments by VA during the 
period of guarantee. In the event the installer does not perform 
satisfactorily during this period, all payments may be withheld and the 
contracting officer shall inform the contractor of the unsatisfactory 
performance, allowing the contractor 10 days to correct and comply with 
the contract. The guarantee period service is subject to those 
provisions as set forth in the Payments and Default clauses.



Sec. 852.236-84  Schedule of work progress.

    As prescribed in 836.575, insert the following clause:

                  Schedule of Work Progress (NOV 1984)

    (a) The contractor shall submit with the schedule of costs, a 
progress schedule that indicates the anticipated installation of

[[Page 276]]

work versus the elapsed contract time, for the approval of the 
contracting officer. The progress schedule time shall be represented in 
the form of a bar graph with the contract time plotted along the 
horizontal axis. The starting date of the schedule shall be the date the 
contractor receives the ``Notice to Proceed.'' The ending date shall be 
the original contract completion date. At a minimum, both dates shall be 
indicated on the progress schedule. The specific item of work, i.e., 
``Excavation'', ``Floor Tile'', ``Finish Carpentry'', etc., should be 
plotted along the vertical axis and indicated by a line or bar at which 
time(s) during the contract this work is scheduled to take place. The 
schedule shall be submitted in triplicate and signed by the contractor.
    (b) The actual percent completion will be based on the value of 
installed work divided by the current contract amount. The actual 
completion percentage will be indicated on the monthly progress report.
    (c) The progress schedule will be revised when individual or 
cumulative time extensions of 15 calendar days or more are granted for 
any reason. The revised schedule should indicate the new contract 
completion date and should reflect any changes to the installation 
time(s) of the items of work affected.
    (d) The revised progress schedule will be used for reporting future 
scheduled percentage completion.

                             (End of clause)



Sec. 852.236-85  Supplementary labor standards provisions.

    As prescribed in 836.576, insert the following clause:

           Supplementary Labor Standards Provisions (APR 1984)

    (a) The wage determination decision of the Secretary of Labor is set 
forth in section GR, General Requirements, of this contract. It is the 
result of a study of wage conditions in the locality and establishes the 
minimum hourly rates of wages and fringe benefits for the described 
classes of labor in accordance with applicable law. No increase in the 
contract price will be allowed or authorized because of payment of wage 
rates in excess of those listed.
    (b) The contractor shall submit the required copies of payrolls to 
the contracting officer through the resident engineer or engineer 
officer, when acting in that capacity. Department of Labor Form WH-347, 
Payroll, available from the Superintendent of Documents, Government 
Printing Office, Washington, DC 20402, may be used for this purpose. If, 
however, the contractor or subcontractor elects to use an individually 
composed payroll form, it shall contain the same information shown on 
Form WH-347, and in addition be accompanied by Department of Labor Form 
WH-348, Statement of Compliance, or any other form containing the exact 
wording of this form.

                             (End of clause)



Sec. 852.236-86  Workers' compensation.

    As prescribed in 836.577, insert the following clause:

                    Workers' Compensation (JAN 2008)

    Public Law 107-217 (40 U.S.C. 3172) authorizes the constituted 
authority of States to apply their workers compensation laws to all 
lands and premises owned or held by the United States.

                             (End of clause)



Sec. 852.236-87  Accident prevention.

    As prescribed in 836.513, insert the following clause:

                     Accident Prevention (SEP 1993)

    The Resident Engineer on all assigned construction projects, or 
other Department of Veterans Affairs employee if designated in writing 
by the Contracting Officer, shall serve as Safety Officer and as such 
has authority, on behalf of the Contracting Officer, to monitor and 
enforce Contractor compliance with FAR 52.236-13, Accident Prevention. 
However, only the Contracting Officer may issue an order to stop all or 
part of the work while requiring satisfactory or corrective action to be 
taken by the Contractor.

                             (End of clause)



Sec. 852.236-88  Contract changes--supplement.

    As prescribed in 836.578, insert the following clause:

                 Contract Changes--Supplement (JUL 2002)

    The clauses entitled ``Changes'' in FAR 52.243-4 and ``Differing 
Site Conditions'' in FAR 52.236-2 are supplemented as follows:
    (a) Paragraphs (a)(1) through (a)(4) apply to proposed contract 
changes costing over $500,000.
    (1) When requested by the contracting officer, the contractor shall 
submit proposals for changes in work to the resident engineer. 
Proposals, to be submitted as expeditiously as possible but within 30 
calendar days after receipt of request, shall be in legible form, 
original and two copies, with an itemized breakdown that will include 
material, quantities, unit prices, labor costs (separated into trades), 
construction equipment, etc. (Labor

[[Page 277]]

costs are to be identified with specific material placed or operation 
performed.) The contractor must obtain and furnish with a proposal an 
itemized breakdown as described above, signed by each subcontractor 
participating in the change regardless of tier. When certified cost or 
pricing data are required under FAR Subpart 15.403, the cost or pricing 
data shall be submitted in accordance with FAR 15.403-5.
    (2) When the necessity to proceed with a change does not allow 
sufficient time to negotiate a modification or because of failure to 
reach an agreement, the contracting officer may issue a change order 
instructing the contractor to proceed on the basis of a tentative price 
based on the best estimate available at the time, with the firm price to 
be determined later. Furthermore, when the change order is issued, the 
contractor shall submit a proposal, which includes the information 
required by paragraph (a)(1), for cost of changes in work within 30 
calendar days.
    (3) The contracting officer will consider issuing a settlement by 
determination to the contract if the contractor's proposal required by 
paragraphs (a)(1) or (a)(2) of this clause is not received within 30 
calendar days or if agreement has not been reached.
    (4) Bond premium adjustment, consequent upon changes ordered, will 
be made as elsewhere specified at the time of final settlement under the 
contract and will not be included in the individual change.
    (b) Paragraphs (b)(1) through (b)(11) apply to proposed contract 
changes costing $500,000 or less:
    (1) When requested by the contracting officer, the contractor shall 
submit proposals for changes in work to the resident engineer. 
Proposals, to be submitted as expeditiously as possible but within 30 
calendar days after receipt of request, shall be in legible form, 
original and two copies, with an itemized breakdown that will include 
material, quantities, unit prices, labor costs (separated into trades), 
construction equipment, etc. (Labor costs are to be identified with 
specific material placed or operation performed.) The contractor must 
obtain and furnish with a proposal an itemized breakdown as described 
above, signed by each subcontractor participating in the change 
regardless of tier. When certified cost or pricing data or information 
other than cost or pricing data are required under FAR 15.403, the data 
shall be submitted in accordance with FAR 15.403-5. No itemized 
breakdown will be required for proposals amounting to less than $1,000.
    (2) When the necessity to proceed with a change does not allow 
sufficient time to negotiate a modification or because of failure to 
reach an agreement, the contracting officer may issue a change order 
instructing the contractor to proceed on the basis of a tentative price 
based on the best estimate available at the time, with the firm price to 
be determined later. Furthermore, when the change order is issued, the 
contractor shall submit within 30 calendar days, a proposal that 
includes the information required by paragraph (b)(1) for the cost of 
the changes in work.
    (3) The contracting officer will consider issuing a settlement by 
determination to the contract if the contractor's proposal required by 
paragraphs (b)(1) or (b)(2) of this clause is not received within 30 
calendar days, or if agreement has not been reached.
    (4) Allowances not to exceed 10 percent each for overhead and profit 
for the party performing the work will be based on the value of labor, 
material, and use of construction equipment required to accomplish the 
change. As the value of the change increases, a declining scale will be 
used in negotiating the percentage of overhead and profit. Allowable 
percentages on changes will not exceed the following: 10 percent 
overhead and 10 percent profit on the first $20,000; 7-1/2 percent 
overhead and 7-1/2 percent profit on the next $30,000; 5 percent 
overhead and 5 percent profit on balance over $50,000. Profit shall be 
computed by multiplying the profit percentage by the sum of the direct 
costs and computed overhead costs.
    (5) The prime contractor's or upper-tier subcontractor's fee on work 
performed by lower-tier subcontractors will be based on the net 
increased cost to the prime contractor or upper-tier subcontractor, as 
applicable. Allowable fee on changes will not exceed the following: 10 
percent fee on the first $20,000; 7-1/2 percent fee on the next $30,000; 
and 5 percent fee on balance over $50,000.
    (6) Not more than four percentages, none of which exceed the 
percentages shown above, will be allowed regardless of the number of 
tiers of subcontractors.
    (7) Where the contractor's or subcontractor's portion of a change 
involves credit items, such items must be deducted prior to adding 
overhead and profit for the party performing the work. The contractor's 
fee is limited to the net increase to contractor of subcontractors' 
portions cost computed in accordance herewith.
    (8) Where a change involves credit items only, a proper measure of 
the amount of downward adjustment in the contract price is the 
reasonable cost to the contractor if he/she had performed the deleted 
work. A reasonable allowance for overhead and profit are properly 
includable as part of the downward adjustment for a deductive change. 
The amount of such allowance is subject to negotiation.
    (9) Cost of Federal Old Age Benefit (Social Security) tax and of 
Worker's Compensation and Public Liability insurance appertaining to 
changes are allowable. While no percentage will be allowed thereon for 
overhead or profit, prime contractor's fee will be allowed on such items 
in subcontractors' proposals.

[[Page 278]]

    (10) Overhead and contractor's fee percentages shall be considered 
to include insurance other than mentioned herein, field and office 
supervisors and assistants, security police, use of small tools, 
incidental job burdens, and general home office expenses and no separate 
allowance will be made therefore. Assistants to office supervisors 
include all clerical, stenographic and general office help. Incidental 
job burdens include, but are not necessarily limited to, office 
equipment and supplies, temporary toilets, telephone and conformance to 
OSHA requirements. Items such as, but not necessarily limited to, review 
and coordination, estimating and expediting relative to contract changes 
are associated with field and office supervision and are considered to 
be included in the contractor's overhead and/or fee percentage.
    (11) Bond premium adjustment, consequent upon changes ordered, will 
be made as elsewhere specified at the time of final settlement under the 
contract and will not be included in the individual change.

                             (End of clause)



Sec. 852.236-89  Buy American Act.

    As prescribed in Table 825.1102, insert the following clause:

                       Buy American Act (JAN 2008)

    (a) Reference is made to the clause entitled ``Buy American Act--
Construction Materials,'' FAR 52.225-9.
    (b) Notwithstanding a bidder's right to offer identifiable foreign 
construction material in its bid pursuant to FAR 52.225-9, VA does not 
anticipate accepting an offer that includes foreign construction 
material.
    (c) If a bidder chooses to submit a bid that includes foreign 
construction material, that bidder must provide a listing of the 
specific foreign construction material he/she intends to use and a price 
for said material. Bidders must include bid prices for comparable 
domestic construction material. If VA determines not to accept foreign 
construction material and no comparable domestic construction material 
is provided, the entire bid will be rejected.
    (d) Any foreign construction material proposed after award will be 
rejected unless the bidder proves to VA's satisfaction: (1) it was 
impossible to request the exemption prior to award, and (2) said 
domestic construction material is no longer available, or (3) where the 
price has escalated so dramatically after the contract has been awarded 
that it would be unconscionable to require performance at that price. 
The determinations required by (1), (2), and (3) of this paragraph shall 
be made in accordance with Subpart 825.2 and FAR 25.2.
    (e) By signing this bid, the bidder declares that all articles, 
materials and supplies for use on the project shall be domestic unless 
specifically set forth on the Bid Form or addendum thereto.

                             (End of clause)

    Alternate I (JAN 2008). As prescribed in Table 825.1102, substitute 
the following paragraphs for paragraphs (a) and (b) of the basic clause:

    (a) Reference is made to the clause entitled ``Buy American Act--
Construction Materials under Trade Agreements,'' FAR 52.225-11.
    (b) The restrictions contained in this clause 852.236-89 are waived 
for designated country construction material as defined in FAR 52.225-
11. Notwithstanding a bidder's right to offer identifiable foreign 
construction material in its bid pursuant to FAR 52.225-11, VA does not 
anticipate accepting an offer that includes foreign construction 
material, other than designated country construction material.

    Alternate II (JAN 2008). As prescribed in Table 825.1102, substitute 
the following paragraphs for paragraphs (a) and (b) of the basic clause:

    (a) Reference is made to the clause entitled ``Buy American Act--
Construction Materials under Trade Agreements,'' FAR 52.225-11 and its 
Alternate I.
    (b) The restrictions contained in this clause 852.236-89 are waived 
for World Trade Organization (WTO) Government Procurement Agreement 
(GPA) country, Australian, Chilean, or Moroccan, least developed 
country, or Caribbean Basin country construction material, as defined in 
FAR 52.225-11 and its Alternate I. Notwithstanding a bidder's right to 
offer identifiable foreign construction material in its bid pursuant to 
FAR 52.225-11, VA does not anticipate accepting an offer that includes 
foreign construction material, other than WTO GPA country, Australian, 
Chilean, or Moroccan, least developed country, or Caribbean Basin 
country construction material.



Sec. 852.236-90  Restriction on submission and use of equal products.

    As prescribed in 836.202(c), the following clause shall be included 
in the solicitation if it is determined that only one product will meet 
the Government's minimum needs and the Department of Veterans Affairs 
will not allow the submission of ``equal'' products:

     Restriction on Submission and Use of Equal Products (NOV 1986)

    The clause applies to the following items:
________________________________________________________________________
________________________________________________________________________

[[Page 279]]

________________________________________________________________________

Notwithstanding the ``Material and Workmanship'' clause of this 
contract, FAR 52.236-5(a), nor any other contractual provision, 
``equal'' products will not be considered by the Department of Veterans 
Affairs and may not be used.

                             (End of clause)



Sec. 852.236-91  Special notes.

    As prescribed in 836.579, insert the following clause:

                        Special Notes (JUL 2002)

    (a) Signing of the bid shall be deemed to be a representation by the 
bidder that:
    (1) Bidder is a construction contractor who owns, operates, or 
maintains a place of business, regularly engaged in construction, 
alteration, or repair of buildings, structures, and communications 
facilities, or other engineering projects, including furnishing and 
installing of necessary equipment; or
    (2) If newly entering into a construction activity, bidder has made 
all necessary arrangements for personnel, construction equipment, and 
required licenses to perform construction work; and
    (3) Upon request, prior to award, bidder will promptly furnish to 
the Government a statement of facts in detail as to bidder's previous 
experience (including recent and current contracts), organization 
(including company officers), technical qualifications, financial 
resources and facilities available to perform the contemplated work.
    (b) Unless otherwise provided in this contract, where the use of 
optional materials or construction is permitted, the same standard of 
workmanship, fabrication and installation shall be required irrespective 
of which option is selected. The contractor shall make any change or 
adjustment in connecting work or otherwise necessitated by the use of 
such optional material or construction, without additional cost to the 
Government.
    (c) When approval is given for a system component having functional 
or physical characteristics different from those indicated or specified, 
it is the responsibility of the contractor to furnish and install 
related components with characteristics and capacities compatible with 
the approved substitute component as required for systems to function as 
noted on drawings and specifications. There shall be no additional cost 
to the Government.
    (d) In some instances it may have been impracticable to detail all 
items in specifications or on drawings because of variances in 
manufacturers' methods of achieving specified results. In such instances 
the contractor will be required to furnish all labor, materials, 
drawings, services and connections necessary to produce systems or 
equipment which are completely installed, functional, and ready for 
operation by facility personnel in accordance with their intended use.
    (e) Claims by the contractor for delay attributed to unusually 
severe weather must be supported by climatological data covering the 
period and the same period for the 10 preceding years. When the weather 
in question exceeds in intensity or frequency the 10-year average, the 
excess experienced shall be considered ``unusually severe.'' Comparison 
shall be on a monthly basis. Whether or not unusually severe weather in 
fact delays the work will depend upon the effect of weather on the 
branches of work being performed during the time under consideration.

                             (End of clause)



Sec. 852.237-7  Indemnification and medical liability insurance.

    As prescribed in 837.403, insert the following clause:

       Indemnification and Medical Liability Insurance (JAN 2008)

    (a) It is expressly agreed and understood that this is a non-
personal services contract, as defined in Federal Acquisition Regulation 
(FAR) 37.101, under which the professional services rendered by the 
Contractor or its health-care providers are rendered in its capacity as 
an independent contractor. The Government may evaluate the quality of 
professional and administrative services provided but retains no control 
over professional aspects of the services rendered, including by 
example, the Contractor's or its health-care providers' professional 
medical judgment, diagnosis, or specific medical treatments. The 
Contractor and its health-care providers shall be liable for their 
liability-producing acts or omissions. The Contractor shall maintain or 
require all health-care providers performing under this contract to 
maintain, during the term of this contract, professional liability 
insurance issued by a responsible insurance carrier of not less than the 
following amount(s) per specialty per occurrence: [Contracting Officer's 
Note: Insert the dollar amount value(s) of standard coverage(s) 
prevailing within the local community as to the specific medical 
specialty, or specialties, concerned, or such higher amount as the 
Contracting Officer deems necessary to protect the Government's 
interests.] However, if the Contractor is an entity or a subdivision of 
a State that either provides for self-insurance or limits the liability 
or the amount of insurance purchased by State entities, then the 
insurance requirement of this contract shall be fulfilled by 
incorporating the provisions of the applicable State law.
    (b) An apparently successful offeror, upon request of the 
Contracting Officer, shall,

[[Page 280]]

prior to contract award, furnish evidence of the insurability of the 
offeror and/or of all health-care providers who will perform under this 
contract. The submission shall provide evidence of insurability 
concerning the medical liability insurance required by paragraph (a) of 
this clause or the provisions of State law as to self-insurance, or 
limitations on liability or insurance.
    (c) The Contractor shall, prior to commencement of services under 
the contract, provide to the Contracting Officer Certificates of 
Insurance or insurance policies evidencing the required insurance 
coverage and an endorsement stating that any cancellation or material 
change adversely affecting the Government's interest shall not be 
effective until 30 days after the insurer or the Contractor gives 
written notice to the Contracting Officer. Certificates or policies 
shall be provided for the Contractor and/or each health-care provider 
who will perform under this contract.
    (d) The Contractor shall notify the Contracting Officer if it, or 
any of the health-care providers performing under this contract, change 
insurance providers during the performance period of this contract. The 
notification shall provide evidence that the Contractor and/or health-
care providers will meet all the requirements of this clause, including 
those concerning liability insurance and endorsements. These 
requirements may be met either under the new policy, or a combination of 
old and new policies, if applicable.
    (e) The Contractor shall insert the substance of this clause, 
including this paragraph (e), in all subcontracts for health-care 
services under this contract. The Contractor shall be responsible for 
compliance by any subcontractor or lower-tier subcontractor with the 
provisions set forth in paragraph (a) of this clause.

                             (End of clause)



Sec. 852.237-70  Contractor responsibilities.

    As prescribed in 837.110, insert the following clause:

                 Contractor Responsibilities (APR 1984)

    The contractor shall obtain all necessary licenses and/or permits 
required to perform this work. He/she shall take all reasonable 
precautions necessary to protect persons and property from injury or 
damage during the performance of this contract. He/she shall be 
responsible for any injury to himself/herself, his/her employees, as 
well as for any damage to personal or public property that occurs during 
the performance of this contract that is caused by his/her employees 
fault or negligence, and shall maintain personal liability and property 
damage insurance having coverage for a limit as required by the laws of 
the State of [ ]. Further, it is agreed that any negligence of the 
Government, its officers, agents, servants and employees, shall not be 
the responsibility of the contractor hereunder with the regard to any 
claims, loss, damage, injury, and liability resulting there from.

                             (End of clause)



Sec. 852.246-70  Guarantee.

    As prescribed in 846.302-70, insert the following clause:

                          Guarantee (JAN 2008)

    The contractor guarantees the equipment against defective material, 
workmanship and performance for a period of [ ] \1\, said guarantee to 
run from date of acceptance of the equipment by the Government. The 
contractor agrees to furnish, without cost to the Government, 
replacement of all parts and material that are found to be defective 
during the guarantee period. Replacement of material and parts will be 
furnished to the Government at the point of installation, if 
installation is within the continental United States, or f.o.b. the 
continental U.S. port to be designated by the contracting officer if 
installation is outside of the continental United States. Cost of 
installation of replacement material and parts shall be borne by the 
contractor. \2\

                             (End of clause)
---------------------------------------------------------------------------

    \1\ Normally, insert one year. If industry policy covers a shorter 
or longer period, i.e., 90 days or for the life of the equipment, insert 
such period.
    \2\ The above clause will be modified to conform to standards of the 
industry involved.
---------------------------------------------------------------------------



Sec. 852.246-71  Inspection.

    As prescribed in 846.302-71(a), insert the following clause:

                          Inspection (JAN 2008)

    Rejected goods will be held subject to contractors order for not 
more than 15 days, after which the rejected merchandise will be returned 
to the contractor's address at his/her risk and expense. Expenses 
incident to the examination and testing of materials or supplies that 
have been rejected will be charged to the contractor's account.

                             (End of clause)

    Alternate I (JAN 2008). As provided in 846.302-71(b), insert the 
following clause:

[[Page 281]]

                          Inspection (JAN 2008)

    The contractor shall remove rejected supplies within 48 hours after 
notice of rejection. Supplies determined to be unfit for human 
consumption will not be removed without permission of the local health 
authorities. Supplies not removed within the allowed time may be 
destroyed. The Department of Veterans Affairs will not be responsible 
for nor pay for products rejected. The contractor will be liable for 
costs incident to examination of rejected products.

                             (End of clause)



Sec. 852.246-72  Frozen processed foods.

    As prescribed in 846.302-72, insert the following clause:

                    Frozen Processed Foods (JAN 2008)

    The products delivered under this contract shall be in excellent 
condition, shall not show evidence of defrosting, refreezing, or freezer 
burn and shall be transported and delivered to the consignee at a 
temperature of 0 degrees Fahrenheit or lower.

                             (End of clause)



Sec. 852.246-73  Noncompliance with packaging, packing, and/or marking 
          requirements.

    As prescribed in 846.302-73, insert the following clause:

 Noncompliance With Packaging, Packing and/or Marking Requirements (JAN 
                                  2008)

    Failure to comply with the packaging, packing and/or marking 
requirements indicated herein, or incorporated herein by reference, may 
result in rejection of the merchandise and request for replacement or 
repackaging, repacking, and/or marking. The Government reserves the 
right, without obtaining authority from the contractor, to perform the 
required repackaging, repacking, and/or marking services and charge the 
contractor at the actual cost to the Government for the same or have the 
required repackaging, repacking, and/or marking services performed 
commercially under Government order and charge the contractor at the 
invoice rate. In connection with any discount offered, time will be 
computed from the date of completion of such repackaging, repacking and/
or marking services.

                             (End of clause)



Sec. 852.246-74  Special warranties.

    As prescribed in 846.710-70, insert the following clause:

                      Special Warranties (JAN 2008)

    The clause entitled ``Warranty of Construction'' in FAR 52.246-21 is 
supplemented as follows:
    Any special warranties that may be required under the contract shall 
be subject to the elections set forth in the FAR clause at 52.246-21, 
Warranty of Construction, unless otherwise provided for in such special 
warranties.

                             (End of clause)



Sec. 852.246-75  Warranty for construction--guarantee period services.

    As prescribed in 846.710-71, insert the following clause:

     Warranty for Construction--Guarantee Period Services (JAN 2008)

    The clause entitled ``Warranty of Construction'' in FAR 52.246-21 is 
supplemented as follows:
    Should the contractor fail to prosecute the work or fail to proceed 
promptly to provide guarantee period services after notification by the 
contracting officer, the Government may, subject to the default clause 
contained at FAR 52.249-10, Default (Fixed-Price Construction), and 
after allowing the contractor 10 days to correct and comply with the 
contract, terminate the right to proceed with the work (or the separable 
part of the work) that has been delayed or unsatisfactorily performed. 
In this event, the Government may take over the work and complete it by 
contract or otherwise, and may take possession of and use any materials, 
appliances, and plant on the work site necessary for completing the 
work. The contractor and its sureties shall be liable for any damages to 
the Government resulting from the contractor's refusal or failure to 
complete the work within this specified time, whether or not the 
contractor's right to proceed with the work is terminated. This 
liability includes any increased costs incurred by the Government in 
completing the work.

                             (End of clause)



Sec. 852.247-70  Determining transportation costs for bid evaluation.

    As prescribed in 847.305-70, insert the following provision:

     Determining Transportation Costs for Bid Evaluation (APR 1984)

    For the purpose of evaluating bids and for no other purpose, the 
delivered price per unit will be determined by adding the nationwide 
average transportation charge to the f.o.b. origin bid prices. The 
nationwide average transportation charge will be determined by applying 
the following formula: Multiply the

[[Page 282]]

guaranteed shipping weight by the freight, parcel post, or express rate, 
whichever is proper, to each destination shown below and then multiply 
the resulting transportation charges by the anticipated demand factor 
shown for each destination. Total the resulting weighted transportation 
charges for all destinations and divide the total by 20 to give the 
nationwide average transportation charge.

                           Anticipated Demand
------------------------------------------------------------------------
                       Area destination                          Factor
------------------------------------------------------------------------
Oakland, California..........................................          3
Dallas, Texas................................................          2
Omaha, Nebraska..............................................          3
Fort Wayne, Indiana..........................................          4
Atlanta, Georgia.............................................          3
New York, New York...........................................          5
    Total of factors.........................................         20
------------------------------------------------------------------------

                           (End of provision)



Sec. 852.252-70  Solicitation provisions or clauses incorporated by 
          reference.

    As prescribed in 852.102(a), insert the following provision:

 Solicitation Provisions or Clauses Incorporated by Reference (JAN 2008)

    The following provisions or clauses incorporated by reference in 
this solicitation must be completed by the offeror or prospective 
contractor and submitted with the quotation or offer. Copies of these 
provisions or clauses are available on the Internet at the Web sites 
provided in the provision at FAR 52.252-1, Solicitation Provisions 
Incorporated by Reference, or the clause at FAR 52.252-2, Clauses 
Incorporated by Reference. Copies may also be obtained from the 
contracting officer.
    [Contracting officer shall list all FAR and 48 CFR Chapter 8 (VAAR) 
provisions and clauses incorporated by reference that must be completed 
by the offeror or prospective contractor and submitted with the 
quotation or offer.]

                           (End of provision)



Sec. 852.270-1  Representatives of contracting officers.

    As prescribed in 801.603-70(d), insert the following provision:

           Representatives of Contracting Officers (JAN 2008)

    The contracting officer reserves the right to designate 
representatives to act for him/her in furnishing technical guidance and 
advice or generally monitor the work to be performed under this 
contract. Such designation will be in writing and will define the scope 
and limitation of the designee's authority. A copy of the designation 
shall be furnished to the contractor.

                           (End of provision)



Sec. 852.270-2  Bread and bakery products--quantities.

    As prescribed in 870.111-3, insert the following clause:

            Bread and Bakery Products--Quantities (JAN 2008)

    The bidder agrees to furnish up to 25 percent more or 25 percent 
less than the quantities awarded when ordered by the Department of 
Veterans Affairs.

                             (End of clause)



Sec. 852.270-3  Purchase of shellfish.

    As prescribed in 870.111-3, insert the following clause:

                    Purchase of Shellfish (APR 1984)

    The bidder certifies that oysters, clams, and mussels will be 
furnished only from plants approved by and operated under the 
supervision of shellfish authorities of States whose certifications are 
endorsed currently by the U.S. Public Health Service, and the names and 
certificate numbers of those shellfish dealers must appear on current 
lists published by the U.S. Public Health Service. These items shall be 
packed and delivered in approved containers, sealed in such manner that 
tampering is easily discernible, and marked with packer's certificate 
number impressed or embossed on the side of such containers and preceded 
by the State abbreviation. Containers shall be tagged or labeled to show 
the name and address of the approved producer or shipper, the name of 
the State of origin, and the certificate number of the approved producer 
or shipper.

                             (End of clause)



Sec. 852.271-70  Nondiscrimination in services provided to 
          beneficiaries.

    As prescribed in 837.110-70 and 871.212, insert the following 
provision:

   Nondiscrimination in Services Provided to Beneficiaries (JAN 2008)

    The contractor agrees to provide all services specified in this 
contract for any person determined eligible by the Department of 
Veterans Affairs, regardless of the race, color, religion, sex, or 
national origin of the person for whom such services are ordered. The 
contractor further warrants that he/she will not resort to 
subcontracting as a means of circumventing this provision.

[[Page 283]]

                           (End of provision)



Sec. 852.271-71  [Reserved]



Sec. 852.271-72  Time spent by counselee in counseling process.

    As prescribed in 871.212, insert the following clause:

        Time Spent by Counselee in Counseling Process (APR 1984)

    The contractor agrees that no counselee referred under the 
provisions of this agreement will be required to give any extra time in 
connection with the counseling process to supply test results or other 
information for purposes other than those specified in this contract.

                             (End of clause)



Sec. 852.271-73  Use and publication of counseling results.

    As prescribed in 871.212, insert the following clause:

          Use and Publication of Counseling Results (JAN 2008)

    The contractor agrees that none of the information or data gathered 
in connection with the services specified in this contract or studies or 
materials based thereon or relating thereto will be publicized without 
the prior approval of the Under Secretary for Benefits or his/her 
designee.

                             (End of clause)



Sec. 852.271-74  Inspection.

    As prescribed in 871.212, insert the following clause:

                          Inspection (JAN 2008)

    The contractor will permit the duly authorized representative of the 
Department of Veterans Affairs to visit the place of instruction or the 
counseling and testing operations as may be necessary and examine the 
training facilities, the work of the veterans in training under this 
contract, and the records of these operations.

                             (End of clause)



Sec. 852.271-75  Extension of contract period.

    As prescribed in 871.212, insert the following clause:

                 Extension of Contract Period (APR 1984)

    This contract may be extended from year to year if agreeable to both 
parties provided the agreement for extension is consummated 30 days 
prior to the expiration date, and further provided that there is no 
change in the provisions, terms, conditions, or rate of payment. Any 
extension made hereunder is subject to the availability of funds during 
the period covered by the extension.

                             (End of clause)



Sec. 852.273-70  Late offers.

    As prescribed in 873.110(a), insert the following provision:

                         Late Offers (JAN 2003)

    This provision replaces paragraph (f) of FAR provision 52.212-1. 
Offers or modifications of offers received after the time set forth in a 
request for quotations or request for proposals may be considered, at 
the discretion of the contracting officer, if determined to be in the 
best interest of the Government. Late bids submitted in response to an 
invitation for bid (IFB) will not be considered.

                           (End of provision)



Sec. 852.273-71  Alternative negotiation techniques.

    As prescribed in 873.110(b), insert the following provision:

              Alternative Negotiation Techniques (JAN 2003)

    The contracting officer may elect to use the alternative negotiation 
techniques described in section 873.111(e) of 48 Code of Federal 
Regulations Chapter 8 in conducting this procurement. If used, offerors 
may respond by maintaining offers as originally submitted, revising 
offers, or submitting an alternative offer. The Government may consider 
initial offers unless revised or withdrawn, revised offers, and 
alternative offers in making the award. Revising an offer does not 
guarantee an offeror an award.

                           (End of provision)



Sec. 852.273-72  Alternative evaluation.

    As prescribed in 873.110(c), insert the following provision:

                    Alternative Evaluation (JAN 2003)

    (a) The Government will award a contract resulting from this 
solicitation to the responsible offeror submitting the lowest priced 
offer that conforms to the solicitation. During the specified period for 
receipt of offers, the amount of the lowest offer will be posted and may 
be viewed by [Contracting officer insert description of how the 
information may be viewed electronically or otherwise]. Offerors may 
revise offers anytime during

[[Page 284]]

the specified period. At the end of the specified time period for 
receipt of offers, the responsible offeror submitting the lowest priced 
offer will be in line for award.
    (b) Except when it is determined not to be in the Government's best 
interest, the Government will evaluate offers for award purposes by 
adding the total price for all options to the total price for the basic 
requirement. The Government may determine that an offer is unacceptable 
if the option prices are materially unbalanced. Evaluation of options 
shall not obligate the Government to exercise the option(s).

                           (End of provision)



Sec. 852.273-73  Evaluation--health-care resources.

    As prescribed in 873.110(d), in lieu of FAR provision 52.212-2, the 
contracting officer may insert a provision substantially as follows:

              Evaluation--Health-Care Resources (JAN 2003)

    (a) The Government will award a contract resulting from this 
solicitation to the responsible offeror whose offer, conforming to the 
solicitation, will be most advantageous to the Government, price and 
other factors considered. The following information or factors shall be 
used to evaluate offers: [Contracting officer insert evaluation 
information or factors, such as technical capability to meet the 
Government's requirements, past performance, or such other evaluation 
information or factors as the contracting officer deems necessary to 
evaluate offers. Price must be evaluated in every acquisition. The 
contracting officer may include the evaluation information or factors in 
their relative order of importance, such as in descending order of 
importance. The relative importance of any evaluation information must 
be stated in the solicitation.]
    (b) Except when it is determined not to be in the Government's best 
interest, the Government will evaluate offers for award purposes by 
adding the total price for all options to the total price for the basic 
requirement. The Government may determine that an offer is unacceptable 
if the option prices are materially unbalanced. Evaluation of options 
shall not obligate the Government to exercise the option(s).
    (c) If this solicitation is a request for proposals (RFP), a written 
notice of award or acceptance of an offer, mailed or otherwise furnished 
to the successful offeror within the time for acceptance specified in 
the offer, shall result in a binding contract without further action by 
either party. Before the offer's specified expiration time, the 
Government may accept an offer (or part of an offer), whether or not 
there are negotiations after its receipt, unless a written notice of 
withdrawal is received before award.

                           (End of provision)



Sec. 852.273-74  Award without exchanges.

    As prescribed in 873.110(e), insert the following provision:

                   Award Without Exchanges (JAN 2003)

    The Government intends to evaluate proposals and award a contract 
without exchanges with offerors. Therefore, each initial offer should 
contain the offeror's best terms from a cost or price and technical 
standpoint. However, the Government reserves the right to conduct 
exchanges if later determined by the contracting officer to be 
necessary.

                           (End of provision)

                             PART 853_FORMS

Sec.

Sec. 853.000 Scope of part.

                          Subpart 853.1_General


Sec. 853.107 Obtaining forms.

                   Subpart 853.2_Prescription of Forms


Sec. 853.201 Federal acquisition system.

Sec. 853.201-1 Contracting authority and responsibilities (SF 1402).

Sec. 853.213 Simplified acquisition procedures (SF's 18, 30, 44, 1165, 
          1449, and OF's 336, 347, and 348).

Sec. 853.215 Contracting by negotiation.

Sec. 853.215-70 VA Form 10-1170, Application for Furnishing Nursing Home 
          Care to Beneficiaries of VA.

Sec. 853.236 Construction and architect-engineer contracts.

Sec. 853.236-70 VA Form 10-6298, Architect-Engineer Fee Proposal.

Sec. 853.271 Loan Guaranty, Education and Vocational Rehabilitation and 
          Employment Programs.

Sec. 853.271-1 Loan Guaranty Program (VA Forms 26-6724 and 26-1839).

Sec. 853.271-2 Education Programs.

                   Subpart 853.3_Illustration of Forms


Sec. 853.300 Scope of subpart.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

[[Page 285]]



Sec. 853.000  Scope of part.

    This part prescribes VA forms for use in the acquisition of goods 
and services. It only identifies forms that are used between VA and its 
contractors or the general public. It does not identify forms for uses 
internal to VA or between VA and another Federal agency.

                          Subpart 853.1_General



Sec. 853.107  Obtaining forms.

    The VA forms may be obtained from any VA contracting office or by 
requesting such forms from the Deputy Assistant Secretary for 
Acquisition and Materiel Management, Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420.

                   Subpart 853.2_Prescription of Forms



Sec. 853.201  Federal acquisition system.



Sec. 853.201-1  Contracting authority and responsibilities (SF 1402).

    Standard Form (SF) 1402, Certificate of Appointment, is used in 
accordance with FAR 1.603-3, Appointment, to appoint VA contracting 
officers under VA's Contracting Officer Certification Program (see 
801.690-6).



Sec. 853.213  Simplified acquisition procedures (SF's 18, 30, 44, 1165, 
          1449, and OF's 336, 347, and 348).

    The following forms are prescribed as stated in this section for use 
in simplified acquisition procedures, orders under existing contracts or 
agreements, orders from required sources of supplies and services, and 
orders for other supplies or services:
    (a) VA Forms 90-2138, Order for Supplies or Services, or 90-2138-
ADP, Purchase Order for Supplies or Service, shall be used as indicated 
in 813.307. They may be used in lieu of OF 347, Order of Supplies and 
Services, or Standard Form 1449, Solicitation/Contract/Order for 
Commercial Items.
    (b) The following forms are for use for obtaining indicated medical 
and dental services within the limitations prescribed in 813.307:
    (1) VA Form 10-7078, Authorization and Invoice for Medical and 
Hospital Services.
    (2) VA Form 10-7079, Request for Outpatient Medical Services.
    (3) VA Form 10-2570d, Dental Record Authorization and Invoice for 
Outpatient Service.
    (c) VA Form 10-2511, Authority and Invoice for Travel by Ambulance 
or Other Hired Vehicle, will be used as prescribed in 813.307.
    (d) VA Form 10-2421, Prosthetics Authorization and Items and 
Services, will be used for indicated procurements not to exceed $300 as 
prescribed in 813.307.



Sec. 853.215  Contracting by negotiation.



Sec. 853.215-70  VA Form 10-1170, Application for Furnishing Nursing 
          Home Care to Beneficiaries of VA.

    VA Form 10-1170, Application for Furnishing Nursing Home Care to 
Beneficiaries of VA, will be used for establishing contract nursing home 
care for VA beneficiaries.



Sec. 853.236  Construction and architect-engineer contracts.



Sec. 853.236-70  VA Form 10-6298, Architect-Engineer Fee Proposal.

    VA Form 10-6298, Architect-Engineer Fee Proposal, shall be used as 
prescribed in 836.606-71.



Sec. 853.271  Loan Guaranty, Education and Vocational Rehabilitation and 
          Counseling Programs.



Sec. 853.271-1  Loan Guaranty Program (VA Forms 26-6724 and 26-1839).

    (a) VA Form 26-6724, Invitation, Bid, and/or Acceptance or 
Authorization, will be used in obtaining services specified in Subpart 
871.1.
    (b) VA Form 26-1839, Compliance Inspection Report, will be used for 
inspection of repairs for properties under the Loan Guaranty Program as 
specified in 846.472.



Sec. 853.271-2  Education Programs.

    To obtain education or rehabilitation services, contracting officers 
may use an individual written contract or VA Form 28-1905, Authorization 
and Certification of Entrance or Reentrance

[[Page 286]]

into Rehabilitation and Certification of Status.

                   Subpart 853.3_Illustration of Forms



Sec. 853.300  Scope of subpart.

    VA Forms will not be illustrated in this VAAR. Persons wishing to 
obtain copies of VA forms prescribed in the VAAR may do so in accordance 
with 853.107. VA forms may also be available on the Web at http://
www.va.gov/vaforms/.

[[Page 287]]

            SUBCHAPTER I_DEPARTMENT SUPPLEMENTARY REGULATIONS

                  PART 870_SPECIAL PROCUREMENT CONTROLS

                         Subpart 870.1_Controls

Sec.

Sec. 870.111 Subsistence.

Sec. 870.111-3 Contract clauses.

Sec. 870.111-5 Frozen processed food products.

Sec. 870.112 Telecommunications equipment.

Sec. 870.113 Paid use of conference facilities.

Sec. 870.115 Food service equipment.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

                         Subpart 870.1_Controls



Sec. 870.111  Subsistence.



Sec. 870.111-3  Contract clauses.

    (a) The contracting officer shall include the clause at 852.270-2, 
Bread and bakery products--quantities, in solicitations and contracts 
for bread and bakery products.
    (b) The contracting officer shall include the clause at 852.270-3, 
Purchase of shellfish, in solicitations and contracts for shellfish.



Sec. 870.111-5  Frozen processed food products.

    (a) The following frozen processed food products must have a label 
complying with the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 et 
seq.), which requires that all ingredients be listed according to the 
order of their predominance:
    (1) Frozen processed food products that contain meat, poultry, or a 
significant proportion of eggs.
    (2) Frozen processed food products that contain fish or fish 
products.
    (3) Frozen bakery products.
    (b) All procured frozen processed food products that contain meat, 
poultry or a significant proportion of eggs must meet the following 
requirements:
    (1) The products must be processed or prepared in plants operating 
under the supervision of the Department of Agriculture (USDA).
    (2) The product must be inspected and approved in accordance with 
USDA regulations governing meat, poultry, or egg inspection. A label or 
seal that indicates compliance with USDA regulations, affixed to the 
container, will be accepted as evidence of compliance.
    (c) All procured frozen processed food products that contain fish or 
fish products must meet the following requirements:
    (1) The product must be processed or prepared in plants operated 
under the supervision of the Department of Commerce (DOC). The products 
listed in DOC's publication ``Approved List of Sanitarily Inspected Fish 
Establishments'' are processed in plants under Federal inspection of the 
National Marine Fisheries Service, National Oceanic and Atmospheric 
Administration, DOC. The inspected products packed under various labels 
bearing the brand names are produced in accordance with current U.S. 
Grade Standards or official product specifications, packed under optimum 
hygienic conditions, and must meet Federal, State, and city sanitation 
and health regulations. Such brand label or DOC seal indicating 
compliance with DOC regulations, affixed to a container, will be 
accepted as evidence of compliance.
    (2) If the condition in paragraph (c)(1) of this section was not met 
(no seal), the shipment may be lot-inspected by the DOC, and containers 
stamped to indicate acceptance or a Certification of Inspection issued 
to accompany the shipment.
    (d) Producers of frozen bakery products that ship products in 
interstate commerce are required to comply with the Federal Food, Drug 
and Cosmetic Act. Therefore, the product must be verified as shipped 
interstate or that the producer ships products to other purchasers 
interstate.



Sec. 870.112  Telecommunications equipment.

    (a) The contracting officer must include the clause at 852.211-71, 
Special notice in solicitations, including those

[[Page 288]]

for construction, that are based on detailed purchase descriptions or 
formal specifications for telecommunications equipment, as defined in VA 
manual MP-6, Part VIII (available at any VA facility).
    (b) The Telecommunications Support Service must review and approve 
the descriptive literature required by the clause in 852.211-71, Special 
notice, furnished by the contractor after award, before delivery or 
installation by the contractor. Promptly upon receipt of the descriptive 
literature, contracting officers will forward it, together with a copy 
of the contract, the formal specification, or the detailed purchase 
description, to the DSPE.
    (c) Solicitations, including those for construction, for 
telecommunications equipment based on ``brand name or equal'' purchase 
description are subject to the following:
    (1) Before award, contracting officers will forward to the DSPE the 
abstract of bids, one copy of each offer received, including descriptive 
literature and pertinent letters, and the comments and recommendations 
of the contracting officer.
    (2) No commitments are to be made to contractors before receiving 
Central Office's response.
    (3) The solicitation must allow at least 30 calendar days for 
acceptance to allow sufficient time for the review required by this 
paragraph. (See FAR 52.214-16.)



Sec. 870.113  Paid use of conference facilities.

    When contracting for the use of conference facilities, contracting 
officers shall follow and comply with the Federal Travel Regulation, 41 
CFR part 301-74, Conference Planning, and shall document the contract 
file as specified therein, including documentation of efforts to locate 
Government-owned space and efforts to reduce costs.



Sec. 870.115  Food service equipment.

    (a) All new food service equipment purchased for Dietetic Service 
through other than Defense General Supply Center sources must meet 
requirements set forth by the National Sanitation Foundation.
    (b) The contracting officer will accept an affixed National 
Sanitation Foundation label and/or documentation of the certification by 
the National Sanitation Foundation from the contractor as evidence that 
the subject equipment meets sanitation standards issued by the National 
Sanitation Foundation.

  PART 871_LOAN GUARANTY AND VOCATIONAL REHABILITATION AND EMPLOYMENT 
                                PROGRAMS

          Subpart 871.1_Loan Guaranty and Direct Loan Programs

Sec.

Sec. 871.100 Scope of subpart.

Sec. 871.101 Policy.

Sec. 871.102 Authorization for repairs to properties.

Sec. 871.104 Qualification of bidders.

Sec. 871.106 Lien waivers.

Sec. 871.107 Stipulations against liens.

     Subpart 871.2_Vocational Rehabilitation and Employment Service


Sec. 871.200 Scope of subpart.

Sec. 871.201 General.

Sec. 871.201-1 Requirements for the use of contracts.

Sec. 871.201-2 Requirements when contracts are not required.

Sec. 871.201-3 Medical services.

Sec. 871.201-4 Letter contracts.

Sec. 871.202 Marking and release of supplies.

Sec. 871.203 Renewals or supplements to contracts.

Sec. 871.204 Guaranteed payment.

Sec. 871.205 Proration of charges.

Sec. 871.206 Other fees and charges.

Sec. 871.207 Payment of tuition or fees.

Sec. 871.208 Rehabilitation facilities.

Sec. 871.209 Records and reports.

Sec. 871.210 Correspondence courses.

Sec. 871.211 Information concerning correspondence courses.

Sec. 871.212 Contract clauses.

    Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.

          Subpart 871.1_Loan Guaranty and Direct Loan Programs



Sec. 871.100  Scope of subpart.

    This subpart sets forth policy and procedures with respect to the 
loan guaranty and direct loan programs as

[[Page 289]]

they pertain to property management, including the acquisition, 
management, and disposition of property, real, personal, or mixed, that 
were secured by loans guaranteed, insured, or made under Title 38, 
U.S.C.



Sec. 871.101  Policy.

    All acquisitions for the repair and maintenance of VA property 
acquired under 38 U.S.C. Chapter 37 must be made in accordance with FAR 
parts 14, 15, and 16, parts 814, 815, and 816 of this chapter, and this 
subpart.



Sec. 871.102  Authorization for repairs to properties.

    (a) Except as provided in this subpart, Directors, Loan Guaranty 
Officers, and Assistant Loan Guaranty Officers, VA Regional Offices, are 
authorized to approve a repair program for any VA property acquired 
under Chapter 37, Title 38, U.S.C., if the cost does not exceed $25,000. 
A repair program means the aggregate amount of the proposed contracts 
that are contemplated in a property analysis by the Loan Guaranty 
activity.
    (b) In cases where the expenditure is known or estimated to exceed 
$25,000, the Loan Guaranty Officer, or his or her designee, must forward 
the request, together with the loan guaranty folder, to the Under 
Secretary for Benefits for approval.
    (c) During the period when VA has assumed custody of the property 
from a holder and before its conveyance to VA under 38 CFR 36.4320, 
repairs not in excess of $3,500 are authorized, when appropriate to make 
the property ready for sale at an earlier date than would otherwise be 
possible if the repair program was delayed until VA acquired absolute 
title. In cases where the expenditure is known or estimated to exceed 
$3,500, the Loan Guaranty Officer, or his or her designee, must forward 
the request, together with the loan guarantee folder, to the Under 
Secretary for Benefits for approval.
    (d) The holder must not make repairs to a property when it has 
continued custody, except for emergency repairs not in excess of $500, 
unless the holder gives adequate notice to the Director, Regional 
Office. Emergency repairs means immediate action to preserve the 
property from serious damage or to correct a situation imminently 
dangerous to life or limb, including the initial cleanup of the property 
to prevent the risk of damage by fire or vandalism.
    (e) An approved management broker may be authorized, when the 
property is assigned, to incur expenses for fuel and utilities or other 
recurring items that VA is required to furnish to its tenants or are 
required to maintain the property if the following conditions are met:
    (1) Advance blanket authorization to a management broker must be 
limited to repairs not in excess of $500 in any transaction.
    (2) The management broker must either submit receipts with an 
invoice or maintain receipts for inspection.
    (3) Expenditures in excess of $500 require prior approval of the 
Director, Regional Office, having jurisdiction of the property.
    (4) The management broker must aggregate the costs of repairs when 
determining whether prior approval is required.



Sec. 871.104  Qualification of bidders.

    (a) Bidders must be qualified in accordance with procedures outlined 
in FAR subpart 9.1 and subpart 809.1 of this chapter.
    (b) Management brokers are not acceptable bidders for a repair 
contract due to their close association on a fee basis with VA. This 
restriction also applies to any contracting firm in which the management 
broker has an interest and in which it could be presumed that the firm 
would have an advantage over the other bidders. This does not preclude 
the management broker from performing routine recurring maintenance or 
minor repairs. When seeking payment for maintenance or repairs, the 
management broker must establish that any charges are not in excess of 
the prevailing fees for similar services in the area.



Sec. 871.106  Lien waivers.

    (a) In a contract for $2,500 or more, the contracting officer must 
include the following requirements:

[[Page 290]]

    (1) The contractor must sign a formal release in full or a lien 
waiver before payment may be made.
    (2) The contractor must notify the Director, Regional Office, of any 
subcontracts for services or materials in excess of $2,500. Each 
subcontractor must sign the release or waiver jointly with the prime 
contractor or exercise a release or waiver in the subcontractor's own 
name.
    (b) The contracting officer must not pay the contractor unless the 
release or waiver accompanies the contractor's invoice.
    (c) Before any authorized partial payment, the contractor must 
execute a release or waiver.
    (d) Due to the variations of local law, no standard release or 
waiver is prescribed. Each release or waiver must be prepared in 
accordance with local law and must be in form acceptable to the District 
Counsel.



Sec. 871.107  Stipulations against liens.

    (a) In a contract for an amount less than $2,500, when determined 
necessary by the Director, Regional Office, the contracting officer may 
include the following:
    The contractor expressly waives any and all rights to file or 
maintain any mechanics lien or claim against the aforesaid premises.
    (b) In a contract for $2,500 or more when there is doubt that the 
final responsibility of the contractor will provide maximum protection 
to the Government, the contracting officer must include any requirements 
that are available under local law. The contracting officer must obtain 
advice and approval of any contract stipulation or legal stipulations 
against liens from the District Counsel.

     Subpart 871.2_Vocational Rehabilitation and Employment Service



Sec. 871.200  Scope of subpart.

    This subpart establishes policy and procedures for the vocational 
rehabilitation and employment services as it pertains to the following:
    (a) Contracts for training and rehabilitation services.
    (b) Approval of institutions (including rehabilitation facilities), 
training establishments, and employers under 38 U.S.C. Chapter 31.
    (c) Contracts for counseling services under 38 U.S.C. Chapters 30, 
31, 32, 35, and 36 and 10 U.S.C. Chapters 106, 107, and 1606.



Sec. 871.201  General.



Sec. 871.201-1  Requirements for the use of contracts.

    The VA negotiates contracts for tuition, fees, books, supplies, and 
other allowable expenses incurred by an institution, training 
establishment, or employer for the training and rehabilitation of 
eligible veterans under 38 U.S.C. Chapter 31 when the following services 
are provided:
    (a) Courses of instruction by correspondence means a course of 
education or training conducted by mail consisting of regular lessons or 
reading assignments, the preparation of required written work that 
involves the application of principles studied in each lesson, the 
correction of assigned work with such suggestions or recommendation as 
may be necessary to instruct the student, the keeping of student 
achievement records, and issuance of a diploma, certificate, or other 
evidence to the student upon satisfactorily completing the requirements 
of the course.
    (b) Special services or special courses that are furnished at the 
request of the VA. Special services or courses are those services or 
courses that VA requests that are over and above those the institution 
customarily provides for similarly circumstanced non-veterans and that 
the contracting officer considers to be necessary for the rehabilitation 
of the trainee.



Sec. 871.201-2  Requirements when contracts are not required.

    (a) For the purpose of this section a contract is not required when 
all tuition, fees, and charges for books, supplies, or services 
necessary to train or educate an eligible veteran under 38 U.S.C. 
Chapter 31 are published in the school catalog or other published 
document.

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    (b) When a contract is not required, the Vocational Rehabilitation 
and Employment Officer must obtain a signed statement of charges from 
the educational institution or training establishment for courses to be 
offered, including the rate of tuition, fees, and separate charges, if 
any, for books, supplies, and equipment handling charges, refund policy, 
and other provisions as are required to determine proper payment. The 
statement of charges may be in the form of a statement on VA Form 28-
1905, Authorization and Certification of Entrance or Reentrance Into 
Rehabilitation and Certification Status, that charges will be in 
accordance with catalog or other published document (identify 
publication). The statement of charges may not exceed those charges 
nonveterans pay or that are published in the school catalog or other 
published document.



Sec. 871.201-3  Medical services.

    The medical services provided trainees under vocational 
rehabilitation and education contracts, agreements, or arrangements are 
separate and distinct from any other medical service under the 
jurisdiction of the Veterans Health Administration to which the veteran 
may be entitled. No certificate of eligibility is required from the 
Veterans Health Administration before the veteran may be provided such 
services.



Sec. 871.201-4  Letter contracts.

    Letter contracts are authorized for use in accordance with the 
provision of FAR 16.603 and in those cases in which it is not possible 
to complete a formal contract with an approved educational institution 
before the enrollment of eligible veterans for training.



Sec. 871.202  Marking and release of supplies.

    The educational institution or training establishment is not 
required to mark supplies to indicate ownership by the United States. 
Supplies are considered to be the property of the trainee at the time 
they are furnished.



Sec. 871.203  Renewals or supplements to contracts.

    Except for contracts for educational and vocational counseling, the 
contracting office may renew contracts from year to year by completing a 
renewal agreement no later than 30 days before the expiration of the 
contract. There must be no change in the schedule of provisions in the 
original contract.
    (a) Supplements may be negotiated at any time during the contract 
period upon the completion of the supplemental agreement.
    (b) Contracts for educational and vocational counseling may provide 
for automatic extension from year to year.



Sec. 871.204  Guaranteed payment.

    A contracting officer may not award a contract or agreement to any 
institution or training establishment that requires VA is to pay a 
minimum charge, or to enroll a minimum number of participants per 
quarter, semester, term, course, or other period.



Sec. 871.205  Proration of charges.

    A contract must include the exact formula agreed on for the 
proration of charges in the event that the veteran's program is 
interrupted or discontinued before the end of the term, semester, 
quarter, or other period, or the program is completed in less time than 
stated in the contract.



Sec. 871.206  Other fees and charges.

    VA may pay fees and other charges that are not prescribed by law but 
are required by nongovernmental organizations, such as initiation fees 
required to become a member of a labor union and the dues necessary to 
maintain membership incidental to training on the job or to obtaining 
employment during a period in which the veteran is a chapter 31 
participant, provided there are no facilities feasibly available where 
the necessary training can be feasibly accomplished or employment 
obtained without paying such charges. Payment for such fees must be made 
in accordance with Part 813.



Sec. 871.207  Payment of tuition or fees.

    (a) Contracts, agreements, or arrangements requiring the payment of 
tuition or fees must provide either of the following:

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    (1) Payment for tuition or fees must be made in arrears and must be 
prorated in installments over the school year or the length of the 
course.
    (2) An institution may be paid in accordance with paragraph (b) of 
this section, if the institution operates on a regular term, quarter, or 
semester basis and normally accepts students only at the beginning of 
the term, quarter, or semester and if the institution is one of the 
following:
    (i) An institution of higher learning that uses a standard unit of 
credit recognized by accrediting associations. Such institutions include 
those that are members of recognized national or regional educational 
accrediting associations, and those that, although not members of such 
accrediting associations, grant standard units of credit acceptable at 
full value without examination by collegiate institutions that are 
members of national or regional accrediting associations.
    (ii) A public tax-supported institution.
    (iii) An institution operated and controlled by a State, county, or 
local board of education.
    (b) An institution that meets the exceptions of paragraph (a)(2) of 
this section and that has a refund policy providing for a graduated 
scale of charges for purposes of determining refunds may be paid part or 
all such tuitions or fees for a term, quarter, or other period of 
enrollment immediately following the date on which the refund expires.
    (c) Proration of charges does not apply to a fee for noncontinuing 
service, such as a registration fee, etc.
    (d) The period for which payment of charges may be made is the 
period of actual enrollment and is subject to the following:
    (1) The effective date is the date of the trainee's entrance into 
training status, except that payment may be made for an entire semester, 
quarter, or term in institutions operating on that basis if the trainee 
enters no later than the final date set by the institution for enrolling 
for full credit.
    (2) In those cases where the institution has not set a final date 
for enrolling for full credit or does not set a date acceptable to VA, 
payment may be prorated on the basis of attendance, regardless of the 
refund policy.
    (3) If an institution customarily charges for the amount of credit 
or number of hours of attendance for which a trainee enrolls, payment 
may be made on that basis when a trainee enrolls after the final date 
permitted for carrying full credit for the semester or term.



Sec. 871.208  Rehabilitation facilities.

    Charges by rehabilitation facilities for the rehabilitation services 
provided under 38 U.S.C. Chapter 31 are paid in the same manner as 
charges for educational and vocational services through contract, 
agreement, or other arrangement.



Sec. 871.209  Records and reports.

    Contracts, agreements, or arrangements must provide for the number 
and frequency of reports, adequate financial records to support payment 
for each trainee, and maintenance of attendance and progress records. 
Such records must be preserved for a period of three years.



Sec. 871.210  Correspondence courses.

    Contracts with institutions for correspondence courses must provide 
for the following:
    (a) Major changes in courses or course material are not binding on 
the VA until a supplemental agreement to the contract is negotiated.
    (b) Minor changes in course or course material not affecting the 
length of the course or number of lessons and not lowering the 
educational value of the course or the quality of the course material, 
such as revision of text, the substitution of a newer lesson for an 
older one, or the substitution of equipment of equal or greater value, 
are permitted without supplemental agreements. The institution must 
place such minor changes and revisions on file with the contracting 
officer at the time of the change or revision.
    (c) Trainees must be provided with prompt and adequate lessons 
service and, unless otherwise specified in the contract, must be 
furnished the same texts, lessons service, diplomas, and other services 
as are normally provided

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for regularly enrolled non-veteran students.
    (d) All lessons must be adequately serviced on an individual basis. 
Grouping of lessons into units or partial servicing does not meet this 
requirement.
    (e) Each lesson must have a separate examination that is adequate in 
terms of lesson content.
    (f) The training of persons under a VA contract or the fact that the 
United States is using the facilities of the institution for training 
veterans must not be used in any way to advertise the institution. 
References in the advertising media or correspondence of the institution 
shall be limited to a list of courses under 38 U.S.C. Chapter 31 and 
must not be directed or pointed specifically to veterans.
    (g) The rates, fees, and charges must not be in excess of those 
charged nonveterans.
    (h) Payment must be made on a lesson-completed basis in areas for 
assignments sent in by trainees and serviced during a pay period as 
established by the contract.
    (i) Payment must be made only once for each lesson even though it is 
necessary to service a lesson more than once.



Sec. 871.211  Information concerning correspondence courses.

    Specific questions on correspondence courses as to the content of 
courses, academic credit, and entrance requirements for courses included 
in VA contracts may be directed to the institutions offering the 
courses.



Sec. 871.212  Contract clauses.

    Contracting officers must use the following clauses, as appropriate, 
in solicitations and contracts for vocational rehabilitation and 
employment services as they pertain to training and rehabilitation 
services and contracts for counseling services:
    (a) 852-271-70 Nondiscrimination in services provided to 
beneficiaries.
    (b) 852.271-72 Time spent by counselee in counseling process.
    (c) 852.271-73 Use and publication of counseling results.
    (d) 852.271-74 Inspection.
    (e) 852.271-75 Extension of contract period.

                           PART 872 [RESERVED]

  PART 873_SIMPLIFIED ACQUISITION PROCEDURES FOR HEALTH-CARE RESOURCES

Sec.

Sec. 873.101 Policy.

Sec. 873.102 Definitions.

Sec. 873.103 Priority sources.

Sec. 873.104 Competition requirements.

Sec. 873.105 Acquisition planning.

Sec. 873.106 Presolicitation exchanges with industry.

Sec. 873.107 Socioeconomic programs.

Sec. 873.108 Publicizing contract actions.

Sec. 873.109 General requirements for acquisition of health-care 
          resources.

Sec. 873.110 Solicitation provisions.

Sec. 873.111 Acquisition strategies for health-care resources.

Sec. 873.112 Evaluation information.

Sec. 873.113 Exchanges with offerors.

Sec. 873.114 Best value pool.

Sec. 873.115 Proposal revisions.

Sec. 873.116 Source selection decision.

Sec. 873.117 Award to successful offeror.

Sec. 873.118 Debriefings.

    Authority: 38 U.S.C. 501 and 8151-8153; 40 U.S.C. 121(c); and 48 CFR 
1.301-1.304.

    Source: 73 FR 2717, Jan. 15, 2008, unless otherwise noted.



Sec. 873.101  Policy.

    The simplified acquisition procedures set forth in this Department 
of Veterans Affairs Acquisition Regulation (VAAR) part apply to the 
acquisition of health-care resources consisting of commercial services 
or the use of medical equipment or space. These procedures shall be used 
in conjunction with the Federal Acquisition Regulation (FAR) and other 
parts of the VAAR. However, when a policy or procedure in the FAR or 
another part of the VAAR differs from the procedures contained in this 
part, this part shall apply. These procedures contain more flexibility 
than provided in the FAR or elsewhere in the VAAR. (38 U.S.C. 8153)



Sec. 873.102  Definitions.

    Commercial service means a service, except construction exceeding 
$2,000 and architect-engineer services, that is offered and sold 
competitively in the commercial marketplace, is performed under standard 
commercial terms and

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conditions, and is procured using firm-fixed price contracts. (38 U.S.C. 
8153)
    Health-care providers include health-care plans and insurers and any 
organizations, institutions, or other entities or individuals who 
furnish health-care resources. (38 U.S.C. 8153)
    Health-care resource includes hospital care and medical services (as 
those terms are defined in section 1701 of title 38 United States Code 
(U.S.C.)), any other health-care service, and any health-care support or 
administrative resource, including the use of medical equipment or 
space. (38 U.S.C. 8153)



Sec. 873.103  Priority sources.

    Without regard to FAR 8.002(a)(2), except for the acquisition of 
services available from the Committee for Purchase From People Who Are 
Blind or Severely Disabled, pursuant to the Javits-Wagner-O'Day Act (41 
U.S.C. 46-48c) and FAR Subpart 8.7, there are no priority sources for 
the acquisition of health-care resources consisting of commercial 
services or the use of medical equipment or space. (38 U.S.C. 8153)



Sec. 873.104  Competition requirements.

    (a) Without regard to FAR part 6, if the health-care resource 
required is a commercial service, the use of medical equipment or space, 
or research, and is to be acquired from an institution affiliated with 
the Department in accordance with section 7302 of title 38 U.S.C., 
including medical practice groups and other approved entities associated 
with affiliated institutions (entities will be approved if determined 
legally to be associated with affiliated institutions), or from blood 
banks, organ banks, or research centers, the resource may be acquired on 
a sole source basis. (38 U.S.C. 8153)
    (b) Acquisition of health-care resources identified in paragraph (a) 
of this section are not required to be publicized as otherwise required 
by 873.108 or FAR 5.101. In addition, written justification, as 
otherwise set forth in section 303(f) of the Federal Property and 
Administration Services Act of 1949 (41 U.S.C. 253(f)) and FAR part 6, 
is not required. (38 U.S.C. 8153)
    (c) Without regard to FAR 6.101, if the health-care resource 
required is a commercial service or the use of medical equipment or 
space, and is to be acquired from an entity not described in paragraph 
(a) of this section, contracting officers must seek competition to the 
maximum extent practicable and must permit all responsible sources, as 
appropriate under the provisions of this part, to submit a bid, proposal 
or quotation (as appropriate) for the resources to be procured and 
provide for the consideration by the Department of bids, proposals, or 
quotations so submitted. (38 U.S.C. 8153)
    (d) Without regard to FAR 5.101, acquisition of health-care 
resources identified in paragraph (c) of this section shall be 
publicized as otherwise required by 873.108. Moreover, for any such 
acquisition described in paragraph (c) of this section to be conducted 
on a sole source basis, the contracting officer must prepare a 
justification that includes the information and is approved at the 
levels prescribed in section 303(f) of the Federal Property and 
Administration Services Act of 1949 (41 U.S.C. 253(f)) and FAR part 6. 
(38 U.S.C. 8153)



Sec. 873.105  Acquisition planning.

    (a) Acquisition planning is an indispensable component of the total 
acquisition process.
    (b) For the acquisition of health-care resources consisting of 
commercial services or the use of medical equipment or space, where the 
acquisition is expected to exceed the simplified acquisition threshold 
(SAT), an acquisition team must be assembled. The team shall be tailored 
by the contracting officer for each particular acquisition expected to 
exceed the SAT. The team should consist of a mix of staff, appropriate 
to the complexity of the acquisition, and may include contracting, 
fiscal, legal, administrative, and technical personnel, and such other 
expertise as necessary to assure a comprehensive acquisition plan. The 
team should include the small business advocate representing the 
contracting activity or a higher level designee and the SBA Procurement 
Center Representative (PRC), if available. As a minimum, the team must 
include the

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contracting officer and a representative of the requesting service. (38 
U.S.C. 8153)
    (c) Prior to determining whether a requirement is suitable for 
acquisition using these simplified acquisition procedures, the 
contracting officer or the acquisition team, as appropriate, must 
conduct market research to identify interested businesses. It is the 
responsibility of the contracting officer to ensure the requirement is 
appropriately publicized and information about the procurement 
opportunity is adequately disseminated as set forth in 873.108. (38 
U.S.C. 8153)
    (d) In lieu of the requirements of FAR part 7 addressing 
documentation of the acquisition plan, the contracting officer may 
conduct an acquisition strategy meeting with cognizant offices to seek 
approval for the proposed acquisition approach. If a meeting is 
conducted, briefing materials shall be presented to address the 
acquisition plan topics and structure in FAR 7.105. Formal written 
minutes--summarizing decisions, actions, and conclusions--shall be 
prepared and included in the contract file, along with a copy of the 
briefing materials. (38 U.S.C. 8153)



Sec. 873.106  Presolicitation exchanges with industry.

    (a) This section shall be used in lieu of FAR part 10, except as 
provided in paragraph (b)(3) of this section. In conducting market 
research, exchange of information by all interested parties involved in 
an acquisition, from the earliest identification of a requirement 
through release of the solicitation, is encouraged. Interested parties 
include potential offerors, end users, Government acquisition and 
support personnel, and others involved in the conduct or outcome of the 
acquisition. The nature and extent of presolicitation exchanges between 
the Government and industry shall be a matter of the contracting 
officer's discretion (for acquisitions not exceeding the simplified 
acquisition threshold) or the acquisition team's discretion, as 
coordinated by the contracting officer. (38 U.S.C. 8153)
    (b) Techniques to promote early exchange of information include--
    (1) Industry or small business conferences;
    (2) Public hearings;
    (3) Market research in accordance with FAR 10.002(b), which shall be 
followed to the extent that the provisions therein would provide 
relevant information;
    (4) One-on-one meetings with potential offerors;
    (5) Presolicitation notices;
    (6) Draft requests for proposals (RFPs);
    (7) Requests for information (RFIs);
    (8) Presolicitation or preproposal conferences;
    (9) Site visits;
    (10) Electronic notices (e.g., Internet); and
    (11) Use of the Central Contractor Registration (CCR). (http://
www.bpn.gov/ccrinq/scripts/search.asp) and the ``Advanced Search'' 
feature on VetBiz Vendor Information Pages (http://vip.vetbiz.gov/
general--user/search/default.asp) to search for vendors. (38 U.S.C. 
8153).



Sec. 873.107  Socioeconomic programs.

    (a) Implementation. This section provides additional authority, over 
and above that found at FAR 19.502, to waive small business set-asides. 
For acquisitions above the micro-purchase threshold, if, through market 
research, the contracting officer determines that there is reasonable 
expectation that reasonably priced bids, proposals, or quotations will 
be received from two or more responsible small businesses, a requirement 
for health-care resources must be reserved for small business 
participation. Without regard to FAR 13.003(b)(1), 19.502-2, and 19.502-
3, the head of the contracting activity (HCA) may approve a waiver from 
the requirement for any set-aside for small business participation when 
a waiver is determined to be in the best interest of the Government. (38 
U.S.C. 8153)
    (b) Rejecting Small Business Administration (SBA) recommendations. 
(1) The contracting officer (or, if a waiver has been approved in 
accordance with paragraph (a) of this section, the HCA) must consider 
and respond to a recommendation from an SBA representative to set a 
procurement aside for small business within 5 working days. If the 
recommendation is rejected by the contracting officer (or, if a waiver

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has been approved, by the HCA) and if SBA intends to appeal that 
determination, SBA must, within 2 working days after receipt of the 
determination, notify the contracting officer involved of SBA's 
intention to appeal.
    (2) Upon receipt of the notification of SBA's intention to appeal 
and pending issuance of a final Department appeal decision to SBA, the 
contracting officer involved must suspend action on the acquisition 
unless the contracting officer makes a determination in writing that 
proceeding to contract award and performance is in the public interest. 
The contracting officer must promptly notify SBA of the determination to 
proceed with the solicitation and/or contract award and must provide a 
copy of the written determination to SBA.
    (3) SBA shall be allowed 10 working days after receiving the 
rejection notice from the contracting officer (or the HCA, if a waiver 
has been approved) for acquisitions not exceeding $5 million, or 15 
working days after receiving the rejection notice for acquisitions 
exceeding $5 million, to file an appeal. SBA must notify the contracting 
officer within this 10 or 15 day period whether an appeal has, in fact, 
been taken. If notification is not received by the contracting officer 
within the applicable period, it shall be deemed that an appeal was not 
taken.
    (4) SBA shall submit appeals to the Secretary. Decisions shall be 
made by the DSPE, whose decisions shall be final. (38 U.S.C. 8153)
    (c) Contracting with the Small Business Administration (the 8(a) 
Program). The procedures of FAR 19.8 shall be followed where a 
responsible 8(a) contractor has been identified.
    (d) Certificates of competency and determinations of responsibility. 
The Director, Office of Small and Disadvantaged Business Utilization 
(OSDBU), Department of Veterans Affairs (VA), and the Assistant 
Administrator, Office of Industrial Assistance, Small Business 
Administration (SBA), shall serve as ombudsmen to assist VA contracting 
officers on any issues relating to Certificates of Competency (COC). 
Copies of all COC referrals to SBA shall be submitted to the Director, 
OSDBU (00SB).



Sec. 873.108  Publicizing contract actions.

    (a) Without regard to FAR 5.101, all acquisitions under this part 
873, except as provided in paragraph (b) of this section, for dollar 
amounts in excess of the simplified acquisition threshold (SAT), as set 
forth in FAR Part 13, shall be publicly announced utilizing a medium 
designed to obtain competition to the maximum extent practicable and to 
permit all responsible sources, as appropriate under the provisions of 
this part, to submit a bid, proposal, or quotation (as appropriate).
    (1) The publication medium may include the Internet, including the 
Governmentwide point of entry (GPE), and local, regional or national 
publications or journals, as appropriate, at the discretion of the 
contracting officer, depending on the complexity of the acquisition.
    (2) Without regard to FAR 5.203, notice shall be published for a 
reasonable time prior to issuance of a request for quotations (RFQ) or a 
solicitation, depending on the complexity or urgency of the acquisition, 
in order to afford potential offerors a reasonable opportunity to 
respond. If the notice includes a complete copy of the RFQ or 
solicitation, a prior notice is not required, and the RFQ or 
solicitation shall be considered to be announced and issued at the same 
time.
    (3) The notice may include contractor qualification parameters, such 
as time for delivery of service, credentialing or medical certification 
requirements, small business or other socio-economic preferences, the 
appropriate small business size standard, and such other qualifications 
as the contracting officer deems necessary to meet the needs of the 
Government. (38 U.S.C. 8153)
    (b) The requirement for public announcement does not apply to sole 
source acquisitions, described in 873.104(a), from institutions 
affiliated with the Department in accordance with section 7302 of title 
38 U.S.C., including medical practice groups and other approved entities 
associated with affiliated institutions (entities will be approved if 
determined legally to be associated with affiliated institutions), or 
from blood banks, organ banks, or

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research centers. In addition, the requirement for public announcement 
does not apply to sole source acquisitions of hospital care and medical 
services (as those terms are defined in section 1701 of title 38 U.S.C.) 
or any other health-care services, including acquisitions for the mutual 
use or exchange of use of such services. However, as required by 38 
U.S.C. 8153(a)(3)(D), acquisitions from non-affiliates, if conducted on 
a sole source basis, must still be justified and approved (see 
873.104(d)). (38 U.S.C. 8153)
    (c) For acquisitions below the SAT, a public announcement is 
optional. (38 U.S.C. 8153)
    (d) Each solicitation issued under these procedures must prominently 
identify that the requirement is being solicited under the authority of 
38 U.S.C. 8153 and part 873. (38 U.S.C. 8153)



Sec. 873.109  General requirements for acquisition of health-care 
          resources.

    (a) Source selection authority. Contracting officers shall be the 
source selection authority for acquisitions of health-care resources, 
consisting of commercial services or the use of medical equipment or 
space, utilizing the guidance contained in this part 873. (38 U.S.C. 
8153)
    (b) Statement of work/Specifications. Statements of work or 
specifications must define the requirement and should, in most 
instances, include qualifications or limitations such as time limits for 
delivery of service, medical certification or credentialing 
restrictions, and small business or other socio-economic preferences. 
The contracting officer may include any other such terms as the 
contracting officer deems appropriate for each specific acquisition. (38 
U.S.C. 8153)
    (c) Documentation. Without regard to FAR 13.106-3(b), 13.501(b), or 
15.406-3, the contract file must include:
    (1) A brief written description of the procedures used in awarding 
the contract;
    (2) The market research, including the determination that the 
acquisition involves health-care resources;
    (3) The number of offers received; and
    (4) An explanation, tailored to the size and complexity of the 
acquisition, of the basis for the contract award decision. (38 U.S.C. 
8153)
    (d) Time for receipt of quotations or offers. (1) Without regard to 
FAR 5.203, contracting officers shall set a reasonable time for receipt 
of quotations or proposals in requests for quotations (RFQs) and 
solicitations.
    (2) Without regard to FAR 15.208 or 52.212-1(f), quotations or 
proposals received after the time set forth in an RFQ or request for 
proposals (RFP) may be considered at the discretion of the contracting 
officer if determined to be in the best interest of the Government. 
Contracting officers must document the rationale for accepting 
quotations or proposals received after the time specified in the RFQ or 
RFP. This paragraph (d)(2) shall not apply to RFQs or RFPs if 
alternative evaluation techniques described in 873.111(e)(1)(ii) are 
used. This paragraph (d)(2) does not apply to invitations for bid 
(IFBs). (38 U.S.C. 8153)
    (e) Cancellation of procurements. Without regard to FAR 14.404-1, 
any acquisition may be canceled by the contracting officer at any time 
during the acquisition process if cancellation is determined to be in 
the best interest of the Government. (38 U.S.C. 8153)



Sec. 873.110  Solicitation provisions.

    (a) As provided in 873.109(d), contracting officers shall insert the 
provision at 852.273-70, Late offers, in all requests for quotations 
(RFQs) and requests for proposals (RFPs) exceeding the micro-purchase 
threshold. (38 U.S.C. 8153)
    (b) The contracting officer shall insert a provision in RFQs and 
solicitations, substantially the same as the provision at 852.273-71, 
Alternative negotiation techniques, when either of the alternative 
negotiation techniques described in 873.111(e)(1) will be used. (38 
U.S.C. 8153)
    (c) The contracting officer shall insert the provision at 852.273-
72, Alternative evaluation, in lieu of the provision at 52.212-2, 
Evaluation--Commercial Items, when the alternative negotiation technique 
described in 873.111(e)(1)(ii) will be used. (38 U.S.C. 8153)

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    (d) When evaluation information, as described in 873.112, is to be 
used to select a contractor under an RFQ or RFP for health-care 
resources consisting of commercial services or the use of medical 
equipment or space, the contracting officer may insert the provision at 
852.273-73, Evaluation--health-care resources, in the RFQ or RFP in lieu 
of FAR provision 52.212-2. (38 U.S.C. 8153)
    (e) As provided at 873.113(f), if award may be made without exchange 
with vendors, the contracting officer shall include the provision at 
852.273-74, Award without exchanges, in the RFQ or RFP. (38 U.S.C. 8153)
    (f) The contracting officer shall insert the FAR clause at 52.207-3, 
Right of First Refusal of Employment, and the clause at 852.207-70, 
Report of employment under commercial activities, in all RFQs, 
solicitations, and contracts issued under the authority of 38 U.S.C. 
8151-8153 which may result in a conversion, from in-house performance to 
contract performance, of work currently being performed by Department of 
Veterans Affairs employees. (38 U.S.C. 8153)



Sec. 873.111  Acquisition strategies for health-care resources.

    Without regard to FAR 13.003 or 13.500(a), the following acquisition 
processes and techniques may be used, singly or in combination with 
others, as appropriate, to design acquisition strategies suitable for 
the complexity of the requirement and the amount of resources available 
to conduct the acquisition. These strategies should be considered during 
acquisition planning. The contracting officer shall select the process 
most appropriate to the particular acquisition. There is no preference 
for sealed bid acquisitions. (38 U.S.C. 8153)
    (a) Request for quotations. (1) Without regard to FAR 6.1 or 6.2, 
contracting officers must solicit a sufficient number of sources to 
promote competition to the maximum extent practicable and to ensure that 
the purchase is advantageous to the Government, based, as appropriate, 
on either price alone or price and other factors (e.g., past performance 
and quality). RFQs must notify vendors of the basis upon which the award 
is to be made.
    (2) For acquisitions in excess of the SAT, the procedures set forth 
in FAR Part 13 concerning RFQs may be utilized without regard to the 
dollar thresholds contained therein. (38 U.S.C. 8153)
    (b) Sealed bidding. FAR Part 14 provides procedures for sealed 
bidding.
    (c) Negotiated acquisitions. If the procedures of FAR Parts 12, 13, 
and 15 differ from the procedures of this Part, the procedures of this 
Part shall take precedence. (38 U.S.C. 8153)
    (d) Multiphase acquisition technique. (1) General. Without regard to 
FAR 15.202, multiphase acquisitions may be appropriate when the 
submission of full proposals at the beginning of an acquisition would be 
burdensome for offerors to prepare and for Government personnel to 
evaluate. Using multiphase techniques, the Government may seek limited 
information initially, make one or more down-selects, and request a full 
proposal from an individual offeror or limited number of offerors. 
Provided that the notice notifies offerors, the contracting officer may 
limit the number of proposals during any phase to the number that will 
permit an efficient competition among proposals offering the greatest 
likelihood of award. The contracting officer may indicate in the notice 
an estimate of the greatest number of proposals that will be included in 
the down-select phase. The contracting officer may down-select to a 
single offeror.
    (2) First phase notice. In the first phase, the Government shall 
publish a notice (see 873.108) that solicits responses and that may 
provide, as appropriate, a general description of the scope or purpose 
of the acquisition and the criteria that will be used to make the 
initial down-select decision. The notice may also inform offerors of the 
evaluation criteria or process that will be used in subsequent down-
select decisions. The notice must contain sufficient information to 
allow potential offerors to make an informed decision about whether to 
participate in the acquisition. The notice must advise offerors that 
failure to participate in the first phase will make them ineligible to 
participate in subsequent

[[Page 299]]

phases. The notice may be in the form of a synopsis in the 
Governmentwide point of entry (GPE) or a narrative letter or other 
appropriate method that contains the information required by this 
paragraph.
    (3) First phase responses. Offerors shall submit the information 
requested in the notice described in paragraph (d)(2) of this section. 
Information sought in the first phase may be limited to a statement of 
qualifications and other appropriate information (e.g., proposed 
technical concept, past performance information, limited pricing 
information).
    (4) First phase evaluation and down-select. The Government shall 
evaluate all offerors' submissions in accordance with the notice and 
make a down-select decision.
    (5) Subsequent phases. Additional information shall be sought in the 
second phase so that a down-select can be performed or an award made 
without exchanges, if necessary. The contracting officer may conduct 
exchanges with remaining offeror(s), request proposal revisions, or 
request best and final offers, as determined necessary by the 
contracting officer, in order to make an award decision.
    (6) Debriefing. Without regard to FAR 15.505, contracting officers 
must debrief offerors as required by 873.118 when they have been 
excluded from the competition. (38 U.S.C. 8153)
    (e) Alternative negotiation techniques. (1) Contracting officers may 
utilize alternative negotiation techniques for the acquisition of 
health-care resources. Alternative negotiation techniques may be used 
when award will be based on either price or price and other factors. 
Alternative negotiation techniques include but are not limited to:
    (i) Indicating to offerors a price, contract term or condition, 
commercially available feature, and/or requirement (beyond any 
requirement or target specified in the solicitation) that offerors will 
have to improve upon or meet, as appropriate, in order to remain 
competitive.
    (ii) Posting offered prices electronically or otherwise (without 
disclosing the identity of the offerors) and permitting revisions of 
offers based on this information.
    (2) Except as otherwise permitted by law, contracting officers shall 
not conduct acquisitions under this section in a manner that reveals the 
identities of offerors, releases proprietary information, or otherwise 
gives any offeror a competitive advantage (see FAR 3.104). (38 U.S.C. 
8153)



Sec. 873.112  Evaluation information.

    (a) Without regard to FAR 15.304 (except for 15.304(c)(1) and 
(c)(3), which do apply to acquisitions under this authority), the 
criteria, factors, or other evaluation information that apply to an 
acquisition, and their relative importance, are within the broad 
discretion of agency acquisition officials as long as the evaluation 
information is determined to be in the best interest of the Government. 
(38 U.S.C. 8153)
    (b) Price or cost to the Government must be evaluated in every 
source selection. Past performance shall be evaluated in source 
selections for negotiated competitive acquisitions exceeding the SAT 
unless the contracting officer documents that past performance is not an 
appropriate evaluation factor for the acquisition. (38 U.S.C. 8153)
    (c) The quality of the product or service may be addressed in source 
selection through consideration of information such as past compliance 
with solicitation requirements, technical excellence, management 
capability, personnel qualifications, and prior experience. The 
information required from quoters, bidders, or offerors shall be 
included in notices or solicitations, as appropriate. (38 U.S.C. 8153)
    (d) The relative importance of any evaluation information included 
in a solicitation must be set forth therein. (38 U.S.C. 8153)



Sec. 873.113  Exchanges with offerors.

    (a) Without regard to FAR 15.201 or 15.306, negotiated acquisitions 
generally involve exchanges between the Government and competing 
offerors. Open exchanges support the goal of efficiency in Government by 
providing the Government with relevant information (in addition to that 
submitted in the offeror's initial proposal) needed to understand and 
evaluate the offeror's proposal. The nature and extent of exchanges 
between the Government and

[[Page 300]]

offerors is a matter of contracting officer judgment. Clarifications, 
communications, and discussions, as provided for in the FAR, are 
concepts not applicable to acquisitions under this part 873. (38 U.S.C. 
8153)
    (b) Exchanges with potential offerors may take place throughout the 
source selection process. Exchanges may start in the planning stages and 
continue through contract award. Exchanges should occur most often with 
offerors determined to be in the best value pool (see 873.114). The 
purpose of exchanges is to ensure there is mutual understanding between 
the Government and the offerors on all aspects of the acquisition, 
including offerors' submittals/proposals. Information disclosed as a 
result of oral or written exchanges with an offeror may be considered in 
the evaluation of an offeror's proposal. (38 U.S.C. 8153)
    (c) Exchanges may be conducted, in part, to obtain information that 
explains or resolves ambiguities or other concerns (e.g., perceived 
errors, perceived omissions, or perceived deficiencies) in an offeror's 
proposal. (38 U.S.C. 8153)
    (d) Exchanges shall only be initiated if authorized by the 
contracting officer and need not be conducted with all offerors. (38 
U.S.C. 8153)
    (e) Except for acquisitions based on alternative negotiation 
techniques contained in 873.111(e)(1), the contracting officer and other 
Government personnel involved in the acquisition shall not disclose 
information regarding one offeror's proposal to other offerors without 
consent of the offeror in accordance with FAR parts 3 and 24. (38 U.S.C. 
8153)
    (f) Award may be made on initial proposals without exchanges if the 
solicitation states that the Government intends to evaluate proposals 
and make award without exchanges, unless the contracting officer 
determines that exchanges are considered necessary. (38 U.S.C. 8153)



Sec. 873.114  Best value pool.

    (a) Without regard to FAR 15.306(c), the contracting officer may 
determine the most highly rated proposals having the greatest likelihood 
of award based on the information or factors and subfactors in the 
solicitation. These vendors constitute the best value pool. This 
determination is within the sole discretion of the contracting officer. 
Competitive range determinations, as provided for in the FAR, are not 
applicable to acquisitions under this part 873. (38 U.S.C. 8153)
    (b) In planning an acquisition, the contracting officer may 
determine that the number of proposals that would otherwise be included 
in the best value pool is expected to exceed the number at which an 
efficient, timely, and economical competition can be conducted. In 
reaching such a conclusion, the contracting officer may consider such 
factors as the results of market research, historical data from previous 
acquisitions for similar services, and the resources available to 
conduct the source selection. Provided the solicitation notifies 
offerors that the best value pool can be limited for purposes of making 
an efficient, timely, and economical award, the contracting officer may 
limit the number of proposals in the best value pool to the greatest 
number that will permit an efficient competition among the proposals 
offering the greatest likelihood of award. The contracting officer may 
indicate in the solicitation the estimate of the greatest number of 
proposals that will be included in the best value pool. The contracting 
officer may limit the best value pool to a single offeror. (38 U.S.C. 
8153)
    (c) If the contracting officer determines that an offeror's proposal 
is no longer in the best value pool, the proposal shall no longer be 
considered for award. Written notice of this decision must be provided 
to unsuccessful offerors at the earliest practicable time. (38 U.S.C. 
8153)



Sec. 873.115  Proposal revisions.

    (a) Without regard to FAR 15.307, the contracting officer may 
request proposal revisions as often as needed during the proposal 
evaluation process at any time prior to award from vendors remaining in 
the best value pool. Proposal revisions shall be submitted in writing. 
The contracting officer may establish a common cutoff date for receipt 
of proposal revisions. Contracting

[[Page 301]]

officers may request best and final offers. In any case, contracting 
officers and acquisition team members must safeguard proposals, and 
revisions thereto, to avoid unfair dissemination of an offeror's 
proposal. (38 U.S.C. 8153)
    (b) If an offeror initially included in the best value pool is no 
longer considered to be among those most likely to receive award after 
submission of proposal revisions and subsequent evaluation thereof, the 
offeror may be eliminated from the best value pool without being 
afforded an opportunity to submit further proposal revisions. (38 U.S.C. 
8153)
    (c) Requesting and/or receiving proposal revisions does not 
necessarily conclude exchanges. However, requests for proposal revisions 
should advise offerors that the Government may make award without 
obtaining further revisions. (38 U.S.C. 8153)



Sec. 873.116  Source selection decision.

    (a) An integrated comparative assessment of proposals should be 
performed before source selection is made. The contracting officer shall 
independently determine which proposal(s) represents the best value, 
consistent with the evaluation information or factors and subfactors in 
the solicitation, and that the prices are fair and reasonable. The 
contracting officer may determine that all proposals should be rejected 
if it is in the best interest of the Government. (38 U.S.C. 8153)
    (b) The source selection team, or advisory boards or panels, may 
conduct comparative analysis(es) of proposals and make award 
recommendations, if the contracting officer requests such assistance. 
(38 U.S.C. 8153)
    (c) The source selection decision must be documented in accordance 
with FAR 15.308.



Sec. 873.117  Award to successful offeror.

    (a) The contracting officer shall award a contract to the successful 
offeror by furnishing the contract or other notice of the award to that 
offeror. (38 U.S.C. 8153)
    (b) If a request for proposal (RFP) process was used for the 
solicitation and if award is to be made without exchanges, the 
contracting officer may award a contract without obtaining the offeror's 
signature a second time. The offeror's signature on the offer 
constitutes the offeror's agreement to be bound by the offer. If a 
request for quotation (RFQ) process was used for the solicitation, and 
if the contracting officer determines there is a need to establish a 
binding contract prior to commencement of work, the contracting officer 
should obtain the offeror's acceptance signature on the contract to 
ensure formation of a binding contract. (38 U.S.C. 8153)
    (c) If the award document includes information that is different 
than the latest signed offer, both the offeror and the contracting 
officer must sign the contract award. (38 U.S.C. 8153)
    (d) When an award is made to an offeror for less than all of the 
items that may be awarded and additional items are being withheld for 
subsequent award, each notice shall state that the Government may make 
subsequent awards on those additional items within the offer acceptance 
period. (38 U.S.C. 8153)



Sec. 873.118  Debriefings.

    Offerors excluded from a request for proposals (RFP) may submit a 
written request for a debriefing to the contracting officer. Without 
regard to FAR 15.505, preaward debriefings may be conducted by the 
contracting officer when determined to be in the best interest of the 
Government. Post-award debriefings shall be conducted in accordance with 
FAR 15.506. (38 U.S.C. 8153)

[[Page 303]]



                     CHAPTER 9--DEPARTMENT OF ENERGY




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
901             Federal Acquisition Regulations System......         305
902             Definitions of words and terms..............         307
903             Improper business practices and personal 
                    conflicts of interest...................         307
904             Administrative matters......................         310
             SUBCHAPTER B--COMPETITION ACQUISITION PLANNING
905             Publicizing contract actions................         318
906             Competition requirements....................         318
907             [Reserved]

908             Required sources of supplies and services...         319
909             Contractor qualifications...................         324
911             Describing agency needs.....................         330
912             Acquisition of commercial items.............         331
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
913             Simplified acquisition procedures...........         332
914             Sealed bidding..............................         332
915             Contracting by negotiation..................         333
916             Types of contracts..........................         347
917             Special contracting methods.................         349
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
919             Small business programs.....................         354
922             Application of labor laws to Government 
                    acquisition.............................         358
923             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         361
924             Protection of privacy and freedom of 
                    information.............................         365
925             Foreign acquisition.........................         366
926             Other socioeconomic programs................         368
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
927             Patents, data, and copyrights...............         372

[[Page 304]]

928             Bonds and insurance.........................         380
931             Contract cost principles and procedures.....         381
932             Contract financing..........................         383
933             Protests, disputes, and appeals.............         387
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
935             Research and development contracting........         389
936             Construction and architect-engineer 
                    contracts...............................         389
937             Service contracting.........................         391
939             Acquisition of information technology.......         392
941             Acquisition of utility services.............         393
                    SUBCHAPTER G--CONTRACT MANAGEMENT
942             Contract administration and audit services..         394
945             Government property.........................         396
947             Transportation..............................         400
949             Termination of contracts....................         400
950             Extraordinary contractual actions and the 
                    Safety Act..............................         401
951             Use of Government sources by contractors....         403
                     SUBCHAPTER H--CLAUSES AND FORMS
952             Solicitation provisions and contract clauses         405
             SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS
970             DOE management and operating contracts......         450

[[Page 305]]

                          SUBCHAPTER A_GENERAL

             PART 901_FEDERAL ACQUISITION REGULATIONS SYSTEM

               Subpart 901.1_Purpose, Authority, Issuance

Sec.

Sec. 901.101 Purpose.

Sec. 901.103 Authority.

Sec. 901.104 Applicability.

Sec. 901.105 Issuance.

Sec. 901.105-1 Publication and code arrangement.

Sec. 901.105-2 Arrangement of regulations.

Sec. 901.105-3 Copies.

Sec. 901.106 OMB approval under the Paperwork Reduction Act.

              Subpart 901.3_Agency Acquisition Regulations


Sec. 901.301-70 Other issuances related to acquisition.

      Subpart 901.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 901.601 General.

Sec. 901.602-3 Ratification of unauthorized commitments.

Sec. 901.603 Selection, appointment, and termination of appointment.

Sec. 901.603-1 General.

Sec. 901.603-70 Appointment of contracting officers and contracting 
          officer's representatives.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 61 FR 41704, Aug. 9, 1996, unless otherwise noted.

               Subpart 901.1_Purpose, Authority, Issuance



Sec. 901.101  Purpose.

    The Department of Energy Acquisition Regulation (DEAR) in this 
chapter establishes uniform acquisition policies which implement and 
supplement the Federal Acquisition Regulation (FAR) (Chapter 1 of title 
48 of the Code of Federal Regulations (CFR)).

[61 FR 41704, Aug. 9, 1996, as amended at 76 FR 7689, Feb. 11, 2011]



Sec. 901.103  Authority.

    The DEAR and amendments thereto are issued by the Senior Procurement 
Executives of the Department of Energy (DOE) and the National Nuclear 
Security Administration (NNSA). The DOE Senior Procurement Executive 
delegation is pursuant to a delegation from the Secretary of Energy 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. 
121(c)(2)), and other applicable laws. The NNSA Senior Procurement 
Executive delegation is pursuant to a delegation from the Administrator 
of the NNSA, in accordance with section 3212 of the National Nuclear 
Security Administration Act (50 U.S.C. 2402), section 205(c) of the 
Federal Property and Administrative Services Act of 1949, as amended, 
(40 U.S.C. 121(c)(2)), and other applicable laws.

[76 FR 7689, Feb. 11, 2011]



Sec. 901.104  Applicability.

    The FAR and DEAR apply to all DOE and NNSA acquisitions of supplies 
and services which obligate appropriated funds unless otherwise 
specified in this chapter.

[61 FR 41704, Aug. 9, 1996. Redesignated and amended at 76 FR 7689, Feb. 
11, 2011]



Sec. 901.105  Issuance.



Sec. 901.105-1  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 (CFR), and 
Government Printing Office's Electronic CFR at http://
ecfr.gpoaccess.gov.
    (b) The DEAR is issued as chapter 9 of title 48 of the CFR.

[76 FR 7689, Feb. 11, 2011]



Sec. 901.105-2  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 48 CFR 1.105-2(b) 
apply to the DEAR, but the DEAR numbering

[[Page 306]]

will be preceded with a 9 or a 90. Material which supplements the FAR 
will be assigned the numbers 70 and up.

[61 FR 41704, Aug. 9, 1996. Redesignated and amended at 76 FR 7689, Feb. 
11, 2011]



Sec. 901.105-3  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 or viewed on 
line at http://ecfr.gpoaccess.gov or at http://management.energy.gov/
DEAR.

[61 FR 41704, Aug. 9, 1996. Redesignated and amended at 76 FR 7689, Feb. 
11, 2011]



Sec. 901.106  OMB approval under the Paperwork Reduction Act.

    The Office of Management and Budget (OMB) control number for the 
collection of information under 48 CFR chapter 9 is 1910-4100.

[76 FR 7689, Feb. 11, 2011]

              Subpart 901.3_Agency Acquisition Regulations



Sec. 901.301.70  Other issuances related to acquisition.

    (a) In addition to the FAR and DEAR, there are other issuances which 
deal with acquisition. Among these are the Federal Property Management 
Regulation, the Federal Management Regulation, the DOE Property 
Management Regulation, and DOE Directives. The Department also maintains 
the DOE Acquisition Guide (``the Guide''), which has procedural guidance 
for the acquisition community. The DOE Acquisition Guide serves this 
purpose by identifying relevant internal standard operating procedures 
to be followed by both procurement and program personnel who are 
involved in various aspects of the acquisition process. The Guide also 
is intended to be a repository of best practices found throughout the 
agency that reflect specific illustrations of techniques which might be 
helpful to all readers. The Guide is at http://management.energy.gov/
policy--guidance/Acquisition--Guide.htm.

[76 FR 7689, Feb. 11, 2011]

      Subpart 901.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 901.601  General.

    (a) Contracting authority for DOE vests in the Secretary of Energy, 
and for NNSA in the Administrator.
    (1) The Secretary has delegated this authority to the DOE Senior 
Procurement Executive. The DOE Senior Procurement Executive has 
redelegated this authority to the DOE Heads of Contracting Activities 
(HCA). These delegations are formal written delegations containing 
specific dollar limitations and conditions. Each DOE HCA, in turn, makes 
formal contracting officer appointments for its contracting activity.
    (2) Contracting authority for NNSA vests in the Under Secretary for 
Nuclear Security, also known as the NNSA Administrator. The NNSA 
Administrator has delegated this authority, with specific dollar 
limitations and conditions to the NNSA Senior Procurement Executive. The 
NNSA Senior Procurement Executive has redelegated this authority to the 
NNSA Head of the Contracting Activities (HCA). Each NNSA HCA in turn 
makes formal contracting officer appointments for its contracting 
activity.
    (b) The Senior Procurement Executives have been authorized, without 
power of redelegation, to perform the functions set forth at 48 CFR 
1.601(b) regarding the assignment of contracting functions and 
responsibilities to another agency, and the creation of joint or 
combined offices with another agency to exercise acquisition functions 
and responsibilities.

[76 FR 7689, Feb. 11, 2011]



Sec. 901.602-3  Ratification of unauthorized commitments.

    (b)(2) The Senior Procurement Executives are authorized to ratify 
unauthorized commitments.
    (3) The ratification authority of the DOE and NNSA Senior 
Procurement Executives in paragraph (b)(2) of this section is delegated 
to the Head of the Contracting Activity (HCA) for individual 
unauthorized commitments of

[[Page 307]]

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

[61 FR 41704, Aug. 9, 1996, as amended at 76 FR 7689, Feb. 11, 2011]



Sec. 901.603  Selection, appointment, and termination of appointment.



Sec. 901.603-1  General.

    The DOE Order 361.1B, Acquisition Career Management Program, or its 
successor order, sets forth the requirements and responsibilities for 
the DOE and NNSA Acquisition Career Development Program.

[76 FR 7689, Feb. 11, 2011]



Sec. 901.603-70  Appointment of contracting officers and contracting 
          officer's representatives.

    See the DOE Order 541.1B, Appointment of Contracting Officers and 
Contracting Officer Representatives, or its successor order, for 
procedures on the appointment of contracting officers and contracting 
officer's representatives.

[76 FR 7689, Feb. 11, 2011]

                 PART 902_DEFINITIONS OF WORDS AND TERMS

                        Subpart 902.1_Definitions

Sec.

Sec. 902.101 Definitions.

                    Subpart 902.2_Definitions Clause


Sec. 902.201 Contract clause.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 76 FR 7690, Feb. 11, 2011, unless otherwise noted.

                        Subpart 902.1_Definitions



Sec. 902.101  Definitions.

    Agency Head or Head of the Agency means--
    (1) For the Department of Energy (DOE)--
    (i) The Secretary;
    (ii) The Deputy Secretary; or
    (iii) Under Secretaries of the Department of Energy.
    (2) For the National Nuclear Security Administration (NNSA) the 
Administrator, also known as the Under Secretary of Nuclear Security.
    Department of Energy (DOE) means, as used in the DEAR, the 
Department of Energy and includes the National Nuclear Security 
Administration (NNSA), unless otherwise specified.
    Senior Procurement Executive means for the Department of Energy, the 
Director, Office of Procurement and Assistance Management and for the 
National Nuclear Security Administration, the Director, Office of 
Acquisition and Supply Management.

                    Subpart 902.2_Definitions Clause



Sec. 902.201  Contract clause.

    Insert the clause at 952.202-1, Definitions, in solicitation and 
contracts that exceed the simplified acquisition threshold.

 PART 903_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 903.1_Safeguards

Sec.

Sec. 903.101 Standards of conduct.

Sec. 903.101-3 Agency regulations.

Sec. 903.104-1 Definitions.

Sec. 903.104-7 Violations or possible violations (DOE coverage--
          paragraph (a)).

       Subpart 903.2_Contractor Gratuities to Government Personnel


Sec. 903.203 Reporting suspected violations of the Gratuities clause.

Sec. 903.204 Treatment of violations.

         Subpart 903.3_Reports of Suspected Antitrust Violations


Sec. 903.303 Reporting suspected antitrust violations.

                      Subpart 903.4_Contingent Fees


Sec. 903.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

[[Page 308]]

             Subpart 903.5_Other Improper Business Practices


Sec. 903.502 Subcontractor kickbacks.

Subpart 903.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them


Sec. 903.603 Responsibilities of the contracting officer.

             Subpart 903.7_Voiding and Rescinding Contracts


Sec. 903.700 Scope of subpart.

    Subpart 903.9_Whistleblower Protections for Contractor Employees


Sec. 903.900 Scope of subpart.

Sec. 903.901 Definition.

Sec. 903.902 Applicability.

Sec. 903.970 Remedies.

Sec. 903.971 Contract clause.

      Subpart 903.10_Contractor Code of Business Ethics and Conduct


Sec. 903.1004 Contract clauses.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 11940, Mar. 28, 1984, unless otherwise noted.

                        Subpart 903.1_Safeguards



Sec. 903.101  Standards of conduct.



Sec. 903.101-3  Agency regulations.

    Detailed rules applicable to the conduct of DOE employees are set 
forth in 10 CFR part 1010.

[49 FR 11940, Mar. 28, 1984, as amended at 60 FR 47307, Sept. 12, 1995]



Sec. 903.104-1  Definitions.

    As used in this section and for the purposes of the post-employment 
restrictions at 48 CFR 3.104-2(b)(3)--
    Deputy program manager means the individual within DOE who normally 
acts as the program manager in the absence of the program manager, and 
does not mean an individual who occasionally acts for the program 
manager or the deputy program manager.
    Program manager means the individual within DOE who:
    (1) Exercises authority on a day-to-day basis to manage an 
acquisition program--
    (i) For a system attained through the acquisition process; and
    (ii) With one or more contracts, at least one of which has a value 
exceeding $10,000,000; and
    (2) Is generally the person at the lowest organizational level who 
has authority to make technical and budgetary decisions on behalf of 
DOE.
    System means a combination of elements that function together to 
produce the capabilities required to fulfill a mission need, including, 
but not limited to hardware, equipment, software, or any combination 
thereof.

[63 FR 56851, Oct. 23, 1998. Redesignated and amended at 74 FR 36361, 
July 22, 2009]



Sec. 903.104-7  Violations or possible violations.

    (a) Except for Headquarters activities, the individual within DOE 
responsible for fulfilling the requirements of 48 CFR 3.104-7(a) (1) and 
(2), relative to contracting officer conclusions on the impact of a 
violation or possible violation of subsections 27 (a), (b), (c) or (d) 
of the Office of Federal Procurement Policy Act, shall be the legal 
counsel assigned direct responsibility for providing legal advice to the 
contracting office making the award or selecting the source. The legal 
counsel is the Chief Counsel for the Operations Offices or the Federal 
Energy Technology Center; the Counsel, or the Chief Counsel, for the 
Support Offices or the Naval Reactors Offices; the General Counsel for 
National Nuclear Security Administration (NNSA), and the General Counsel 
for the Power Administrations. For Headquarters activities, the 
individual designated to perform the responsibilities in 48 CFR 3.104-
7(a) (1) and (2) regarding questions of disclosure of proprietary or 
source selection information is the Assistant General Counsel for 
Procurement and Financial Assistance. The designated individual for 
other questions regarding 48 CFR 3.104-7(a) (1) and (2) for Headquarters 
activities is the Agency Ethics Official (Designated Agency Ethics 
Official).

[62 FR 53756, Oct. 16, 1997. Redesignated and amended at 74 FR 36361, 
July 22, 2009]

[[Page 309]]

       Subpart 903.2_Contractor Gratuities to Government Personnel



Sec. 903.203  Reporting suspected violations of the Gratuities clause.

    (a) Suspected violations of the Gratuities clause shall be reported 
to the Head of the Contracting Activity (HCA) in writing detailing the 
circumstances. The HCA will evaluate the report and, if the report 
appears to substantiate the allegations, the matter will be referred to 
the Senior Procurement Executive for disposition.

[49 FR 11940, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 74 
FR 36378, July 22, 2009]



Sec. 903.204  Treatment of violations.

    Apparent violations will be processed in accordance with the 
debarment and suspension rules set forth at Title 10, part 1035, of the 
Code of Federal Regulations.

         Subpart 903.3_Reports of Suspected Antitrust Violations



Sec. 903.303  Reporting suspected antitrust violations.

    (a) Potential anti-competitive practices, such as described in 48 
CFR 3.301, and antitrust law violations as described in 48 CFR 3.303, 
evidenced in bids or proposals, shall be reported to the Office of 
General Counsel through the Head of the Contracting Activity with a copy 
to the Senior Procurement Executive. The Office of General Counsel will 
provide reports to the Attorney General, as appropriate.

[50 FR 12183, Mar. 27, 1985, as amended at 59 FR 9104, Feb. 25, 1994; 76 
FR 7690, Feb. 11, 2011]

                      Subpart 903.4_Contingent Fees



Sec. 903.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

    (b) Before the Chief of the Contracting Office initiates appropriate 
action, the action shall be reviewed by Legal Counsel.

[76 FR 7690, Feb. 11, 2011]

             Subpart 903.5_Other Improper Business Practices



Sec. 903.502  Subcontractor kickbacks.

    Contracting officers shall report suspected violations of the Anti-
Kickback Act through the Head of the Contracting Activity, or designee, 
to the Office of General Counsel.

[49 FR 11940, Mar. 28, 1984, as amended at 74 FR 36361, July 22, 2009]

Subpart 903.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them



Sec. 903.603  Responsibilities of the contracting officer.

    (a) When the needs of the Government cannot be reasonably supplied 
by sources other than employees of the Government or sources which are 
substantially owned or controlled by Government employees, the 
contracting officer, in accordance with 48 CFR 3.602, may submit, 
through the HCA, a request to the Senior Procurement Executive, with 
appropriate justification, for approval of an exception to the 
prohibitions contained in 48 CFR 3.601.

[49 FR 11940, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 74 
FR 36378, July 22, 2009; 76 FR 7690, Feb. 11, 2011]

             Subpart 903.7_Voiding and Rescinding Contracts



Sec. 903.700  Scope of subpart.

    The HCA is the designee for determining whether to void or rescind a 
contract. This authority is nondelegable.

[76 FR 7690, Feb. 11, 2011]

    Subpart 903.9_Whistleblower Protections for Contractor Employees

    Source: 65 FR 81005, Dec. 22, 2000, unless otherwise noted.



Sec. 903.900  Scope of subpart.

    This subpart implements the DOE Contractor Employee Protection 
Program as set forth at 10 CFR part 708.

[[Page 310]]

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 
subpart; 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.

[65 FR 81005, Dec. 22, 2000. Redesignated at 74 FR 36361, July 22, 2009]



Sec. 903.901  Definition.

    Contractor, as used in this subpart, has the meaning contained in 10 
CFR 708.2.

[65 FR 81005, Dec. 22, 2000. Redesignated at 74 FR 36361, July 22, 2009]



Sec. 903.902  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.

[65 FR 81005, Dec. 22, 2000. Redesignated at 74 FR 36361, July 22, 2009]



Sec. 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.



Sec. 903.971  Contract clause.

    The contracting officer shall insert the clause at 952.203-70, 
Whistleblower Protection for Contractor Employees, in contracts that 
involve work to be done on behalf of DOE directly related to activities 
at DOE-owned or leased sites.

      Subpart 903.10_Contractor Code of Business Ethics and Conduct



Sec. 903.1004  Contract clauses.

    (b)(2)(ii) Insert the DOE Web site address http://ig.energy.gov/
hotline.htm in paragraph (b)(3) of the 48 CFR 52.203-14 clause, Display 
of Hotline Poster(s).

[76 FR 7690, Feb. 11, 2011]

                     PART 904_ADMINISTRATIVE MATTERS

    Subpart 904.4_Safeguarding Classified Information Within Industry

Sec.

Sec. 904.401 Definitions.

Sec. 904.402 General.

Sec. 904.404 Solicitation provision and contract clause.

Subpart 904.6 [Reserved]

               Subpart 904.7_Contractor Records Retention


Sec. 904.702 Applicability.

                 Subpart 904.8_Government Contract Files


Sec. 904.803 Contents of contract files.

Sec. 904.804 Closeout of contract files.

Sec. 904.804-1 Closeout by the office administering the contract.

Sec. 904.805 Storage, handling, and disposal of contract files.

                    Subpart 904.70_Facility Clearance


Sec. 904.7000 Scope of subpart.

Sec. 904.7001 Applicability.

Sec. 904.7002 Definitions.

Sec. 904.7003 Disclosure of foreign ownership, control, or influence.

Sec. 904.7004 Findings, determination, and contract award or 
          termination.

[[Page 311]]

  Subpart 904.71_Prohibition on Contracting (National Security Program 
                               Contracts)


Sec. 904.7100 Scope of subpart.

Sec. 904.7101 Definitions.

Sec. 904.7102 Waiver by the Secretary.

Sec. 904.7103 Solicitation provision and contract clause.

                      Subpart 904.72_Public Affairs


Sec. 904.7200 Purpose.

Sec. 904.7201 Contract clause.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 11941, Mar. 28, 1984, unless otherwise noted.

    Subpart 904.4_Safeguarding Classified Information Within Industry



Sec. 904.401  Definitions.

    Access authorization means an administrative determination that an 
individual is eligible for access to classified information or is 
eligible for access to, or control over, special nuclear material.
    Applicant means an individual who has submitted an expression of 
interest in employment; who is under consideration by the contractor for 
employment in a particular position; and who has not removed himself or 
herself from further consideration or otherwise indicated that he or she 
is no longer interested in the position.
    Classified information means information that is classified as 
restricted data or formerly restricted data under the Atomic Energy Act 
of 1954, or information determined to require protection against 
unauthorized disclosure under Executive Order 12958, Classified National 
Security Information, as amended, or prior executive orders, which is 
identified as national security information.
    Facility clearance means an administrative determination that a 
facility is eligible to access, produce, use or store classified 
information, or special nuclear material.
    Restricted data means all data concerning design, manufacture, or 
utilization of atomic weapons; production of special nuclear material; 
or use of special nuclear material in the production of energy, but 
excluding data declassified or removed from the restricted data category 
pursuant to Section 142, as amended, of the Atomic Energy Act of 1954 
(42 U.S.C. 2162).
    Review or background review means a Contractor's assessment of the 
background of an uncleared applicant or uncleared employee for a 
position requiring a DOE access authorization prior to selecting that 
individual for such a position.

[67 FR 14875, Mar. 28, 2002, as amended at 74 FR 23124, May 18, 2009]



Sec. 904.402  General.

    (a) The basis of Department of Energy's (DOE) industrial security 
requirements is the Atomic Energy Act of 1954, as amended, and Executive 
Orders 12958 and 12829.
    (b) DOE security regulations concerning restricted data are codified 
at 10 CFR part 1045.
    (c)(1) Section 234B of the Atomic Energy Act (42 U.S.C. 2282b) 
requires that DOE contracts include a clause that provides for an 
appropriate reduction in the fees or amounts paid to the contractor 
under the contract in the event of a violation by the contractor or any 
contractor employee of any rule, regulation, or order relating to the 
safeguarding or security of Restricted Data or other classified 
information. The clause is required for all DOE prime contracts that 
involve any possibility of contractor access to Restricted Data or other 
classified information. The clause is required to specify various 
degrees of violations and the amount of the reduction attributable to 
each degree of violation. The clause prescribed at 904.404(d)(6) 
(952.204-76, Conditional Payment of Fee or Profit--Safeguarding 
Restricted Data and Other Classified Information) or the clause 
prescribed at 923.7003(f) (952.223-76, Conditional Payment of Fee or 
Profit--Safeguarding Restricted Data and Other Classified Information 
and Protection of Worker Safety and Health) shall be used for this 
purpose unless the clause prescribed at 970.1504-5(b)(1) (970.5215-3, 
Conditional Payment of Fee, Profit, and Other Incentives--Facility 
Management Contracts) is used.
    (2) The 952.204-76 clause entitled ``Conditional Payment of Fee or 
Profit--Safeguarding Restricted Data and

[[Page 312]]

Other Classified Information'' and the 952.223-76 clause entitled 
``Conditional Payment of Fee or Profit--Safeguarding Restricted Data and 
Other Classified Information and Protection of Worker Safety and 
Health'' provide for reductions of fee or profit that is earned by the 
contractor depending upon the severity of the contractor's failure to 
comply with contract terms or conditions relating to the safeguarding of 
Restricted Data or other classified information. When reviewing 
performance failures that would otherwise warrant a reduction of earned 
fee, the contracting officer must consider mitigating factors that may 
warrant a reduction below the applicable range specified in the clause. 
Some of the mitigating factors that must be considered are specified in 
the clause.
    (3) The contracting officer must obtain the concurrence of the Head 
of the Contracting Activity--
    (i) Prior to effecting any reduction of fee or amounts otherwise 
payable to the contractor in accordance with the terms and conditions of 
the 952.204-76 clause entitled ``Conditional Payment of Fee or Profit--
Safeguarding Restricted Data and Other Classified Information'' or of 
the 952.223-76 clause entitled ``Conditional Payment of Fee or Profit--
Safeguarding Restricted Data and Other Classified Information and 
Protection of Worker Safety and Health;'' and
    (ii) For determinations that no reduction of fee is warranted for a 
particular performance failure(s) that would otherwise warrant a 
reduction.

[67 FR 14876, Mar. 28, 2002, as amended at 68 FR 68776, Dec. 10, 2003; 
74 FR 36361, July 22, 2009]



Sec. 904.404  Solicitation provision and contract clause.

    (d) The security clauses to be used in DOE contracts are found at 
952.204. They are:
    (1) Security, 952.204-2. This clause is required in contracts and 
subcontracts, the performance of which involves or is likely to involve 
classified information, access to special nuclear materials or the 
provision of protective services. DOE utilizes the National Industrial 
Security Program but DOE's security authority is derived from the Atomic 
Energy Act which contains specific language not found in other agencies' 
authorities. For this reason, DOE contracts must contain the clause at 
952.204-2 rather than the clause at 48 CFR 52.204-2.
    (2) Classification/Declassification, 952.204-70. This clause is to 
be used in all contracts which involve classified information.
    (3) Sensitive foreign nation controls, 952.204-71. This clause is 
required in unclassified research contracts which may involve making 
unclassified information about nuclear technology available to certain 
sensitive foreign nations. The contractor shall be provided at the time 
of award the listing of nations referenced in DOE Order 142.3 or its 
successor. (The attachment referred to in the clause shall set forth the 
applicable requirements of the DOE regulations on dissemination of 
unclassified published and unpublished technical information to foreign 
nations.)
    (4) Disclosure of information, 952.204-72. This clause may be used 
in place of the clauses entitled ``Security'' and ``Classification'' in 
contracts with educational institutions for research work performed in 
their own institute facilities that are not likely to produce classified 
information.
    (5) Facility Clearance, 952.204-73. This solicitation provision 
should be used in solicitations expected to result in contracts and 
subcontracts that require employees to possess access authorizations.
    (6) Except as prescribed in 970.1504-5(b), the contracting officer 
shall insert the clause at 952.204-76, Conditional Payment of Fee or 
Profit--Safeguarding Restricted Data and Other Classified Information 
and Protection of Worker Safety and Health, in all contracts that 
contain the clause at 952.204-2, Security, but that do not contain the 
clause at 952.250-70, Nuclear Hazards Indemnity Agreement.
    (7) Computer Security, 952.204-77. This clause is required in 
contracts in which the contractor may have access to

[[Page 313]]

computers owned, leased or operated on behalf of the Department of 
Energy.

[49 FR 11941, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984, as amended at 54 
FR 27646, June 30, 1989; 59 FR 24358, May 11, 1994; 67 FR 14871, Mar. 
28, 2002; 67 FR 14876, Mar. 28, 2002; 68 FR 68777, Dec. 10, 2003; 71 FR 
40885, July 19, 2006; 74 FR 23124, May 18, 2009; 74 FR 36361, July 22, 
2009; 76 FR 7690, Feb. 11, 2011]

Subpart 904.6 [Reserved]

               Subpart 904.7_Contractor Records Retention



Sec. 904.702  Applicability.

    (b) Contracts containing the clause at 952.223-71 Integration of 
Environment Safety, and Health into Work Planning and Execution, or the 
Radiation Protection and Nuclear Criticality clause at 952.223-72, must 
also include the Preservation of Individual Occupational Radiation 
Exposure Records clause at 952.223-75 which will necessitate retention 
of records in accordance with schedules contained in applicable DOE 
Directives in the records management series, rather than those found at 
48 CFR subpart 4.7.

[74 FR 36361, July 22, 2009]

                 Subpart 904.8_Government Contract Files



Sec. 904.803  Contents of contract files.

    (a) (29) The record copy of the Individual Acquisition Action Report 
shall be included in the file section containing procurement management 
reports.

[49 FR 11941, Mar. 28, 1984, as amended at 74 FR 36361, July 22, 2009]



Sec. 904.804  Closeout of contract files.



Sec. 904.804-1  Closeout by the office administering the contract.

    (a) The Head of the Contracting Activity (HCA) shall ensure that 
necessary procedures and milestone schedules are established to meet the 
requirements of 48 CFR 4.804-1, and that resources are applied to effect 
the earliest practicable deobligation of excess funds and the timely 
closeout of all contract files which are physically completed or 
otherwise eligible for closeout action.
    (b) Quick closeout procedures for cost reimbursable and other than 
firm fixed price type contracts are covered under 48 CFR 42.708.

[49 FR 11941, Mar. 28, 1984, as amended at 62 FR 53757, Oct. 16, 1997; 
74 FR 36361, July 22, 2009; 76 FR 7690, Feb. 11, 2011]



Sec. 904.805  Storage, handling, and disposal of contract files.

    Contract files shall be disposed of in accordance with applicable 
DOE Order 243.1. (See current version.)

[74 FR 36361, July 22, 2009]

                    Subpart 904.70_Facility Clearance



Sec. 904.7000  Scope of subpart.

    This subpart sets forth the Department of Energy policies and 
procedures regarding Facility Clearances for contractors and 
subcontractors that require access to classified information or special 
nuclear material. A Facility Clearance is based upon a determination 
that satisfactory safeguards and security measures are carried out for 
classified activities being performed at the facility and upon a 
favorable foreign ownership, control, or influence (FOCI) determination.

[67 FR 14876, Mar. 28, 2002]



Sec. 904.7001  Applicability.

    The provisions of this subpart shall apply to all offeror(s), 
contractors, and subcontractors who will or do have access to classified 
information or a significant quantity of special nuclear material.

[49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 76 
FR 7690, Feb. 11, 2011]



Sec. 904.7002  Definitions.

    Contract means the prime contract and the subcontract at any tier.
    Contracting officer means the DOE contracting officer.
    Contractor means the contractor and the subcontractor at any tier.
    Facility clearance means an administrative determination that a 
facility is eligible to access, produce, use, or store

[[Page 314]]

classified information, or special nuclear material.
    Foreign interest means any of the following--
    (1) Foreign government or foreign government agency or 
instrumentality thereof;
    (2) Any form of business enterprise organized under the laws of any 
country other than the United States or its possessions;
    (3) Any form of business enterprise organized or incorporated under 
the laws of the U.S., or a State or other jurisdiction within the U.S. 
which is owned, controlled, or influenced by a foreign government, 
agency, firm, corporation, or person; or
    (4) Any person who is not a U.S. citizen.
    Foreign ownership, control, or influence means the situation where 
the degree of ownership, control, or influence over an offeror(s) or a 
contractor by a foreign interest is such that a reasonable basis exists 
for concluding that compromise of classified information or special 
nuclear material may possibly result.
    Special nuclear material means special nuclear material as defined 
in 10 CFR 710.5(a).

[49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 67 
FR 14876, Mar. 28, 2002; 74 FR 36361, July 22, 2009; 76 FR 7690, Feb. 
11, 2011]



Sec. 904.7003  Disclosure of foreign ownership, control, or influence.

    (a) If a contract requires a contractor to have a Facility 
Clearance, DOE must determine whether the contractor is or may be 
subject to foreign ownership, control or influence before a contract can 
be awarded.
    (b) If, during the performance of a contract, the contractor comes 
under FOCI, then the DOE must determine whether a continuation of the 
Facility Clearance may pose an undue risk to the common defense and 
security through the possible compromise of that information or 
material. If the DOE determines that such a threat or potential threat 
exists, the contracting officer shall consider the alternatives of 
negotiating an acceptable method of isolating the foreign interest which 
owns, controls, or influences the contractor or terminating the 
contract.
    (c) It is essential for the DOE to obtain information about FOCI 
which is sufficient to help the Department determine whether award of a 
contract to a person or firm, or the continued performance of a contract 
by a person or firm, may pose undue risk to the common defense and 
security. Therefore, the provision specified at 952.204-73 Facility 
Clearance, shall be included in solicitations that involve offeror(s) or 
contractors that are subject to 904.7001.
    (d) The contracting officer shall not award or extend any contract 
subject to this subpart, exercise any options under a contract, modify 
any contracts subject to this subpart, or approve or consent to a 
subcontract subject to this subpart unless--
    (1) The contractor provides the information required by the 
solicitation provision at 952.204-73 Facility Clearance, and
    (2) The contracting officer has made a positive determination in 
accordance with 904.7004.

[49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 62 
FR 42073, Aug. 5, 1997; 67 FR 14876, Mar. 28, 2002; 74 FR 36362, July 
22, 2009]



Sec. 904.7004  Findings, determination, and contract award or 
          termination.

    (a) Based on the information disclosed by the offeror(s) or 
contractor, and after consulting with the DOE Office of Safeguards and 
Security, the contracting officer must determine that award of a 
contract to an offeror(s) or continued performance of a contract by a 
contractor will not pose an undue risk to the common defense and 
security. The contracting officer need not prepare a separate finding 
and determination addressing FOCI; however, the memorandum of 
negotiation shall include a discussion of the applicability of this 
subpart and the resulting determination.
    (b) In those cases where FOCI does exist, and the DOE determines 
that an undue risk to the common defense and security may exist, the 
offeror(s) or contractor shall be requested to propose within a 
prescribed period of time a plan of action to avoid or mitigate

[[Page 315]]

the foreign influences by isolation of the foreign interest.
    (c) The types of plans that a contractor can propose are: measures 
which provide for physical or organizational separation of the facility 
or organizational component containing the classified information or 
special nuclear material; modification or termination of agreements with 
foreign interests; diversification or reduction of foreign source 
income; assignment of specific security duties and responsibilities to 
board members or special executive level committees; or any other 
actions to negate or reduce FOCI to acceptable levels. The plan of 
action may vary with the type of foreign interest involved, degree of 
ownership, and information involved so that each plan must be negotiated 
on a case by case basis. If the offeror(s) or contractor and the DOE 
cannot negotiate a plan of action that isolates the offeror(s) or 
contractor from FOCI satisfactory to the DOE, then the offeror(s) shall 
not be considered for contract award and affected existing contracts 
with a contractor shall be terminated.

[49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994]

  Subpart 904.71_Prohibition on Contracting (National Security Program 
                               Contracts)

    Source: 58 FR 59684, Nov. 10, 1993, unless otherwise noted.



Sec. 904.7100  Scope of subpart.

    This subpart implements section 836 of the Fiscal Year 1993 Defense 
Authorization Act (Pub. L. 102-484) which prohibits the award of a 
Department of Energy contract under the national security program to an 
entity controlled by a foreign government if it is necessary for that 
entity to be given access to information in a proscribed category of 
information in order to perform the contract.

[58 FR 59684, Nov. 10, 1993, as amended at 67 FR 14876, Mar. 28, 2002]



Sec. 904.7101  Definitions.

    Effectively owned or controlled means that a foreign government or 
an entity controlled by a foreign government has the power, either 
directly or indirectly, whether exercised or exercisable, to control or 
influence the election or appointment of the Offeror's officers, 
directors, partners, regents, trustees, or a majority of the Offeror's 
board of directors by any means, e.g., ownership, contract, or operation 
of law.
    Entity controlled by a foreign government means any domestic or 
foreign organization or corporation that is effectively owned or 
controlled by a foreign government or any individual acting on behalf of 
a foreign government. See subpart 925.7 for a statement of the 
prohibition on certain foreign purchases.
    Foreign government means any governing body organized and existing 
under the laws of any country other than the United States and its 
possessions and trust territories and any agent or instrumentality of 
that government.
    Proscribed information means--
    (1) Top Secret information;
    (2) Communications Security (COMSEC) information, except classified 
keys used to operate secure telephone units (STU IIIs);
    (3) Restricted Data, as defined in the Atomic Energy Act of 1954, as 
amended;
    (4) Special Access Program (SAP) information; or
    (5) Sensitive Compartmented Information (SCI).

[58 FR 59684, Nov. 10, 1993, as amended at 74 FR 36362, July 22, 2009]



Sec. 904.7102  Waiver by the Secretary.

    (a) 10 U.S.C. 2536(b)(1)(A) allows the Secretary of Energy to waive 
the prohibition on the award of contracts set forth in 10 U.S.C. 2536(a) 
if the Secretary determines that a waiver is essential to the national 
security interests of the United States. Any request for a waiver 
regarding award of a contract or execution of a novation agreement shall 
address--
    (1) Identification of the proposed awardee and description of the 
control by a foreign government;
    (2) Description of the procurement and performance requirements;
    (3) Description of why a waiver is essential to the national 
security interests of the United States;

[[Page 316]]

    (4) The availability of other entities to perform the work; and
    (5) A description of alternate means available to satisfy the 
requirement.
    (b) 10 U.S.C. 2536(b)(1)(B) allows the Secretary of Energy to waive 
the prohibition on the award of contracts set forth in 10 U.S.C. 2536(a) 
for environmental restoration, remediation or waste management contracts 
at a DOE facility if the Secretary determines that a waiver will advance 
the environmental restoration, remediation or waste management 
objectives of DOE; will not harm the national security interests of the 
United States; and may be authorized because the entity to which the 
contract is to be awarded is controlled by a foreign government with 
which the Secretary is authorized to exchange Restricted Data under 
Section 144.c. of the Atomic Energy Act of 1954 (42 U.S.C. 2164(c)). Any 
request for such a waiver regarding award of a contract or execution of 
a novation agreement shall address--
    (1) Identification of the proposed awardee and description of the 
control by a foreign government;
    (2) Description of the procurement and performance requirements;
    (3) A description of how the Department's environmental restoration, 
remediation, or waste management objectives will be advanced;
    (4) A description of why a waiver will not harm the national 
security interests of the United States;
    (5) The availability of other entities to perform the work;
    (6) A description of alternate means available to satisfy the 
requirement; and
    (7) Evidence that the entity to which a contract is to be awarded is 
controlled by a foreign government with which the Secretary is 
authorized to exchange Restricted Data under Section 144.c. of the 
Atomic Energy Act of 1954 (42 U.S.C. 2164(c)).
    (c) Any request for a waiver under paragraph (a) or (b) of this 
section shall be forwarded by the Head of the Contracting Activity to 
the Office of Contract Management within the Headquarters procurement 
organization.
    (d) If the Secretary decides to grant a waiver for an environmental 
restoration, remediation, or waste management contract, the Secretary 
shall notify Congress of this decision. The contract may be awarded or 
the novation agreement executed only after the end of the 45-day period 
beginning on the date notification is received by the Senate Committee 
on Armed Services and the House Committee on National Security.
    (e) Any request for a waiver under this subpart shall be accompanied 
by the information required by 952.204-73, Facility Clearance that has 
been developed by the Safeguards and Security Lead Responsible Office at 
the contracting activity.

[67 FR 14876, Mar. 28, 2002, as amended at 74 FR 36362, July 22, 2009]



Sec. 904.7103  Solicitation provision and contract clause.

    (a) Any solicitation, including those under simplified acquisition 
procedures, for a contract under the national security program which 
will require acess to proscribed information shall include the provision 
at 952.204-73, Facility Clearance.
    (b) Any contract, including those awarded under simplified 
acquisition procedures, under the national security program which 
require access to proscribed information to enable performance, shall 
include the clause at 952.204-2, Security.

[58 FR 59684, Nov. 10, 1993, as amended at 61 FR 21976, May 13, 1996; 62 
FR 42074, Aug. 5, 1997; 67 FR 14877, Mar. 28, 2002; 74 FR 36362, July 
22, 2009]

                      Subpart 904.72_Public Affairs

    Source: 65 FR 81006, Dec. 22, 2000, unless otherwise noted.



Sec. 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

[[Page 317]]

and appropriate DOE Public Affairs personnel.



Sec. 904.7201  Contract clause.

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

[49 FR 11941, Mar. 28, 1984, as amended at 74 FR 36362, July 22, 2009]

[[Page 318]]

              SUBCHAPTER B_COMPETITION ACQUISITION PLANNING

                  PART 905_PUBLICIZING CONTRACT ACTIONS

                    Subpart 905.5_Paid Advertisements

Sec.

Sec. 905.502 Authority.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

                    Subpart 905.5_Paid Advertisements



Sec. 905.502  Authority.

    (a) Newspapers. When it is deemed necessary to use paid 
advertisements in newspapers and trade journals, written authority for 
such publication shall be obtained from the Head of the Contracting 
Activity or designee.

[49 FR 11943, Mar. 28, 1984]

                    PART 906_COMPETITION REQUIREMENTS

                 Subpart 906.1_Full and Open Competition

Sec.

Sec. 906.102 Use of competitive procedures.

   Subpart 906.2_Full and Open Competition After Exclusion of Sources


Sec. 906.202 Establishing or maintaining alternative sources.

           Subpart 906.3_Other Than Full and Open Competition


Sec. 906.304 Approval of the justification.

                   Subpart 906.5_Competition Advocates


Sec. 906.501 Requirement.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 50 FR 12183, Mar. 27, 1985, unless otherwise noted.

                 Subpart 906.1_Full and Open Competition



Sec. 906.102  Use of competitive procedures.

    (d) Other competitive procedures. (1) Professional architect-
engineer services shall be negotiated in accordance with subpart 936.6 
and 48 CFR subpart 36.6.
    (4) Program research and development announcements shall follow the 
competitive selection procedures for the award of research proposals in 
accordance with subpart 917.73 and 48 CFR part 35.
    (5) Program opportunity notices for commercial demonstrations shall 
follow the competitive selection procedures for award of these proposals 
in accordance with subpart 917.72.

[50 FR 12183, Mar. 27, 1985, as amended at 76 FR 7690, Feb. 11, 2011]

   Subpart 906.2_Full and Open Competition After Exclusion of Sources



Sec. 906.202  Establishing or maintaining alternative sources.

    (b)(1) Every proposed contract action under the authority of 48 CFR 
6.202(a) shall be supported by a determination and finding (D&F) signed 
by the Senior Procurement Executive.

[50 FR 12183, Mar. 27, 1985, as amended at 74 FR 36378, July 22, 2009; 
76 FR 7690, Feb. 11, 2011]

           Subpart 906.3_Other Than Full and Open Competition



Sec. 906.304  Approval of the justification.

    (c) Class justifications within the delegated authority of a Head of 
the Contracting Activity may be approved for:
    (1) Contracts for electric power or energy, gas (natural or 
manufactured), water, or other utility services when such services are 
available from only one source;
    (2) Contracts under the authority cited in 48 CFR 6.302-4 or 6.302-
5; or
    (3) Contracts for educational services from nonprofit institutions. 
Class justifications for classes of actions that

[[Page 319]]

may exceed $10,000,000 require the approval of the Senior Procurement 
Executive.

[50 FR 12183, Mar. 27, 1985, as amended at 74 FR 36378, July 22, 2009; 
76 FR 7690, Feb. 11, 2011]

                   Subpart 906.5_Competition Advocates



Sec. 906.501  Requirement.

    The Secretary of Energy and NNSA Administrator have delegated the 
authority for appointment of the agency and contracting activity 
competition advocates to the respective DOE and NNSA Senior Procurement 
Executives. The Senior Procurement Executives have redelegated authority 
to the Head of the Contracting Activity to appoint contracting activity 
competition advocates.

[76 FR 7690, Feb. 11, 2011]

                           PART 907 [RESERVED]

           PART 908_REQUIRED SOURCES OF SUPPLIES AND SERVICES

       Subpart 908.8_Acquisition of Printing and Related Supplies

Sec.

Sec. 908.802 Policy.

                Subpart 908.11_Leasing of Motor Vehicles


Sec. 908.1102 Presolicitation requirements.

Sec. 908.1102-70 Vehicle leasing.

Sec. 908.1104 Contract clauses.

Sec. 908.1170 Leasing of fuel-efficient vehicles.

               Subpart 908.71_Acquisition of Special Items


Sec. 908.7100 Scope of subpart.

Sec. 908.7101 Motor vehicles.

Sec. 908.7101-1 Scope of section.

Sec. 908.7101-2 Consolidated acquisition of new vehicles by General 
          Services Administration.

Sec. 908.7101-3 Direct acquisition.

Sec. 908.7101-4 Replacement of motor vehicles.

Sec. 908.7101-5 Used vehicles.

Sec. 908.7101-6 Acquisition of fuel-efficient vehicles.

Sec. 908.7101-7 Government license tags.

Sec. 908.7102 Aircraft.

Sec. 908.7103 Office machines.

Sec. 908.7104 Office furniture and furnishings.

Sec. 908.7105 Filing cabinets.

Sec. 908.7106 Security cabinets.

Sec. 908.7107 Procurement and use of industrial alcohol.

Sec. 908.7108 [Reserved]

Sec. 908.7109 Fuels and packaged petroleum products.

Sec. 908.7110 Coal.

Sec. 908.7111 Arms and ammunition.

Sec. 908.7112 Materials handling equipment replacement standards.

Sec. 908.7113 Calibration services.

Sec. 908.7114 Wiretapping and eavesdropping equipment.

Sec. 908.7115 Forms.

Sec. 908.7116 Electronic data processing tape.

Sec. 908.7117 Tabulating machine cards.

Sec. 908.7118 Rental of post office boxes.

Sec. 908.7119-908.7120 [Reserved]

Sec. 908.7121 Special materials.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 11945, Mar. 28, 1984, unless otherwise noted.

       Subpart 908.8_Acquisition of Printing and Related Supplies



Sec. 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 952.208-70, Printing, in all contracts.

[61 FR 41705, Aug. 9, 1996, as amended at 74 FR 36362, July 22, 2009]

                Subpart 908.11_Leasing of Motor Vehicles

    Source: 61 FR 41705, Aug. 9, 1996, unless otherwise noted.



Sec. 908.1102  Presolicitation requirements.



Sec. 908.1102-70  Vehicle leasing.

    (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. All subsequent

[[Page 320]]

lease renewals or extensions may be exercised only when GSA has advised 
that it cannot furnish the vehicle(s) as prescribed herein.

[77 FR 74386, Dec. 14, 2012]



Sec. 908.1104  Contract clauses.

    (f) The clause at 952.208-7, Tagging of Leased Vehicles, shall be 
inserted whenever a vehicle(s) is to be leased over 60 days, except for 
those vehicles exempted by Federal Management Regulation (FMR) 41 CFR 
102-34.160, 102-34.175, and 102-34.180.

[61 FR 41705, Aug. 9, 1996, as amended at 74 FR 36362, July 22, 2009; 77 
FR 74386, Dec. 14, 2012]



Sec. 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



Sec. 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.



Sec. 908.7101  Motor vehicles.



Sec. 908.7101-1  Scope of section.

    Acquisitions by purchase of motor vehicles shall be in accordance 
with this section.



Sec. 908.7101-2  Consolidated acquisition of new vehicles by General 
          Services Administration.

    (a) New vehicles shall be procured in accordance with Federal 
Property Management Regulations (FPMR) 41 CFR 101-26.501, and 41 CFR 
102-1 through 102-220, and Department of Energy Property Management 
Regulations (DOE-PMR) 41 CFR 109-26.501. Orders for all motor vehicles 
must be placed utilizing GSA's online vehicle purchasing system 
(AutoChoice).
    (b) Orders for all motor vehicles shall be submitted utilizing GSA's 
on-line system (Auto Choice), in accordance with FPMR 41 CFR 101-26.501. 
Requisitions for sedans, station wagons, and certain light trucks as 
specified by GSA, should contain a certification that the acquisition is 
in conformance with Pub. L. 94-163, and Executive Order 12003 and 12375 
and subsequent implementations.
    (c) The schedule of dates for submission of orders is contained in 
FPMR 41 CFR 101-26.501-4. The Heads of Contracting Activities shall 
consolidate and submit their requirements for passenger automobiles 
early in the fiscal year. Requisitions for sedans, station wagons and 
certain types of light trucks shall be submitted through Headquarters as 
outlined in 908.7101-6. Requisitions for all other types of vehicles 
shall be submitted directly to GSA.

[49 FR 11945, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984, as amended at 59 
FR 9104, Feb. 25, 1994; 77 FR 74386, Dec. 14, 2012]



Sec. 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, Personal Property Policy Division, within the Headquarters 
procurement organization. In 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

[[Page 321]]

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 
41 CFR 109-26.501-1).

[49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984, as amended at 59 
FR 9104, Feb. 25, 1994; 77 FR 74386, Dec. 14, 2012]



Sec. 908.7101-4  Replacement of motor vehicles.

    (a) The replacement of motor vehicles shall be in accordance with 
the replacement standards prescribed in 41 CFR 102-34.270 and 109-
38.402.
    (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.

[49 FR 11945, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 77 
FR 74386, Dec. 14, 2012]



Sec. 908.7101-5  Used vehicles.

    Normally, DOE does not purchase or authorize contractors to purchase 
used vehicles. However, the 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 41 CFR 109-26.501-50 and 
109-26.501-51, the statutory passenger vehicle allocation requirements 
for DOE shall apply to any purchase of used vehicles except in the case 
of vehicles to be used exclusively for experimental or test purposes.

[49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984, as amended at 59 
FR 9104, Feb. 25, 1994; 77 FR 74386, Dec. 14, 2012]



Sec. 908.7101-6  Acquisition of fuel-efficient vehicles.

    (a) All purchases of sedans and station wagons, and certain types of 
light trucks as specified by GSA, are subject to the requirements of the 
Energy Policy and Conservation Act of 1975 (EPCA), Pub. L. 94-163, and 
of Executive Orders 12003 and 12375 and subsequent implementing 
regulations. Accordingly, the Director of Administration and the Heads 
of Contracting Activities will submit annually to the Director, Personal 
Property Policy Division, within the Headquarters procurement 
organization, for approval, a forecast of plans for the purchase of such 
vehicles during the fiscal year. Such forecast shall be submitted to the 
Property Executive, or designee.
    (b) Approved sedans, station wagons, and light trucks requisitioned, 
but not contracted for by GSA until the subsequent fiscal year, shall be 
included in the acquisition plan for the miles-per-gallon criteria of 
the year in which GSA signs the purchase contract along with the new 
vehicles planned for acquisition that year.

[49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984, as amended at 59 
FR 9104, Feb. 25, 1994; 77 FR 74386, Dec. 14, 2012]



Sec. 908.7101-7  Government license tags.

    (a) Government license tags shall be procured and assignments 
recorded by DOE offices in accordance with 41 CFR 102-34.140.
    (b) The letter ``E'' has been designated as the prefix symbol for 
all DOE official license tags. Assignment of new tag numbers will be 
made by UNICOR via the UNICOR online vehicle license tag ordering data 
base. Contractors must obtain approval from their Federal fleet manager 
or OPMO for authorization to utilize the UNICOR data base. Director, 
Personal Property Policy Division, within the Headquarters procurement 
organization will maintain tag assignment records issued by UNICOR.
    (c) Special license tags for security purposes shall be purchased in 
accordance with state and local laws, regulations, and procedures.
    (d) In the District of Columbia, official Government tags shall be 
obtained

[[Page 322]]

from the Department of Transportation, Motor Vehicles Services Branch, 
District of Columbia, for all motor vehicles (except vehicles exempt for 
security purposes) based or housed in the District.
    (e) See 41 CFR 109-38.202-2 and 109-38.202-3 for additional 
guidance.

[49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984, as amended at 59 
FR 9104, Feb. 25, 1994; 77 FR 74387, Dec. 14, 2012]



Sec. 908.7102  Aircraft.

    Acquisition of aircraft shall be in accordance with 41 CFR 102-33, 
subpart B and DOE Order 440.2B latest revision.

[77 FR 74387, Dec. 14, 2012]



Sec. 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, and DOE-PMR 41 CFR 109-25.302, and 109-25.4.

[49 FR 11945, Mar. 28, 1984, as amended at 77 FR 74387, Dec. 14, 2012]



Sec. 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-
25.302-5, 101-25.302-7, 101-25.404 and 101-26.505, and DOE-PMR 41 CFR 
109-25.302, and 109-25.350.

[49 FR 11945, Mar. 28, 1984, as amended at 77 FR 74387, Dec. 14, 2012]



Sec. 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.

[49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984, as amended at 74 
FR 36362, July 22, 2009]



Sec. 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.
    (b) Fixed-price prime contractors and lower tier subcontractors may 
use GSA acquisition sources for security cabinets in accordance with 48 
CFR part 51.

[49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984, as amended at 74 
FR 36362, July 22, 2009; 76 FR 7691, Feb. 11, 2011]



Sec. 908.7107  Procurement and use of industrial alcohol.

    (a) This section covers the procurement of industrial alcohol by DOE 
or authorized contractors and the applicable policies and delegations of 
authority to submit industrial alcohol user application to procure and 
use tax-free alcohol or specially denatured spirits. To the fullest 
extent practicable, industrial alcohol for use by DOE or its contractors 
shall be procured on a tax-free basis.
    (b) The procurement of tax-free alcohol or specially denatured 
spirits shall be conducted in accordance with the regulations, policy, 
and procedures of the Alcohol and Tobacco Tax and Trade Bureau (TTB), of 
the Department of Treasury. The applicable TTB regulations and forms may 
be accessed at the following Web site: http://www.ttb.gov/foia/
err.shtml#regulations. For further information, contact the Alcohol and 
Tobacco Tax and Trade Bureau, Director, National Revenue Center, 550 
Main St., Suite 8002, Cincinnati, OH 45202-5215 or toll free at 1-877-
882-3277.
    (c) The applying office should coordinate, as necessary, with the 
local State Alcohol Control Board, or its equivalent, to obtain the 
appropriate State license.
    (1) Tax-free alcohol. TTB regulations relating to the procurement 
and use of alcohol free of tax, by Government agencies, are set forth in 
27 CFR part 22, subpart N, Sec.Sec. 22.171 to 22.176.
    (2) Specially denatured spirits. TTB regulations relating to the 
acquisition and use of alcohol free of tax, by Government agencies, are 
set forth in 27 CFR part 20, subpart N, Sec.Sec. 20.241 to 20.245.
    (d) For the user permits to procure and use tax-free alcohol and 
specially denatured spirits submit the application on the TTB Form 
5150.22, ``Application for Industrial Alcohol User Permit,'' (or the 
current TTB form). When permits are no longer required, they should be 
forwarded to the Alcohol and

[[Page 323]]

Tobacco Tax and Trade Bureau for cancellation. Industrial alcohol 
procured by use of the TTB form referred to in this subsection shall be 
used exclusively on DOE work.
    (e) The Senior Procurement Executive (SPE) has the authority to sign 
the TTB application, Form 5150.22. The SPE may delegate this authority 
to sign the application to specifically named DOE personnel. Requests 
for new authorizations or changes to existing authorizations shall be 
submitted by letter to the SPE. A copy of the TTB approved permit shall 
be sent to the SPE.
    (f) 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 the FMR at 41 CFR part 102-41.

[76 FR 7691, Feb. 11, 2011]



Sec. 908.7108  [Reserved]



Sec. 908.7109  Fuels and packaged petroleum products.

    Acquisitions of fuel and packaged petroleum products by DOE offices 
shall be in accordance with FPMR 41 CFR 101-26.602. When contractors are 
authorized, consistent with 951, to acquire such products from Defense 
sources, they shall do so in accordance with FPMR 41 CFR 101-26.602.



Sec. 908.7110  Coal.

    DOE offices and authorized contractors may participate in the 
Defense Fuel Supply Center (DFSC) coal contracting program for carload 
or larger lots. If participation is desired, estimates shall be 
submitted to DFSC in accordance with FPMR 41 CFR 101-26.602.



Sec. 908.7111  Arms and ammunition.

    Pursuant to 10 U.S.C. 4655, the Secretary of the Army is authorized 
to furnish arms, suitable accouterments for use therewith, and 
ammunition for the protection of public money and property.
    (a) The Department of the Army has granted clearance for Federal 
agencies to procure, without further reference to or clearance from that 
Department, all arms and ammunition of types which are not peculiar to 
the military services, and which are readily procurable in the civilian 
market.
    (b) Acquisition of arms and ammunition readily procurable in the 
civilian market shall be made in accordance with regular acquisition 
procedures.
    (c) Acquisition of arms and ammunition which are peculiar to the 
military services shall be made by submission of order form to the 
Commanding General, Headquarters, U.S. Army Materiel Command, 9301 
Chapek Road, Fort Belvoir, VA 22060-5527.

[49 FR 11945, Mar. 28, 1984, as amended at 49 FR 38950, Oct. 2, 1984; 74 
FR 36362, July 22, 2009]



Sec. 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.

[49 FR 11945, Mar. 28, 1984, as amended at 59 FR 9105, Feb. 25, 1994]



Sec. 908.7113  Calibration services.

    Orders for calibration services may be placed with the National 
Institute of Standards and Technology, 100 Bureau Drive, Stop 2300, 
Gaithersburg, MD 20899-2300, by either DOE acquisition offices or its 
authorized contractors. Copies of the letters authorizing contractors to 
order calibration services on behalf of DOE shall be sent to the 
National Institute of Standards and Technology, Attention: ``Calibration 
Services.''

[74 FR 36362, July 22, 2009]



Sec. 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.



Sec. 908.7115  Forms.

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

[[Page 324]]

DOE Guide 242.1-1, DOE Forms Management, for use with DOE Order 200.1, 
Information Management Program.
    (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.

[49 FR 11945, Mar. 28, 1984, as amended at 59 FR 9105, Feb. 25, 1994; 74 
FR 36362, July 22, 2009]



Sec. 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 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.

[49 FR 11945, Mar. 28, 1984, as amended at 59 FR 9105, Feb. 25, 1994]



Sec. 908.7117  Tabulating machine cards.

    DOE offices shall acquire tabulating machine cards in accordance 
with FPMR 41 CFR 101-26.509.



Sec. 908.7118  Rental of post office boxes.

    DOE offices and authorized contractors may rent post office boxes on 
an annual basis, or for shorter periods by quarters, where necessary. 
Payments for annual rentals are to be made in advance at the beginning 
of the fiscal year, and for periods of less than a year, either in 
advance for the whole period or at the beginning of each quarter in 
which the box is to be used.



Sec. 908.7119-908.7120  [Reserved]



Sec. 908.7121  Special materials.

    This section covers the purchase of materials peculiar to the DOE 
program. While purchases of these materials may be unclassified, the 
specific quantities, destination or use may be classified (see 
appropriate sections of the Classification Guide). Contracting officers 
shall require authorized contractors to obtain the special materials 
identified in the following subsections in accordance with the following 
procedures:
    (a) Heavy water. The Senior Program Official or designee controls 
the acquisition and production of heavy water for a given program. 
Request for orders shall be placed directly with the cognizant Senior 
Program Official or designee.
    (b) Precious metals. (1) NNSA, Y-12 National Security Complex in Oak 
Ridge, TN is responsible for maintaining the DOE supply of precious 
metals. These metals are platinum, palladium, iridium, osmium, rhodium, 
ruthenium, gold and silver. The NNSA Y-12 National Security Complex has 
assigned management of these precious metals to its Management and 
Operating (M&O) contractor. DOE and NNSA offices and authorized 
contractors shall coordinate with the Y-12 M&O contractor regarding the 
availability of these metals prior to purchasing in the open market.
    (2) For contractor inventory containing precious metals or 
possessing precious metals excess, see 945.604-1 for contractor 
identification and reporting.
    (c) Lithium. Lithium is available from Y-12 at no cost other than 
normal packing, handling, and shipping charges from Oak Ridge. The 
excess quantities at Y-12 are the first source of supply prior to 
procurement of lithium compounds from any other source.

[77 FR 74387, Dec. 14, 2012]

                   PART 909_CONTRACTOR QUALIFICATIONS

            Subpart 909.1_Responsible Prospective Contractors

Sec.

Sec. 904.104 Standards.

Sec. 909.104-1 General standards.

Sec. 909.104-3 Application of standards.

         Subpart 909.4_Debarment, Suspension, and Ineligibility


Sec. 909.400 Scope of subpart.

[[Page 325]]


Sec. 909.401 Applicability.

Sec. 909.403 Definitions.

Sec. 909.405 Effect of listing.

Sec. 909.406 Debarment.

Sec. 909.406-2 Causes for debarment.

Sec. 909.406-3 Procedures.

Sec. 909.406-70 Requests for reconsideration of debarment.

Sec. 904.407 Suspension.

Sec. 909.407-2 Causes for suspension.

Sec. 909.407-3 Procedures.

    Subpart 909.5_Organizational and Consultant Conflicts of Interest


Sec. 909.503 Waiver.

Sec. 909.504 Contracting officer's responsibility.

Sec. 909.507 Solicitation provisions and contract clause.

Sec. 909.507-1 Solicitation provisions.

Sec. 909.507-2 Contract clause.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 11949, Mar. 28, 1984, unless otherwise noted.

            Subpart 909.1_Responsible Prospective Contractors



Sec. 909.104  Standards.



Sec. 909.104-1  General standards.

    (h) For solicitations for contract work subject to the provisions of 
10 CFR part 707, Workplace Substance Abuse Programs at DOE sites, the 
prospective contractor must agree, in accordancewith 970.5223-3., 
Agreement Regarding Workplace Substance Abuse Programs at DOE Sites, to 
provide the contracting officer with its written workplace substance 
abuse program in order to be determined responsible and, thus, eligible 
to receive the contract award.

[57 FR 32675, July 22, 1992, as amended at 62 FR 42074, Aug. 5, 1997; 65 
FR 81006, Dec. 22, 2000; 74 FR 36362, July 22, 2009]



Sec. 909.104-3  Application of standards.

    (e) Guaranteeing corporate entities. The Department of Energy (DOE) 
may select an entity which was newly created to perform the prospective 
contract, including, but not limited to, a joint venture or other 
similarly binding corporate partnership. In such instances when making 
the determination of responsibility pursuant to 48 CFR 9.103, 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. The guaranteeing 
corporate entity(ies) must be found to have sufficient resources in 
order to satisfy its guarantee.

[64 FR 16651, Apr. 6, 1999, as amended at 74 FR 36362, July 22, 2009]

         Subpart 909.4_Debarment, Suspension, and Ineligibility

    Source: 61 FR 39857, July 31, 1996, unless otherwise noted.



Sec. 909.400  Scope of subpart.

    This subpart--
    (a) Prescribes policies and procedures governing the debarment and 
suspension of organizations and individuals from participating in 
Department of Energy (DOE) and National Nuclear Security Administration 
(NNSA) contracts, procurement sales contracts, and real property 
purchase agreements, and from participating in DOE and, NNSA approved 
subcontracts and subagreements;
    (b) Sets forth the causes, procedures, and requirements for 
determining the scope, duration, and effect of DOE and NNSA debarment 
and suspension actions; and
    (c) Implements and supplements 48 CFR subpart 9.4 with respect to 
the exclusion of organizations and individuals from procurement 
contracting and Government approved subcontracting.

[61 FR 39857, July 31, 1996, as amended at 74 FR 36362, July 22, 2009; 
76 FR 7691, 7692, Feb. 11, 2011]



Sec. 909.401  Applicability.

    The provisions of this subpart apply to all procurement debarment 
and suspension actions initiated by DOE and NNSA on or after the 
effective date of this subpart. Nonprocurement debarment and suspension 
rules are codified in 2 CFR part 901.

[61 FR 39857, July 31, 1996, as amended at 76 FR 7691, Feb. 11, 2011]

[[Page 326]]



Sec. 909.403  Definitions.

    In addition to the definitions set forth at 48 CFR 9.403, the 
following definitions apply to this subpart:
    Debarring and suspending official, for the DOE, the designees are:
    (1) Debarring Official means the Debarring Official for DOE 
contracts is the Director, Office of Procurement and Assistance 
Management, DOE, or designee. The Debarring Official for NNSA contracts 
is the Director, Office of Acquisition and Supply Management, NNSA, or 
designee.
    (2) Suspending Official means the Suspending Official for DOE 
contracts is the Director, Office of Procurement and Assistance 
Management, DOE, or designee. The Suspending Official for NNSA contracts 
is the Director, Office of Acquisition and Supply Management, NNSA, or 
designee.

[69 FR 75003, Dec. 15, 2004, as amended at 74 FR 36362, July 22, 2009; 
76 FR 7692, Feb. 11, 2011]



Sec. 909.405  Effect of listing.

    (e) The Department of Energy may not solicit offers from, award 
contracts to or consent to subcontracts with contractors debarred, 
suspended, or proposed for debarment unless the Senior Procurement 
Executive makes a written determination justifying that there is a 
compelling reason for such action in accordance with 48 CFR 9.405(a). 
For NNSA, the Head of the Contracting Activity (HCA) makes the written 
determination justifying the compelling reason.
    (f) DOE or NNSA may disapprove or not consent to the selection (by a 
contractor) of an individual to serve as a principal investigator, as a 
project manager, in a position of responsibility for the administration 
of Federal funds, or in another key personnel position, if the 
individual is listed in the Excluded Parties List System (EPLS).
    (g) DOE or NNSA shall not conduct business with an agent or 
representative of a contractor if the agent's or representative's name 
is listed in the EPLS.
    (h) DOE or NNSA shall review the EPLS before conducting a pre-award 
survey or soliciting proposals, awarding contracts, renewing or 
otherwise extending the duration of existing contracts, or approving or 
consenting to the award, extension, or renewal of subcontracts.

[76 FR 7691, Feb. 11, 2011]



Sec. 909.406  Debarment.



Sec. 909.406-2  Causes for debarment.

    (c) The DOE and NNSA Debarring Official may debar a contractor for 
any other cause of so serious or compelling a nature that it affects the 
present responsibility of a contractor. Such cause may include but is 
not limited to:
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a private contract or 
subcontract.
    (2) Inexcusable, prolonged, or repeated failure to pay a debt 
(including disallowed costs and overpayments) owed to DOE, provided the 
contractor has been notified of the determination of indebtedness, and 
further provided that the time for initiating any administrative or 
legal action to oppose or appeal the determination of indebtedness has 
expired or that such action, if initiated, has been concluded.
    (d) The Debarring Official may debar a contractor:
    (1) On the basis that an individual or organization is an affiliate 
of a debarred contractor, subject to the requirements of 48 CFR 9.406-
1(b) and 9.406-3(c).
    (2) For failure to observe the material provisions of a voluntary 
exclusion (see 10 CFR 1036.315 for discussion of voluntary exclusion).

[61 FR 39857, July 31, 1996, as amended at 74 FR 36362, July 22, 2009; 
76 FR 7691, Feb. 11, 2011]



Sec. 909.406-3  Procedures.

    (a) Investigation and referral. (1) Offices responsible for the 
award and administration of contracts are responsible for reporting to 
the appropriate Senior Procurement Executive and the DOE Inspector 
General information about possible fraud, waste, abuse, or other 
wrongdoing which may constitute or contribute to a cause(s) for 
debarment under this subpart. Circumstances that involve possible 
criminal or fraudulent activities must

[[Page 327]]

be reported to the Office of the Inspector General in accordance with 10 
CFR part 1010, Conduct of Employees,Sec. 1010.103, Reporting 
Wrongdoing.
    (2) At a minimum, referrals for consideration of debarment action 
should be in writing and should include the following information--
    (i) The recommendation and rationale for the referral;
    (ii) A statement of facts;
    (iii) Copies of documentary evidence and a list of all witnesses, 
including addresses and telephone numbers, together with a statement 
concerning their availability to appear at a fact-finding proceeding and 
the subject matter of their testimony;
    (iv) A list of parties including the contractor, principals, and 
affiliates (including last known home and business addresses, zip codes 
and DUNS Number or other identifying number for an individual);
    (v) DOE's and NNSA's acquisition history with the contractor, 
including recent experience under contracts and copies of pertinent 
contracts;
    (vi) A list of any known active or potential criminal 
investigations, criminal or civil proceedings, or administrative claims 
before the Civilian Board of Contract Appeals or other fact-finding 
body; and
    (vii) A statement regarding the impact of the debarment action on 
DOE and NNSA programs. This statement is not required for referrals by 
the Inspector General.
    (3) Referrals may be returned to the originator for further 
information or development.
    (b) Decisionmaking process. Contractors proposed for debarment shall 
be afforded an opportunity to submit information and argument in 
opposition to the proposed debarment.
    (1) In actions based upon a conviction or civil judgment, or in 
which there is no genuine dispute over material facts, the Debarring 
Official shall make a decision on the basis of all the information in 
the administrative record, including any submissions made by the 
contractor. If the respondent fails to submit a timely written response 
to a notice of proposed debarment, the Debarring Official shall notify 
the respondent in accordance with FAR 9.406-3(e) that the contractor is 
debarred.
    (2) In actions not based upon a conviction or civil judgment, the 
contractor may request a fact-finding hearing to resolve a genuine 
dispute of material fact. In its request, the contractor must identify 
the material facts in dispute and the basis for disputing the facts. If 
the Debarring Official determines that there is a genuine dispute of 
material fact, the Debarring Official shall appoint, and refer the 
matter to, a Fact-Finding Official for a fact-finding conference.
    (3) Meeting. Upon receipt of a timely request from a contractor 
proposed for debarment, the Debarring Official shall schedule a meeting 
between the Debarring Official and the respondent, to be held no later 
than 30 days from the date the request is received. The Debarring 
Official may postpone the date of the meeting if the respondent requests 
a postponement in writing. At the meeting, the respondent, appearing 
personally or through an attorney or other authorized representative, 
may present and explain evidence that causes for debarment do not exist, 
evidence of any mitigating factors, and arguments concerning the 
imposition, scope, or duration of a proposed debarment or debarment.
    (4) Fact-finding conference. The purpose of a fact-finding 
conference under this section is to provide the respondent an 
opportunity to dispute material facts through the submission of oral and 
written evidence; resolve facts in dispute; and provide the Debarring 
Official with findings of fact based, as applicable, on adequate 
evidence or on a preponderance of the evidence. The fact-finding 
conference shall be conducted in accordance with rules consistent with 
48 CFR 9.406-3(b). The Fact-Finding Official will notify the affected 
parties of the schedule for the hearing. The Fact-Finding Official shall 
deliver written findings of fact to the Debarring Official (together 
with a transcription of the proceeding, if made) within a certain time 
period after the hearing record closes as specified by the Fact-Finding 
Official. The findings shall resolve any disputes over

[[Page 328]]

material facts based upon a preponderance of the evidence, if the case 
involves a proposal to debar, or on adequate evidence, if the case 
involves a suspension. Since convictions or civil judgments generally 
establish the cause for debarment by a preponderance of the evidence, 
there usually is no genuine dispute over a material fact that would 
warrant a fact-finding conference for those proposed debarments based on 
convictions or civil judgments.
    (d) Debarring Official's decision. (4) The Debarring Official's 
final decision shall be based on the administrative record. In those 
actions where additional proceedings are necessary as to disputed 
material facts, written findings of fact shall be prepared and included 
in the final decision. In those cases where the contractor has requested 
and received a fact-finding conference, the written findings of fact 
shall be those findings prepared by the Fact-Finding Official. Findings 
of fact shall be final and conclusive unless, within 15 days of receipt 
of the findings, the Department or the respondent requests 
reconsideration, or unless set aside by a court of competent 
jurisdiction. The Fact-Finding Official shall be provided a copy of the 
Debarring Official's final decision.

[61 FR 39857, July 31, 1996, as amended at 76 FR 7691, Feb. 11, 2011]



Sec. 909.406-70  Requests for reconsideration of debarment.

    (a) At any time during a period of debarment, a respondent may 
submit to the Debarring or Suspending Official a written request for 
reconsideration of the scope, duration, or effects of the suspension/
debarment action because of new information or changed circumstances, as 
discussed at 48 CFR 9.406-4(c).
    (b) In reviewing a request for reconsideration, the Debarring or 
Suspending Official may, in his or her discretion, utilize any of the 
procedures (meeting and fact-finding) set forth in 909.406-3 and 
909.407-3. The Debarring or Suspending Official's final disposition of 
the reconsideration request shall be in writing and shall set forth the 
reasons why the request has been granted or denied. A notice 
transmitting a copy of the disposition of the request for 
reconsideration shall be sent to the respondent.

[61 FR 39857, July 31, 1996, as amended at 74 FR 36362, July 22, 2009; 
76 FR 7692, Feb. 11, 2011]



Sec. 909.407  Suspension.



Sec. 909.407-2  Causes for suspension.

    (d) The Suspending Official may suspend an organization or 
individual--
    (1) Indicted for or suspected, upon adequate evidence, of the causes 
described in 909.406-2(c)(1);
    (2) On the basis of the causes set forth in 909.406-2(d)(2); or
    (3) On the basis that an organization or individual is an affiliate 
of a suspended or debarred contractor.

[61 FR 39857, July 31, 1996, as amended at 74 FR 36363, July 22, 2009]



Sec. 909.407-3  Procedures.

    (b) Decisionmaking process. (1) In actions based on an indictment, 
the Suspending Official shall make a decision based upon the 
administrative record, which shall include submissions made by the 
contractor in accordance with 909.406-3(b)(1) and 909.406-3(b)(3).
    (2) For actions not based on an indictment, the procedures in 
909.406-3(b)(2) and 48 CFR 9.407-3(b)(2) apply.
    (3) Coordination with Department of Justice. Whenever a meeting or 
fact-finding conference is requested, the Suspending Official's legal 
representative shall obtain the advice of appropriate Department of 
Justice officials concerning the impact disclosure of evidence at the 
meeting or fact-finding conference could have on any pending civil or 
criminal investigation or legal proceeding. If such Department of 
Justice official requests in writing that evidence needed to establish 
the existence of a cause for suspension not be disclosed to the 
respondent, the Suspending Official shall--
    (i) Decline to rely on such evidence and withdraw (without 
prejudice) the suspension or proposed debarment until such time as 
disclosure of the evidence is authorized; or
    (ii) Deny the request for a meeting or fact-finding and base the 
suspension decision solely upon the information in the administrative 
record, including

[[Page 329]]

any submission made by the respondent.
    (e) Notice of suspending official's decision. In actions in which 
additional proceedings have been held, following such proceedings, the 
Suspending Official shall notify respondent, as applicable, in 
accordance with paragraphs (e)(1) or (e)(2) of this section.
    (1) Upon deciding to sustain a suspension, the Suspending Official 
shall promptly send each affected respondent a notice containing the 
following information:
    (i) A reference to the notice of suspension, the meeting and the 
fact-finding conference;
    (ii) The Suspending Official's findings of fact and conclusions of 
law;
    (iii) The reasons for sustaining a suspension;
    (iv) A reference to the Suspending Official's waiver authority under 
909.405;
    (v) A statement that the suspension is effective throughout the 
Executive Branch as provided in 48 CFR 9.407-1(d);
    (vi) Modifications, if any, of the initial terms of the suspension;
    (vii) A statement that the respondent's name and address will be 
added to the EPLS; and
    (viii) If less than an entire organization is suspended, 
specification of the organizational element(s) or individual(s) included 
within the scope of the suspension.
    (2) If the Suspending Official decides to terminate a suspension, 
the Suspending Official shall promptly send, by certified mail, return 
receipt requested, each affected respondent a copy of the final decision 
required under this section.

[61 FR 39857, July 31, 1996; 61 FR 41684, Aug. 9, 1996, as amended at 74 
FR 36363, July 22, 2009; 76 FR 7692, Feb. 11, 2011]

    Subpart 909.5_Organizational and Consultant Conflicts of Interest

    Source: 62 FR 40751, July 30, 1997, unless otherwise noted.



Sec. 909.503  Waiver.

    Heads of Contracting Activities are delegated the authorities in 48 
CFR 9.503 regarding the waiver of organizational and consultant 
conflicts of interest requirements.

[74 FR 36363, July 22, 2009]



Sec. 909.504  Contracting officer's responsibility.

    (d) The contracting officer shall evaluate the statement by the 
apparent successful offeror or, where individual contracts are 
negotiated with all firms in the competitive range, all such firms for 
interests relating to a potential organizational conflict of interest in 
the performance of the proposed contract. Using that information and any 
other credible information, the contracting officer shall make written 
determination of whether those interests create an actual or significant 
potential organizational conflict of interest and identify any actions 
that may be taken to avoid, neutralize, or mitigate such conflict. In 
fulfilling their responsibilities for identifying and resolving 
potential conflicts, contracting officers should avoid creating 
unnecessary delays, burdensome information requirements, and excessive 
documentation.
    (e) The contracting officer shall award the contract to the apparent 
successful offeror unless a conflict of interest is determined to exist 
that cannot be avoided, neutralized, or mitigated. Before determining to 
withold award based on organizational conflict of interest 
considerations, the contracting officer shall notify the offeror, 
provide the reasons therefor, and allow the offeror a reasonable 
opportunity to respond. If the conflict of interest cannot be avoided, 
neutralized, or mitigated to the contracting officer's satisfaction, the 
contracting officer may disqualify the offeror from award and undertake 
the disclosure, evaluation, and determination process with the firm next 
in line for award. If the contracting officer finds that it is in the 
best interest of the United States to award the contract notwithstanding 
a conflict of interest, a request for waiver shall be submitted in 
accordance with 909.503. The waiver request and decisions shall be 
included in the contract file.

[62 FR 40751, July 30, 1997, as amended at 74 FR 36363, July 22, 2009]

[[Page 330]]



Sec. 909.507  Solicitation provisions and contract clause.



Sec. 909.507-1  Solicitation provisions.

    (e) The contracting officer shall insert the provision at 952.209-8, 
Organizational Conflicts of Interest Disclosure-Advisory and Assistance 
Services, in solicitations for advisory and assistance services expected 
to exceed the simplified acquisition threshold. In individual 
procurements, the Head of the Contracting Activity may increase the 
period subject to disclosure in 952.209-8 (c)(1) up to 36 months.

[62 FR 40751, July 30, 1997, as amended at 74 FR 36363, July 22, 2009]



Sec. 909.507-2  Contract clause.

    (a)(1) The contracting officer shall insert the clause at 952.209-
72, Organizational Conflicts of Interest, in each solicitation and 
contract for advisory and assistance services expected to exceed the 
simplified acquisition threshold.
    (2) Contracting officers may make appropriate modifications where 
necessary to address the potential for organizational conflicts of 
interest in individual contracts. Contracting officers shall determine 
the appropriate term of the bar of paragraph (b)(1)(i) of the clause at 
952.209-72 and enter that term in the blank provided. In the usual case 
of a contract for advisory and assistance services a period of three, 
four, or five years is appropriate; however, in individual cases the 
contracting officer may insert a term of greater or lesser duration.
    (3) The contracting officer shall include Alternate I with the 
clause in instances in which a meaningful amount of subcontracting for 
advisory and assistance services is expected.
    (b) Contracts, which are not subject to part 970 but provide for the 
operation of a DOE site or facility or environmental remediation of a 
specific DOE site or sites, shall contain the organizational conflict of 
interest clause at 952.209-72. The organizational conflicts of interest 
clause in such contracts shall include Alternate I to that clause.

[62 FR 40751, July 30, 1997, as amended at 74 FR 36363, July 22, 2009]

                    PART 911_DESCRIBING AGENCY NEEDS

                Subpart 911.6_Priorities and Allocations

Sec.

Sec. 911.600 Scope of subpart.

Sec. 911.602 General.

Sec. 911.604 Solicitation provision and contract clause.

    Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 et 
seq.; 50 U.S.C. 2401 et seq.

                Subpart 911.6_Priorities and Allocations



Sec. 911.600  Scope of subpart.

    This subpart implements and supplements 48 CFR part subpart 11.6, 
Priorities and Allocations, and implements the regulations and 
procedures of the Defense Priorities and Allocations System (DPAS) in 
solicitations and contracts in support of authorized national defense 
programs. (See 15 CFR part 700).

[52 FR 38422, Oct. 16, 1987, as amended at 59 FR 9105, Feb. 25, 1994. 
Redesignated and amended at 61 FR 21976, May 13, 1996; 61 FR 30823, June 
18, 1996; 73 FR 10985, Feb. 29, 2008; 76 FR 7692, Feb. 11, 2011]



Sec. 911.602  General.

    (e) The Heads of Contracting Activities shall ensure that members of 
their staffs and contractors under their jurisdiction are advised of the 
provisions of the DPAS regulation and that the related procedures are 
followed to ensure adherence to the regulation throughout the industrial 
supply chain. Under DPAS, it is mandatory that the priority rating be 
extended through the industrial chain from supplier to supplier.

[52 FR 38422, Oct. 16, 1987, as amended at 59 FR 9105, Feb. 25, 1994. 
Redesignated at 61 FR 21976, May 13, 1996, as amended at 73 FR 10985, 
Feb. 29, 2008]



Sec. 911.604  Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 952.211-
70, Priorities and Allocations (Atomic Energy), in solicitations that 
will result in the placement of rated orders for authorized DOE atomic 
energy programs.

[[Page 331]]

    (b) The contracting officer shall insert the clause at 952.211-71, 
Priorities and Allocations (Atomic Energy), in contracts that are placed 
in support of authorized DOE atomic energy programs.
    (c) The use of the provisions at 952.211-70 and the clause at 
952.211-71 is optional for industrial delivery orders of $5,000 or less.

[52 FR 38422, Oct. 16, 1987, as amended at 59 FR 9105, Feb. 25, 1994. 
Redesignated and amended at 61 FR 21976, May 13, 1996; 65 FR 81006, Dec. 
22, 2000; 73 FR 10985, Feb. 29, 2008; 74 FR 36363, July 22, 2009]

                PART 912_ACQUISITION OF COMMERCIAL ITEMS

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

   Subpart 912.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 912.302  Tailoring of provisions and clauses for the acquisition of 
          commercial items.

    (c) The waiver required by 48 CFR 12.302(c) shall be in writing and 
approved by the local procurement manager or individual appointed for 
that purpose by the local procurement manager.

[74 FR 36363, July 22, 2009]

[[Page 332]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 913_SIMPLIFIED ACQUISITION PROCEDURES

              Subpart 913.3_Simplified Acquisition Methods

Sec.

Sec. 913.307 Forms.

Subpart 913.4 [Reserved]

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 67 FR 14871, Mar. 28, 2002, unless otherwise noted.

              Subpart 913.3_Simplified Acquisition Methods



Sec. 913.307  Forms.

    (b) Optional Forms 347 and 348, or DOE F 4250.3, may be used for 
purchase orders using simplified acquisition procedures. These forms 
shall not be used as the contractor's invoice. See 48 CFR 12.204 
regarding the use of SF-1449 for the acquisition of commercial items 
using simplified acquisition procedures.

Subpart 913.4 [Reserved]

                         PART 914_SEALED BIDDING

           Subpart 914.4_Opening of Bids and Award of Contract

Sec.

Sec. 914.404 Rejection of bids.

Sec. 914.404-1 Cancellation of invitations after opening.

Sec. 914.407 Mistakes in bids.

Sec. 914.407-3 Other mistakes disclosed before award.

Sec. 914.407-4 Mistakes after award.

Sec. 914.409-2 Award of classified contracts.

                  Subpart 914.5_Two-Step Sealed Bidding


Sec. 914.502 Conditions for use.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 11954, Mar. 28, 1984, unless otherwise noted.

           Subpart 914.4_Opening of Bids and Award of Contract



Sec. 914.404  Rejection of bids.



Sec. 914.404-1  Cancellation of invitations after opening.

    (c) The Senior Procurement Executives have been delegated authority 
to make the determination under 48 CFR 14.404-1(c) and (e) and has 
redelegated this authority to the Heads of Contracting Activities 
without power of redelegation.

[50 FR 12184, Mar. 27, 1985, as amended at 74 FR 36363, July 22, 2009; 
76 FR 7692, Feb. 11, 2011]



Sec. 914.407  Mistakes in bids.



Sec. 914.407-3  Other mistakes disclosed before award.

    (e) Pursuant to 48 CFR 14.407-3(e), the Senior Procurement 
Executives have been delegated authority by the Secretary to make the 
determinations under 48 CFR 14.407-3. In the case of mistakes in bids 
alleged after opening of bids and before award, the Senior Procurement 
Executives have redelegated this authority to the Heads of Contracting 
Activities without power of redelegation and to make administrative 
determinations regarding withdrawal of bids as provided for in 48 CFR 
14.407-3, providing that each such determination shall be approved by 
Legal Counsel.

[49 FR 11954, Mar. 28, 1984, as amended at 56 FR 41964, Aug. 26, 1991; 
59 FR 9105, Feb. 25, 1994. Redesignated and amended at 67 FR 14871, Mar. 
28, 2002; 74 FR 36363, July 22, 2009; 76 FR 7692, Feb. 11, 2011]



Sec. 914.407-4  Mistakes after award.

    The Senior Procurement Executives have been delegated authority to 
make the determinations under 48 CFR 14.407-4. Mistakes in bids after 
award, together with the data set forth in 48 CFR 14.407-4(e), shall be 
submitted to

[[Page 333]]

the appropriate Senior Procurement Executive for decision.

[49 FR 11954, Mar. 28, 1984. Redesignated and amended at 67 FR 14871, 
Mar. 28, 2002; 74 FR 36363, July 22, 2009; 76 FR 7692, Feb. 11, 2011]



Sec. 914.409-2  Award of classified contracts.

    DOE regulations regarding the safeguarding of restricted data and 
procedures for its destruction are contained at 10 CFR part 1016.

[49 FR 11954, Mar. 28, 1984, as amended at 59 FR 9105, Feb. 25, 1994. 
Redesignated at 74 FR 36363, July 22, 2009]

                  Subpart 914.5_Two-Step Sealed Bidding



Sec. 914.502  Conditions for use.

    (c) Use of the two-step sealed bidding method shall be approved by 
the Head of the Contracting Activity. The contracting officer shall 
submit a written request for approval justifying its use in accordance 
with 48 CFR 14.502.

[50 FR 12184, Mar. 27, 1985, as amended at 76 FR 7692, Feb. 11, 2011]

                   PART 915_CONTRACTING BY NEGOTIATION

   Subpart 915.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 915.200 Scope of subpart.

Sec. 915.201 Exchanges with industry before receipt of proposals.

Sec. 915.207 Handling proposals and information.

Sec. 915.207-70 Handling of proposals during evaluation.

                     Subpart 915.3_Source Selection


Sec. 915.305 Proposal evaluation.

                     Subpart 915.4_Contract Pricing


Sec. 915.404 Proposal analysis.

Sec. 915.404-2 Information to support proposal analysis.

Sec. 915.404-2-70 Audit as an aid in proposal analysis.

Sec. 915.404-4 Profit.

Sec. 915.404-4-70 DOE structured profit and fee system.

Sec. 915.404-4-70-1 General.

Sec. 915.404-4-70-2 Weighted guidelines system.

Sec. 915.404-4-70-3 Documentation.

Sec. 915.404-4-70-4 Exceptions.

Sec. 915.404-4-70-5 Special considerations--contracts with nonprofit 
          organizations (other than educational institutions).

Sec. 915.404-4-70-6 Contracts with educational institutions.

Sec. 915.404-4-70-7 Alternative techniques.

Sec. 915.404-4-70-8 Weighted guidelines application considerations.

Sec. 915.404-4-71 Profit and fee-system for construction and 
          construction management contracts.

Sec. 915.404-4-71-1 General.

Sec. 915.404-4-71-2 Limitations.

Sec. 915.404-4-71-3 Factors for determining fees.

Sec. 915.404-4-71-4 Considerations affecting fee amounts.

Sec. 915.404-4-71-5 Fee schedules.

Sec. 915.404-4-71-6 Fee base.

Sec. 915.404-4-72 Special considerations for cost-plus-award-fee 
          contracts.

Sec. 915.408 Solicitation provisions and contract clauses.

Sec. 915.408-70 Solicitation provision and contract clause.

                   Subpart 915.6_Unsolicited Proposals


Sec. 915.602 Policy.

Sec. 915.603 General.

Sec. 915.605 Content of unsolicited proposals.

Sec. 915.606 Agency procedures.

Sec. 915.607 Criteria for acceptance and negotiation of an unsolicited 
          proposal.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 63 FR 56851, Oct. 23, 1998, unless otherwise noted.

   Subpart 915.2_Solicitation and Receipt of Proposals and Information



Sec. 915.200  Scope of subpart.

    The 48 CFR subpart 15.2 is not applicable to Program Opportunity 
Notices for Commercial Demonstrations (See subpart 917.72) or Program 
Research and Development Announcements (See subpart 917.73).

[74 FR 36363, July 22, 2009]



Sec. 915.201  Exchanges with industry before receipt of proposals.

    (e) Approval for the use of solicitations for information or 
planning purposes shall be obtained from the Head of the Contracting 
Activity.

[[Page 334]]



Sec. 915.207  Handling proposals and information.



Sec. 915.207-70  Handling proposals and information during evaluation.

    (a) Proposals furnished to the Government are to be used for 
evaluation purposes only. Disclosure outside the Government for 
evaluation is permitted only to the extent authorized by, and in 
accordance with, the procedures in this subsection.
    (b) While the Government's limited use of proposals does not require 
that the proposal bear a restrictive notice, proposers should, if they 
desire to maximize protection of their trade secrets or confidential or 
privileged commercial and financial information contained in them, apply 
the restrictive notice prescribed in paragraph (e) of the provision at 
48 CFR 52.215-1 to such information. In any event, information contained 
in proposals will be protected to the extent permitted by law, but the 
Government assumes no liability for the use or disclosure of information 
(data) not made subject to such notice in accordance with paragraph (e) 
of the provision at 48 CFR 52.215-1.
    (c) If proposals are received with more restrictive conditions than 
those in paragraph (e) of the provision at 48 CFR 52.215-1, the 
contracting officer or coordinating officer shall inquire whether the 
submitter is willing to accept the conditions of paragraph (e). If the 
submitter does not, the contracting officer or coordinating officer 
shall, after consultation with counsel, either return the proposal or 
accept it as marked. Contracting officers shall not exclude from 
consideration any proposals merely because they contain an authorized or 
agreed to notice, nor shall they be prejudiced by such notice.
    (d) Release of proposal information (data) before decision as to the 
award of a contract, or the transfer of valuable and sensitive 
information between competing offerors during the competitive phase of 
the acquisition process, would seriously disrupt the Government's 
decision-making process and undermine the integrity of the competitive 
acquisition process, thus adversely affecting the Government's ability 
to solicit competitive proposals and award a contract which would best 
meet the Government's needs and serve the public interest. Therefore, to 
the extent permitted by law, none of the information (data) contained in 
proposals, except as authorized in this subsection, is to be disclosed 
outside the Government before the Government's decision as to the award 
of a contract. In the event an outside evaluation is to be obtained, it 
shall be only to the extent authorized by, and in accordance with the 
procedures of, this subsection.
    (e)(1) In order to maintain the integrity of the procurement process 
and to assure that the propriety of proposals will be respected, 
contracting officers shall assure that the following notice is affixed 
to each solicited proposal prior to distribution for evaluation:

                Government Notice for Handling Proposals

    This proposal shall be used and disclosed for evaluation purposes 
only, and a copy of this Government notice shall be applied to any 
reproduction or abstract thereof. Any authorized restrictive notices 
which the submitter places on this proposal shall also be strictly 
complied with. Disclosure of this proposal outside the Government for 
evaluation purposes shall be made only to the extent authorized by, and 
in accordance with, the procedures in DEAR subsection 915.207-70.

                             (End of notice)

    (2) The notice at 48 CFR 15.609(d) for unsolicited proposals shall 
be affixed to a cover sheet attached to each such proposal upon receipt 
by DOE. Use of the notice neither alters any obligation of the 
Government, nor diminishes any rights in the Government to use or 
disclose data or information.
    (f)(1) Normally, evaluations of proposals shall be performed only by 
employees of the Department of Energy. As used in this section, 
``proposals'' includes the offers in response to requests for proposals, 
sealed bids, program opportunity announcements, program research and 
development announcements, or any other method of solicitation where the 
review of proposals or bids is to be performed by other than peer 
review. In certain cases, in order to gain necessary expertise, 
employees of other agencies may be used in instances in which they will

[[Page 335]]

be available and committed during the period of evaluation. Evaluators 
or advisors who are not Federal employees, including employees of DOE 
management and operating contractors, may be used where necessary. Where 
such non-Federal employees are used as evaluators, they may only 
participate as members of technical evaluation committees. They may not 
serve as members of the Source Evaluation Board or equivalent board or 
committee.
    (2)(i) Pursuant to section 6002 of Pub. L. 103-355, a determination 
is required for every competitive procurement as to whether sufficient 
DOE personnel with the necessary training and capabilities are available 
to evaluate the proposals that will be received. This determination, 
discussed at 48 CFR 37.204, shall be made in the memorandum appointing 
the technical evaluation committee by the Source Selection Official, in 
the case of Source Evaluation Board procurements, or by the Contracting 
Officer in all other procurements.
    (ii) Where it is determined such qualified personnel are not 
available within DOE but are available from other Federal agencies, a 
determination to that effect shall be made by the same officials in the 
same memorandum. Should such qualified personnel not be available, a 
determination to use non-Federal evaluators or advisors must be made in 
accordance with paragraph (f)(3) of this subsection.
    (3) The decision to employ non-Federal evaluators or advisors, 
including employees of DOE management and operating contractors, in 
Source Evaluation Board procurements must be made by the Source 
Selection Official with the concurrence of the Head of the Contracting 
Activity. In all other procurements, the decision shall be made by the 
senior program official or designee with the concurrence of the Head of 
the Contracting Activity. In a case where multiple solicitations are 
part of a single program and would call for the same resources for 
evaluation, a class determination to use non-Federal evaluators may be 
made by the Senior Procurement Executive.
    (4) Where such non-Federal evaluators or advisors are to be used, 
the solicitation shall contain a provision informing prospective 
offerors that non-Federal personnel may be used in the evaluation of 
proposals.
    (5) The nondisclosure agreement as it appears in paragraph (f)(6) of 
this subsection shall be signed before DOE furnishes a copy of the 
proposal to non-Federal evaluators or advisors, and care should be taken 
that the required handling notice described in paragraph (e) of this 
subsection is affixed to a cover sheet attached to the proposal before 
it is disclosed to the evaluator or advisor. In all instances, such 
persons will be required to comply with nondisclosure of information 
requirements and requirements involving Procurement Integrity, see 48 
CFR 3.104; with requirements to prevent the potential for personal 
conflicts of interest; or, where a non-Federal evaluator or advisor is 
acquired under a contract with an entity other than the individual, with 
requirements to prevent the potential for organizational conflicts of 
interest.
    (6) Non-Federal evaluators or advisors shall be required to sign the 
following agreement prior to having access to any proposal:

                         Nondisclosure Agreement

    Whenever DOE furnishes a proposal for evaluation, I, the recipient, 
agree to use the information contained in the proposal only for DOE 
evaluation purposes and to treat the information obtained in confidence. 
This requirement for confidential treatment does not apply to 
information obtained from any source, including the proposer, without 
restriction. Any notice or restriction placed on the proposal by either 
DOE or the originator of the proposal shall be conspicuously affixed to 
any reproduction or abstract thereof and its provisions strictly 
complied with. Upon completion of the evaluation, it is agreed all 
copies of the proposal and abstracts, if any, shall be returned to the 
DOE office which initially furnished the proposal for evaluation. Unless 
authorized by the Contracting Officer, I agree that I shall not contact 
the originator of the proposal concerning any aspect of its elements.

Recipient:______________________________________________________________

Date:___________________________________________________________________

[[Page 336]]

                           (End of agreement)

    (g) The submitter of any proposal shall be provided notice adequate 
to afford an opportunity to take appropriate action before release of 
any information (data) contained therein pursuant to a request under the 
Freedom of Information Act (5 U.S.C. 552); and, time permitting, the 
submitter should be consulted to obtain assistance in determining the 
eligibility of the information (data) in question as an exemption under 
the Act. (See also 48 CFR 24.2, Freedom of Information Act.)

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36363, July 22, 2009; 
76 FR 7693, Feb. 11, 2011]

                     Subpart 915.3_Source Selection



Sec. 915.305  Proposal evaluation.

    (d) Personnel from DOE, other Government agencies, consultants, and 
contractors, including those who manage or operate Government-owned 
facilities, may be used in the evaluation process as evaluators or 
advisors when their services are necessary and available. When personnel 
outside the Government, including those of contractors who operate or 
manage Government-owned facilities, are to be used as evaluators or 
advisors, approval and nondisclosure procedures as required by 915.207-
70 shall be followed and a notice of the use of non-Federal evaluators 
shall be included in the solicitation. In all instances, such personnel 
will be required to comply with DOE conflict of interest and 
nondisclosure requirements.

[63 FR 56851, Oct. 23, 1998, as amended at 76 FR 7692, Feb. 11, 2011]

                     Subpart 915.4_Contract Pricing



Sec. 915.404  Proposal analysis.



Sec. 915.404-2  Information to support proposal analysis.

    (a)(1) Field pricing assistance as discussed in 48 CFR 15.404-2(a) 
is not required for the negotiation of DOE contract prices or 
modifications thereof. The term ``field pricing assistance'' refers to 
the Department of Defense (DOD) system for obtaining a price and/or cost 
analysis report from a cognizant DOD field level contract management 
office wherein requests for the review of a proposal submitted by an 
offeror are initiated and the recommendations made by the various 
specialists of the management office are consolidated into a single 
report that is forwarded to the office making the contract award for use 
in conducting negotiations. In the DOE, such review activities, except 
for reviews performed by professional auditors, are expected to be 
accomplished by pricing support personnel located in DOE Contracting 
Activities. The DOE contracting officer shall formally request the 
assistance of appropriate pricing support personnel, other than 
auditors, for the review of any proposal that exceeds the threshold 
stated at 48 CFR 15.403-4(a)(1), unless the contracting officer has 
sufficient data to determine the reasonableness of the proposed cost or 
price. Such pricing support may be requested for proposals below the 
threshold stated at 48 CFR 15.403-4(a)(1), if considered necessary for 
the establishment of a reasonable pricing arrangement. Contracting 
officers, however, are not precluded by this section from requesting 
pricing assistance from a cognizant DOD contract management office, 
provided an appropriate cross-servicing arrangement for pricing support 
services exists between the DOE and the servicing agency.
    (c)(1) When an audit is required pursuant to 915.404-2-70, ``Audit 
as an aid in proposal analysis,'' the request for audit shall be sent 
directly to the Federal audit office assigned cognizance of the offeror 
or prospective contractor. When the cognizant agency is other than the 
Defense Contract Audit Agency or the Department of Health and Human 
Services, and an appropriate interagency agreement has not been 
established, the need for audit assistance shall be coordinated with the 
Office of Policy, within the Headquarters procurement organization.
    (2)(i) The request for audit shall establish the due date for 
receipt of the auditor's report and in so doing shall allow as much time 
as possible for the auditor's review.
    (ii) Copies of technical analysis reports prepared by DOE technical 
or other pricing support personnel shall

[[Page 337]]

not normally be provided to the auditor. The contracting officer or the 
supporting price, cost, or financial analyst at the contracting activity 
shall determine the monetary impact of the technical findings.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36363, July 22, 2009; 
76 FR 7692, 7693, Feb. 11, 2011]



Sec. 915.404-2-70  Audit as an aid in proposal analysis.

    (a) When a contract price will be based on cost or pricing data 
submitted by the offerors, the DOE contracting officer or authorized 
representative shall request a review by the cognizant Federal audit 
activity prior to the negotiation of any contract or modification 
including modifications under advertised contracts in excess of--
    (1) The threshold stated at 48 CFR 15.403-4(a)(1) for a firm fixed-
price contract or a fixed-price contract with economic price adjustment 
provisions; or adjustment provisions; or
    (2) Twice the threshold at 48 CFR 15.403-4(a)(1) for requiring cost 
or pricing data for all other contract types, including initial prices, 
estimated costs of cost-reimbursement contracts, interim and final price 
redeterminations, and target and settlement of incentive contracts.
    (b) The requirement for auditor reviews of proposals which exceed 
the thresholds specified in paragraph (a) of this section may be waived 
at a level above the contracting officer when the reasonableness of the 
negotiated contract price can be determined from information already 
available. The contract file shall be documented to reflect the reason 
for any such waiver, provided, however, that independent Government 
estimates of cost or price shall not be used as the sole justification 
for any such waiver.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36363, July 22, 2009; 
76 FR 7692, Feb. 11, 2011]



Sec. 915.404-4  Profit.

    (c)(4)(i) Contracting officer responsibilities. The statutory 
limitations on price and fee as set forth in 48 CFR 15.404-4(c)(4)(i) 
shall be followed, except as exempted for DOE architect-engineer 
contracts covering Atomic Energy Commission (AEC) and Bonneville Power 
Administration (BPA) functions. Pursuant to section 602(d) (13) and (20) 
of the Federal Property and Administration Services Act of 1949, as 
amended, those former AEC functions, as well as those of the BPA, now 
being performed by DOE are exempt from the 6 percent of cost restriction 
on contracts for architect-engineer services. The estimated costs on 
which the maximum fee is computed shall include facilities capital cost 
of money when this cost is included in cost estimates.
    (c)(6) In cases where a change or modification calls for 
substantially different work than the basic contract, the contractor's 
effort may be radically changed and a detailed analysis of the profit 
factors would be a necessity. Also, if the dollar amount of the change 
or contract modification is very significant in comparison to the 
contract dollar amount, a detailed analysis should be made.
    (d) Profit-analysis factors. A profit/fee analysis technique 
designed for a systematic application of the profit factors in 48 CFR 
15.404-4(d) provides contracting officers with an approach that will 
ensure consistent consideration of the relative value of the various 
factors in the establishment of a profit objective and the conduct of 
negotiations for a contract award. It also provides a basis for 
documentation of this objective, including an explanation of any 
significant departure from it in reaching a final agreement. The 
contracting officer's analysis of these prescribed factors is based on 
information available prior to negotiations. Such information is 
furnished in proposals, audit data, performance reports, preaward 
surveys and the like.

[63 FR 56851, Oct. 23, 1998, as amended at 76 FR 7692, 7693 Feb. 11, 
2011]



Sec. 915.404-4-70  DOE structured profit and fee system.

    This section implements 48 CFR 15.404-4(b) and (d).

[63 FR 56851, Oct. 23, 1998, as amended at 76 FR 7693, Feb. 11, 2011]



Sec. 915.404-4-70-1  General.

    (a) Objective. It is the intent of DOE to remunerate contractors for 
financial

[[Page 338]]

and other risks which they may assume, resources they use, and 
organization, performance and management capabilities they employ. 
Profit or fee shall be negotiated for this purpose; however, when profit 
or fee is determined as a separate element of the contract price, the 
aim of negotiation should be to fit it to the acquisition, giving due 
weight to effort, risk, facilities investment, and special factors as 
set forth in this subpart.
    (b) Commercial (profit) organization. Profit or fee prenegotiation 
objectives for contracts with commercial (profit) organizations shall be 
determined as provided in this subpart.
    (c) Nonprofit organizations. It is DOE's general policy to pay fees 
in contracts with nonprofit organizations other than educational 
institutions and governmental bodies; however, it is a matter of 
negotiation whether a fee will be paid in a given case. In making this 
decision, the DOE negotiating official should consider whether the 
contractor is ordinarily paid fees for the type of work involved. The 
profit objective should be reasonable in relation to the task to be 
performed and the requirements placed on the contractor.
    (d) Educational institutions. It is DOE policy not to pay fees under 
contracts with educational institutions.
    (e) State, local and Indian tribal governments. Profit or fee shall 
not be paid under contracts with State, local, and Indian tribal 
Governments.



Sec. 915.404-4-70-2  Weighted guidelines system.

    (a) To properly reflect differences among contracts and the 
circumstances relating thereto and to select an appropriate relative 
profit/fee in consideration of these differences and circumstances, 
weightings have been developed for application by the contracting 
officer to standard measurement bases representative of the prescribed 
profit factors cited in 48 CFR 15.404-4(d) and paragraph (d) of this 
section. This is a structured system, referred to as weighted 
guidelines. Each profit factor or subfactor, or component thereof, has 
been assigned weights relative to their value to the contract's overall 
effort. The range of weights to be applied to each profit factor is also 
set forth in paragraph (d) of this section. Guidance on how to apply the 
weighted guidelines is set forth in 915.404-4-70-8.
    (b) Except as set forth in 915.404-4-70-4, the weighted guidelines 
shall be used in establishing the profit objective for negotiation of 
contracts where cost analysis is performed.
    (c) The negotiation process does not contemplate or require 
agreement on either estimated cost elements or profit elements. 
Accordingly, although the details of analysis and evaluation may be 
discussed in the fact-finding phase of the negotiation process in order 
to develop a mutual understanding of the logic of the respective 
positions, specific agreement on the exact weights of values of the 
individual profit factors is not required and need not be attempted.
    (d) The factors set forth in the following table are to be used in 
determining DOE profit objectives. The factors and weight ranges for 
each factor shall be used in all instances where the weighted guidelines 
are applied.

------------------------------------------------------------------------
               Profit factors                   Weight ranges (percent)
------------------------------------------------------------------------
I. Contractor Effort (Weights applied to
 cost):
  a. Material acquisitions:
    (1) Purchased parts.....................  1 to 3.
    (2) Subcontracted items.................  1 to 4.
    (3) Other materials.....................  1 to 3.
  b. Labor skills:
    (1) Technical and managerial:
        (a) Scientific......................  10 to 20.
        (b) Project management/               8 to 20.
         administration.
        (c) Engineering.....................  8 to 14.
    (2) Manufacturing.......................  4 to 8.
    (3) Support services....................  4 to 14.
  c. Overhead:
    (1) Technical and managerial............  5 to 8.
    (2) Manufacturing.......................  3 to 6.
    (3) Support services....................  3 to 7.
  d. Other direct costs.....................  3 to 8.
  e. G&A (General Management) expenses......  5 to 7.
II. Contract Risk (type of contract-weights   0 to 8.
 applied to total cost of items 4.a. thru
 4.e.).
III. Capital Investment (Weights applied to   5 to 20.
 the net book value of allocable facilities).
IV. Independent Research and Development:
  a. Investment in IR&D program (Weights      5 to 7.
   applied to allocable IR&D costs).
  b. Developed items employed (Weights        0 to 20.
   applied to total of profit $ for items
   4.a. thru 4.e.).
V. Special Program Participation (Weights     -5 to +5.
 applied to total of Profit $ for items 4.a.
 thru 4.e.).
VI. Other Considerations (Weights applied to  -5 to +5.
 total of Profits $ for items 4.a. thru
 4.e.).

[[Page 339]]

 
VII. Productivity/Performance (special        (N/A).
 computation).
------------------------------------------------------------------------


[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36363, July 22, 2009; 
76 FR 7692, 7693, Feb. 11, 2011]



Sec. 915.404-4-70-3  Documentation.

    Determination of the profit or fee objective, in accordance with 
this subpart shall be fully documented. Since the profit objective is 
the contracting officer's pre-negotiation evaluation of a total profit 
allowance for the proposed contract, the amounts developed for each 
category of cost will probably change in the course of negotiation. 
Furthermore, the negotiated amounts will probably vary from the 
objective and from the pre-negotiation detailed application of the 
weighted guidelines technique to each element of the contractor's input 
to total performance. Since the profit objective is viewed as a whole 
rather than as its component parts, insignificant variations from the 
pre-negotiation profit objective, as a result of changes to the 
contractor's input to total performance, need not be documented in 
detail. Conversely, significant deviations from the profit objective 
necessary to reach a final agreement on profit or fee shall be explained 
in the price negotiation memorandum prepared in accordance with 48 CFR 
15.406-3.

[63 FR 56851, Oct. 23, 1998, as amended at 76 FR 7693, Feb. 11, 2011]



Sec. 915.404-4-70-4  Exceptions.

    (a) For contracts not expected to exceed the threshold stated at 48 
CFR 15.403-4(a)(1), the weighted guidelines need not be used; however, 
the contracting officer may use the weighted guidelines for contracts 
below this amount if he or she elects to do so.
    (b) For the following classes of contracts, the weighted guidelines 
shall not be used--
    (1) Commercialization and demonstration type contracts;
    (2) Management and operating contracts;
    (3) Construction contracts;
    (4) Construction management contracts;
    (5) Contracts primarily requiring delivery of material supplied by 
subcontractors;
    (6) Termination settlements; and
    (7) Contracts with educational institutions.
    (c) In addition to paragraphs (a) and (b) of this section, the 
contracting officer need not use the weighted guidelines in unusual 
pricing situations where the weighted guidelines method has been 
determined by the DOE negotiating official to be unsuitable. Such 
exceptions shall be justified in writing and shall be authorized by the 
Head of the Contracting Activity. The contract file shall include this 
documentation and any other information that may support the exception.
    (d) If the contracting officer makes a written determination that 
the pricing situation meets any of the circumstances set forth in this 
section, other methods for establishing the profit objective may be 
used. For contracts other than those subject to subpart 917.6, the 
selected method shall be supported in a manner similar to that used in 
the weighted guidelines (profit factor breakdown and documentation of 
profit objectives); however, investment or other factors that would not 
be applicable to the contract shall be excluded from the profit 
objective determination. It is intended that the methods will result in 
profit objectives for noncapital intensive contracts that are below 
those generally developed for capital intensive contracts.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36363, July 22, 2009; 
76 FR 7693, Feb. 11, 2011]



Sec. 915.404-4-70-5  Special considerations--contracts with nonprofit 
          organizations (other than educational institutions).

    (a) For purposes of identification, nonprofit organizations are 
defined as those business entities organized and operated exclusively 
for charitable, scientific, or educational purposes, of which no part of 
the net earnings inure to the benefit of any private shareholder or 
individual, of which no substantial part of the activities is attempting 
to influence legislation or

[[Page 340]]

participating in any political campaign on behalf of any candidate for 
public office, and which are exempt from Federal income taxation under 
section 501 of the Internal Revenue Code.
    (b) In computing the amount of profit or fee to be paid, the DOE 
negotiating official shall take into account the tax benefits received 
by a nonprofit organization. While it is difficult to establish the 
degree to which a remuneration under any given contract contributes to 
an organization's overall net profit, the DOE negotiating official 
should assume that there is an element of profit in any amount to be 
paid.
    (c) In order to assure consideration of the tax posture of nonprofit 
organizations during a profit or fee negotiation, the DOE negotiating 
official shall calculate the fee as for a contract with a commercial 
concern and then reduce it at least 25 percent. However, depending on 
the circumstances, the contracting officer may pay profit or fees 
somewhere between this amount and the appropriate profit or fee as if it 
were a commercial concern. When this is the case, the contract file 
shall be documented to specifically state the reason or reasons.
    (d) Where a contract with a nonprofit organization is for the 
operation of Government-owned facilities, the fee should be calculated 
using the procedures and schedules applicable to operating contracts as 
set forth in part 970.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36363, July 22, 2009]



Sec. 915.404-4-70-6  Contracts with educational institutions.

    In certain situations the DOE may contract with a university to 
manage or operate Government-owned laboratories. These efforts are 
generally apart from, and not in conjunction with, their other 
activities, and the complexity and magnitude of the work are not 
normally found in standard university research or study contracts. Such 
operating contracts are subject to the applicable provisions set forth 
in part 970.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36363, July 22, 2009]



Sec. 915.404-4-70-7  Alternative techniques.

    (a) Profit or fees to be paid on construction contracts and 
construction management contracts shall be determined in accordance with 
the applicable profit/fee technique for such contracts set forth in 
915.404-4-71.
    (b) Profit and fee to be paid on contracts under the threshold 
stated at 48 CFR 15.403-4(a)(1), not using the weighted guidelines, 
shall be judgmentally developed by the contracting officer by assigning 
individual dollar amounts to the factors appropriate to DOE profit 
considerations discussed in 915.404-4-70-2(d).
    (c) Contracts which require only delivery or furnishing of goods or 
services supplied by subcontractors shall include a fee or profit which, 
in the best judgment of the contracting officer, is appropriate. It 
would be expected that there would be a declining relationship of 
profit/fee dollars in relation to total costs. The higher the cost of 
subcontracts, for example, the lower the profit/fee ratio to these 
costs.
    (d) Profit/Fee considerations in termination settlements are often a 
question of equity. They are a matter of negotiation. They should not, 
however, exceed what would have otherwise been payable under weighted 
guidelines had the termination not occurred.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36364, July 22, 2009; 
76 FR 7693, Feb. 11, 2011]



Sec. 915.404-4-70-8  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.



Sec. 915.404-4-71  Profit and fee-system for construction and 
          construction management contracts.



Sec. 915.404-4-71-1  General.

    (a) Business concerns awarded a DOE construction or construction 
management contract shall be paid a profit or fee if requested or 
solicited. The profit or fee objective for a construction or 
construction management contract shall be an amount appropriate for the

[[Page 341]]

type of effort contained therein. It is the intent of DOE to--
    (1) Reward contractors based on the complexity of work;
    (2) Reward contractors who demonstrate and establish excellent 
records of performance; and
    (3) Reward contractors who contribute their own resources, including 
facilities and investment of capital.
    (b) Standard fees or across-the-board agreements will not be used or 
made. Profit or fee objectives are to be determined for each contract 
according to the effort or task contracted thereunder.
    (c) Profit or fee payable on fixed-price and cost-reimbursable 
construction or construction management contracts shall be established 
in accordance with the appropriate procedures and schedules set forth in 
this subpart.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36364, July 22, 2009; 
76 FR 7693, Feb. 11, 2011; 76 FR 10476, Feb. 25, 2011]



Sec. 915.404-4-71-2  Limitations.

    Amounts payable under construction and construction management 
contracts shall not exceed amounts derived from the schedules 
established for this purpose. Requests to pay fees in excess of these 
levels shall be forwarded to the Senior Procurement Executive for review 
and approval.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36378, July 22, 2009]



Sec. 915.404-4-71-3  Factors for determining fees.

    (a) The profit policy stated in 915.404-4-71-1(a) reflects, in a 
broad sense, recognition that profit is compensation to contractors for 
the entrepreneurial function of organizing and managing resources 
(including capital resources), and the assumption of risk that all costs 
of performance (operating and capital) may not be reimbursable.
    (b) The best approach calls for a structure that allows judgmental 
evaluation and determination of fee dollars for prescribed factors which 
impact the need for, and the rewards associated with, fee or profit, as 
follows--
    (1) Management risk relating to performance, including the--
    (i) Quality and diversity 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;
    (2) The presence or absence of financial risk, including the type 
and terms of the contract;
    (3) The relative difficulty of work, including consideration of 
technical and administrative knowledge, skill, experience and clarity of 
technical specifications;
    (4) Degree and amount of contract work required to be performed by 
and with the contractor's own resources, including the extent to which 
the contractor contributes plant, equipment, computers, or working 
capital (labor, etc.);
    (5) Duration of project;
    (6) Size of operation;
    (7) Benefits which may accrue to the contractor from gaining 
experience and know-how, from establishing or enhancing a reputation, or 
from being enabled to hold or expand a staff whose loyalties are 
primarily to the contractor; and
    (8) Other special considerations, including support of Government 
programs such as those relating to small, small disadvantaged, and 
women-owned small business in subcontracting, energy conservation, etc.
    (c) The total fee objective and amount for a particular negotiation 
is established by judgmental considerations of the factors in paragraph 
(b) of this section, assigning fee values as deemed appropriate for each 
factor and totaling the resulting amounts.
    (d) In recognition of the complexities of this process, and to 
assist in promoting a reasonable degree of consistency and uniformity in 
its application, fee schedules have been developed which set forth 
maximum fee amounts that contracting activities are allowed to negotiate 
for a particular transaction without obtaining prior approval of the 
Senior Procurement Executive. In addition, the fee negotiation objective 
established in accordance with 915.404-4-71-3(a), (b), and (c) shall not 
exceed the applicable fee schedule amounts without prior approval of the 
Senior Procurement Executive. To facilitate application to a contract, 
the fee amounts are related

[[Page 342]]

to the total cost base which is defined as total operating and capital 
costs.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36364, 36378, July 22, 
2009]



Sec. 915.404-4-71-4  Considerations affecting fee amounts.

    (a) In selecting final fee amounts for the various factors in 
915.404-4-71-3 of this section, the DOE negotiating official will have 
to make several judgments as discussed in this subsection.
    (b) Complexity of a construction project shall be considered by 
analysis of its major parts. For a project which includes items of work 
of different degrees of complexity, a single average classification 
should be considered, or the work should be divided into separate 
classifications. The following class identifications are appropriate for 
proper fee determinations.
    (1) Class A--Manufacturing plants involving operations requiring a 
high degree of design layout or process control; nuclear reactors; 
atomic particle accelerators; complex laboratories or industrial units 
especially designed for handling radioactive materials.
    (2) Class B--Normal manufacturing processes and assembly operations 
such as ore dressing, metal working plant and simple processing plants; 
power plants and accessory switching and transformer stations; water 
treatment plants; sewage disposal plants; hospitals; and ordinary 
laboratories.
    (3) Class C--Permanent administrative and general service buildings, 
permanent housing, roads, railroads, grading, sewers, storm drains, and 
water and power distribution systems.
    (4) Class D--Construction camps and facilities and other 
construction of a temporary nature.
    (c) Normal management elements of principal tasks relating to a 
construction contract cover several categories of tasks with differing 
rates of application throughout the construction period. The principal 
elements of management effort are outlined in this paragraph. Although 
each project has a total management value equal to 100% for all 
elements, the distribution of effort among the various elements will be 
different for each project due to differences in project character or 
size. The basic management elements and the normal range of efforts 
expected to apply for a normal sized project are as follows. When the 
normally expected effort will not be performed by a contractor, this 
fact should be considered in arriving at appropriate fee amounts.

------------------------------------------------------------------------
                                                         Effort range
                 Management elements                 -------------------
                                                       Minimum   Maximum
------------------------------------------------------------------------
I. Broad project planning. Overall project planning         15        25
 and scheduling, establishment of key project
 organization and consultation with the A-E and DOE.
 Performed by highest level of contractor's
 officers, technical personnel and project manager..
II. Field planning. Mobilization and demobilization         18        28
 of top field organization from the contractor's
 existing organization and from other sources as
 necessary. Detailed project planning and scheduling
 for construction of facilities. Performed by the
 project manager and top field professional staff...
III. Labor supervision. Direct supervision of manual        12        16
 employees. Performed by contractor's
 subprofessional staff, such as superintendents and
 foremen (some salaried and some hourly rate). This
 includes the contractor's personnel to coordinate
 and expedite the work of Subcontractors............
IV. Acquisition and subcontracting. Acquisition of          12        16
 other than special equipment. Selection of
 subcontractors and execution and administration of
 subcontracts. Performed by contractor's staff under
 supervision and direction of elements I and II.....
V. Labor relations and recruit-ment (manual).                7        11
 Performed by the contractor's staff under
 supervision and direction of elements I, II and
 III. This includes demobilization of work forces...
VI. Recruitment of supervisory staff. Staffing               4         6
 required to supplement the organization under
 elements I and II, and demobilization during
 completion of the project. Performed by
 contractor's permanent staff and recruitment
 personnel under supervision and direction of
 management elements I and II.......................
VII. Expediting. Expediting contracting performed by         4         6
 contractor's staff and by subcontractors. Performed
 by contractor's staff under supervision and
 direction of elements I and II.....................
VIII. Construction equipment operations. This                4         6
 includes mobilization and demobilization. Performed
 by contractor's staff under supervision, direction
 and coordination of elements I, II, and IV.........

[[Page 343]]

 
IX. Other services. Timekeeping, cost accounting,            4         6
 estimating, reporting, security, etc., by the
 contractor's staff under supervision and direction
 of elements I and II...............................
------------------------------------------------------------------------

    (d) Fee considerations dealing with the duration of a project are 
usually provided by the consideration given to the degree of complexity 
and magnitude of the work. In only very unusual circumstances should it 
be necessary to separately weight, positively or negatively, for the 
period of services or length of time involved in the project when 
determining fee levels.
    (e) The size of the operation is to a considerable degree a 
continuation of the complexity factor, and the degree and amount of work 
required to be performed by and with the contractor's own resources. 
Generally, no separate weighting, positively or negatively, is required 
for consideration of those factors.
    (f) The degree and amount of work required to be performed by and 
with the contractor's own resources affect the level of fees. Reasonable 
fees should be based on expectations of complete construction services 
normally associated with a construction or construction management 
contract. In the case of a construction contract, reduced services can 
be in the form of excessive subcontracting or supporting acquisition 
actions and labor relations interfaces being made by the government. If 
an unusual amount of such work is performed by other than the 
contractor, it will be necessary to make downward adjustments in the fee 
levels to provide for the reduction in services required.
    (g) The type of contract to be negotiated and the anticipated 
contractor cost risk shall be considered in establishing the appropriate 
fee objective for the contract.
    (h) When a contract calls for the contractor to use its own 
resources, including facilities and equipment, and to make its own cost 
investment (i.e., when there is no letter-of-credit financing), a 
positive impact on the fee amount shall be reflected.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36364, July 22, 2009]



Sec. 915.404-4-71-5  Fee schedules.

    (a) The schedules included in this paragraph, adjusted in accordance 
with provisions of this section and 915.404-4-71-6, provide maximum fee 
levels for construction and construction management contracts. The fees 
are related to the estimated cost (fee base) for the construction work 
and services to be performed. The schedule in paragraph (d) of this 
section sets forth the basic fee schedule for construction contracts. 
The schedule in paragraph (f) of this section sets forth the basic fee 
schedule for construction management contracts. A separate schedule in 
paragraph (h) of this section has been developed for determining the fee 
applicable to special equipment purchases and to reflect a differing 
level of fee consideration associated with the subcontractor effort 
under construction management contracts. (See 915.404-4-71-6(c) and 
915.404-4-71-6(d)).
    (b) The schedules cited in paragraph (a) of this section provide the 
maximum fee amount for a CPFF contract arrangement. If a fixed-price 
type contract is to be awarded, the fee amount set forth in the fee 
schedules shall be increased by an amount not to exceed 4 percent of the 
fee base.
    (c) The fee schedule shown in paragraphs (d) and (f) of this section 
assumes a letter of credit financing arrangement. If a contract provides 
for or requires the contractor to make their own cost investment for 
contract performance (i.e., when there is no letter-of-credit 
financing), the fee amounts set forth in the fee schedules shall be 
increased by an amount equal to 5 percent of the fee amount as 
determined from the schedules.
    (d) The following schedule sets forth the base for construction 
contracts:

                     Construction Contracts Schedule
------------------------------------------------------------------------
                                                             Fee   Incr.
              Fee base (dollars)                   Fee       (per   (per
                                                (dollars)   cent)  cent)
------------------------------------------------------------------------
Up to $1 Million.............................  ...........  .....   5.47
1,000,000....................................       54,700   5.47   3.88
3,000,000....................................      132,374   4.41   3.28

[[Page 344]]

 
5,000,000....................................      198,014   3.96   2.87
10,000,000...................................      341,328   3.41   2.60
15,000,000...................................      471,514   3.14   2.20
25,000,000...................................      691,408   2.77   1.95
40,000,000...................................      984,600   2.46   1.73
60,000,000...................................    1,330,304   2.22   1.56
80,000,000...................................    1,643,188   2.05   1.41
100,000,000..................................    1,924,346   1.92   1.26
150,000,000..................................    2,552,302   1.70   1.09
200,000,000..................................    3,094,926   1.55   0.80
300,000,000..................................    3,897,922   1.30   0.68
400,000,000..................................    4,581,672   1.15   0.57
500,000,000..................................    5,148,364   1.03
Over $500 Million............................    5,148,364  .....   0.57
------------------------------------------------------------------------

    (e) When using the Construction Contracts Schedule for establishing 
maximum payable basic fees, the following adjustments shall be made to 
the Schedule fee amounts for complexity levels, excessive 
subcontracting, normal contractor services performed by the government 
or another contractor:
    (1) The target fee amounts, set forth in the fee schedule, shall not 
be adjusted for a Class A project, which is maximum complexity. A Class 
B project requires a 10 percent reduction in amounts. Class C and D 
projects require a 20 percent and 30 percent reduction, respectively. 
The various classes are defined in 915.404-4-71-4(b).
    (2) The target fee schedule provides for 45 percent of the contract 
work to be subcontracted for such things as electrical and other 
specialties. Excessive subcontracting results when such efforts exceed 
45 percent of the total contract work. To establish appropriate fee 
reductions for excessive subcontracting, the negotiating official should 
first determine the amount of subcontracting as a percentage of the 
total contract work. Next, the negotiating official should determine a 
percentage by which the prime contractor's normal requirement (based on 
a requirement for doing work with its own forces) is reduced due to the 
excessive subcontracting and, finally, multiply the two percentages to 
determine a fee reduction factor.
    (3) If acquisition or other services normally expected of the 
contractor (see 915.404-4-71-4(c)) are performed by the government, or 
another DOE prime or operating contractor, a fee reduction may also be 
required. The negotiating official should first determine what 
percentage of the total procurement or other required services is 
performed by others. Then the negotiating official should apply this 
percentage reduction to the normally assigned weightings for the 
management services or effort as discussed in 915.404-4-71-4(c) to 
arrive at the appropriate reduction factor.
    (f) The following schedule sets forth the base for construction 
management contracts:

               Construction Management Contracts Schedule
------------------------------------------------------------------------
                                                             Fee   Incr.
              Fee base (dollars)                   Fee       (per   (per
                                                (dollars)   cent)  cent)
------------------------------------------------------------------------
Up to $1 Million.............................  ...........  .....   5.47
1,000,000....................................       54,700   5.47   3.88
3,000,000....................................      132,374   4.41   3.28
5,000,000....................................      198,014   3.96   2.87
10,000,000...................................      341,328   3.41   2.60
15,000,000...................................      471,514   3.14   2.20
25,000,000...................................      691,408   2.77   1.95
40,000,000...................................      984,600   2.46   1.73
60,000,000...................................    1,330,304   2.22   1.56
80,000,000...................................    1,643,188   2.05   1.41
100,000,000..................................    1,924,346   1.92   1.26
150,000,000..................................    2,552,302   1.70   1.09
200,000,000..................................    3,094,926   1.55   0.80
300,000,000..................................    3,897,922   1.30   0.68
400,000,000..................................    4,581,672   1.15   0.57
500,000,000..................................    5,148,364   1.03
Over $500 Million............................    5,148,364  .....   0.57
------------------------------------------------------------------------

    (g) When applying the basic Construction Management Contracts 
Schedule for determining maximum payable fees, no adjustments are 
necessary to such payable fees for contractor Force account labor used 
for work which should otherwise be subcontracted until such Force 
account work exceeds, in the aggregate, 20 percent of the base. 
Excessive use of Force account work results when such effort exceeds 20 
percent of the fee base; and, when this occurs, appropriate fee 
reductions for such excessive Force account labor shall be computed as 
follows:
    (1) Determine the percentage amount of Force account work to total 
contractor effort.
    (2) Determine the percentage amount of subcontract work reduced due 
to the use of Force account work.
    (3) Multiply the two percentages to determine the fee reduction 
factor. It is not expected that reductions in the

[[Page 345]]

Construction Management Contracts Schedule fee amounts will be made for 
complexity, reduced requirements and similar adjustments as made for 
construction contracts.
    (h) The schedule of fees for consideration of special equipment 
purchases and for consideration of the subcontract program under a 
construction management contract is as follows:

          Special Equipment Purchases/Subcontract Work Schedule
------------------------------------------------------------------------
                                                             Fee   Incr.
              Fee base (dollars)                   Fee       (per   (per
                                                (dollars)   cent)  cent)
------------------------------------------------------------------------
Up to $1 Million.............................  ...........  .....   1.64
1,000,000....................................       16,410   1.64   1.09
2,000,000....................................       27,350   1.37   0.93
4,000,000....................................       45,948   1.15   0.77
6,000,000....................................       61,264   1.02   0.71
8,000,000....................................       75,486   0.94   0.66
10,000,000...................................       88,614   0.89   0.61
15,000,000...................................      119,246   0.79   0.53
25,000,000...................................      171,758   0.69   0.47
40,000,000...................................      242,868   0.61   0.43
60,000,000...................................      329,294   0.55   0.39
80,000,000...................................      406,968   0.51   0.37
100,000,000..................................      480,266   0.48   0.28
150,000,000..................................      619,204   0.41   0.23
200,000,000..................................      732,980   0.37   0.13
300,000,000..................................      867,542   0.29  .....
Over $300 Million............................      867,542  .....    013
------------------------------------------------------------------------


[63 FR 56851, Oct. 23, 1998, as amended at 64 FR 12227, Mar. 11, 1999; 
74 FR 36364, July 22, 2009]



Sec. 915.404-4-71-6  Fee base.

    (a) The fee base shown in the Construction Contracts Schedule and 
Construction Management Contracts Schedule represents that estimate of 
cost to which a percentage factor is applied to determine maximum fee 
allowances. The fee base is the estimated necessary allowable cost of 
the construction work or other services which are to be performed. It 
shall include the estimated cost for, but is not limited to, the 
following as they may apply in the case of a construction or 
construction management contract:
    (1) Site preparation and utilities.
    (2) Construction (labor-materials-supplies) of buildings and 
auxiliary facilities.
    (3) Construction (labor-materials-supplies) to complete/construct 
temporary buildings.
    (4) Design services to support the foregoing.
    (5) General management and job planning cost.
    (6) Labor supervision.
    (7) Procurement and acquisition administration.
    (8) Construction performed by subcontractors.
    (9) Installation of government furnished or contractor acquired 
special equipment and other equipment.
    (10) Equipment (other than special equipment) which is to become 
Government property (including a component of Government property).
    (b) The fee base for the basic fee determination for a construction 
contract and construction management contract shall include all 
necessary and allowable costs cited in paragraph (a) of this section as 
appropriate to the type of contract; except, any home office G&A expense 
paid as a contract cost per cost principle guidance and procedures shall 
be excluded from the fee base. The fee base shall exclude:
    (1) Cost of land.
    (2) Cost of engineering (A&E work).
    (3) Contingency estimate.
    (4) Equipment rentals or use charges.
    (5) Cost of government furnished equipment or materials.
    (6) Special equipment.
    (c) A separate fee base shall be established for special equipment 
for use in applying the Special Equipment Purchases or Subcontract Work 
Schedule (see 915.404-4-71-5(h)). The fee base for determination of 
applicable fees on special equipment shall be based on the estimated 
purchase price of the equipment.
    (d) The fee base under the Construction Management Contracts 
Schedule for a maximum basic fee determination for a construction 
management contract shall be comprised of only the costs of the 
construction manager's own efforts. However, it is recognized that in 
the case of construction management contracts, the actual construction 
work will be performed by subcontractors. In most cases the subcontract 
awards for the construction work will be made by the construction 
management contractor. Occasionally the contract may involve management 
of construction performed under a contract awarded by the Department or 
by

[[Page 346]]

one of the Department's operating contractors. In these cases, the 
actual cost of the subcontracted construction work shall be excluded 
from the fee base used to determine the maximum basic fee (under the 
Construction Management Contracts Schedule) applicable to a construction 
management contract. A separate fee base for additional allowances 
(using the Special Equipment Purchases or Subcontract Work Schedule) 
shall be established, which shall be comprised of those subcontract 
construction costs, special equipment purchases, and other items' costs 
that are contracted for or purchased by the construction manager.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36364, July 22, 2009]



Sec. 915.404-4-72  Special considerations for cost-plus-award-fee 
          contracts.

    (a) When a contract is to be awarded on a cost-plus-award-fee basis 
several special considerations are appropriate. Fee objectives for 
management and operating contracts or other contracts as determined by 
the Senior Procurement Executive, including those using the 
Construction, Construction Management, or Special Equipment Purchases/
Subcontract Work schedules from 915.404-4-71-5, shall be developed 
pursuant to the procedures set forth in 970.15404-4-8. Fee objectives 
for other cost-plus-award-fee contracts shall be in accordance with 
916.405-2 and be developed as follows:
    (1) The base fee portion of the fee objective of an award fee 
contract may range from 0% up to the 50% level of the fee amount for a 
Cost-Plus-Fixed-Fee (CPFF) contract, arrived at by using the weighted 
guidelines or other techniques (such as those provided in 915.404-4-71 
for construction and construction management contracts). However, the 
base amount should not normally exceed 50% of the otherwise applicable 
fixed fee. In the event this 50% limit is exceeded, appropriate 
documentation shall be entered into the contract file. In no event shall 
the base fee exceed 60% of the fixed fee amount.
    (2) The base fee plus the amount included in the award fee pool 
should normally not exceed the fixed fee (as subjectively determined or 
as developed from the fee schedule) by more than 50%. However, in the 
event the base fee is to be less than 50% of the fixed fee, the maximum 
potential award fee may be increased proportionately with the decreases 
in base fee amounts.
    (3) The following maximum potential award fees shall apply in award 
fee contracts: (percent is stated as percent of fee schedule amounts).

------------------------------------------------------------------------
                                                               Maximum
               Base fee percent                  Award fee      total
                                                  percent     percentage
------------------------------------------------------------------------
50............................................          100          150
40............................................          120          160
30............................................          140          170
20............................................          160          180
10............................................          180          190
0.............................................          200          200
------------------------------------------------------------------------

    (b) Prior approval of the Senior Procurement Executive, is required 
for total fee (base plus award fee pool) exceeding the guidelines in 
915.404-4-72(a)(3).

[63 FR 56851, Oct. 23, 1998, as amended at 64 FR 12229, Mar. 11, 1999; 
74 FR 36364, 36378, July 22, 2009; 76 FR 7693, Feb. 11, 2011]



Sec. 915.408  Solicitation provisions and contract clauses.



Sec. 915.408-70  Key personnel clause.

    The contracting officer (after deleting ``under the clause at 
970.5203-3, Contractor's Organization'' from paragraph (a) if not a 
management and operating contract) shall insert the clause at 952.215-
70, Key Personnel, in contracts under which performance is largely 
dependent on the expertise of specific key personnel.

[65 FR 81006, Dec. 22, 2000, as amended at 74 FR 36364, July 22, 2009]

                   Subpart 915.6_Unsolicited Proposals



Sec. 915.602  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

[[Page 347]]

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, keeps 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, subject to applicable laws and 
regulations, contained therein will not be divulged without prior 
permission of the proposer.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36364, July 22, 2009]



Sec. 915.603  General.

    (f) Unsolicited proposals for the performance of support services 
are, except as discussed in this paragraph, unacceptable as the 
performance of such services is unlikely to necessitate innovative and 
unique concepts. There may be rare instances in which an unsolicited 
proposal offers an innovative and unique approach to the accomplishment 
of a support service. If such a proposal offers a previously unknown or 
an alternative approach to generally recognized techniques for the 
accomplishment of a specific service(s) and such approach will provide 
significantly greater economy or enhanced quality, it may be considered 
for acceptance. Such acceptance shall, however, require approval of the 
acquisition of support services in accordance with applicable DOE 
Directives and be processed as a deviation to the prohibition in this 
paragraph.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36364, July 22, 2009]



Sec. 915.605  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 
subpart 917.70.

[63 FR 56851, Oct. 23, 1998, as amended at 74 FR 36364, July 22, 2009]



Sec. 915.606  Agency procedures.

    (b) Unless otherwise specified in a notice of program interest, all 
unsolicited proposals should be submitted to the Unsolicited Proposal 
Manager, U.S. Department of Energy, National Energy Technology 
Laboratory P.O. Box 10940, MS 921-107, Pittsburgh, PA 15236-0940. 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.

[63 FR 56851, Oct. 23, 1998, as amended at 67 FR 14871, Mar. 28, 2002; 
74 FR 36364, July 22, 2009]



Sec. 915.607  Criteria for acceptance and negotiation of an unsolicited 
          proposal.

    (c) DOE's cost participation policy, at subpart 917.70, shall be 
followed in determining the extent to which the DOE will participate in 
the cost for the proposed effort.

[74 FR 36364, July 22, 2009]

                       PART 916_TYPES OF CONTRACTS

                   Subpart 916.2_Fixed-Price Contracts

Sec.

Sec. 916.203 Fixed-price contracts with economic price adjustments.

Sec. 916.203-4 Contract clauses.

               Subpart 916.3_Cost-Reimbursement Contracts


Sec. 916.306 Cost-plus-fixed-fee contracts.

[[Page 348]]


Sec. 916.307 Contract clauses.

                    Subpart 916.4_Incentive Contracts


Sec. 916.405 Cost-reimbursement incentive contracts.

Sec. 916.405-2 Cost-plus-award-fee contracts.

               Subpart 916.5_Indefinite-Delivery Contracts


Sec. 916.504 Indefinite-quantity contracts.

Sec. 916.505 Ordering.

   Subpart 916.6_Time and Materials, Labor Hour, and Letter Contracts


Sec. 916.601 [Reserved]

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 11972, Mar. 28, 1984, unless otherwise noted.

                   Subpart 916.2_Fixed-Price Contracts



Sec. 916.203  Fixed-price contracts with economic price adjustments.



Sec. 916.203-4  Contract clauses.

    (d)(2) The Head of the Contracting Activity, or designee, for 
contracts estimated to be within the limits of their delegated 
authority, may approve the use of an economic price adjustment clause 
when appropriate in accordance with 48 CFR 16.203-4.

[49 FR 11955, Mar. 28, 1984, as amended at 59 FR 9105, Feb. 25, 1994; 76 
FR 7693, Feb. 11, 2011]

               Subpart 916.3_Cost-Reimbursement Contracts



Sec. 916.306  Cost-plus-fixed-fee contracts.

    (c)(2) The Head of the Contracting Activity, or designee, for 
contracts estimated to be within their delegated authority, may approve 
(sign) the determination and findings establishing the basis for 
application of the statutory price or fee limitations.

[49 FR 11955, Mar. 28, 1984, as amended at 59 FR 9105, Feb. 25, 1994]



Sec. 916.307  Contract clauses.

    (a) When contracting with a commercial organization, modify 
paragraph (a) of the clause at 48 CFR 52.216-7 by adding the phrase ``as 
supplemented by subpart 931.2 of the DEAR'' after ``FAR subpart 31.2.''
    (g) Insert the clause at 48 CFR 52.216-15, Predetermined Indirect 
Cost Rates, modified as specified in 952.216-15 in solicitations and 
contracts when a cost-reimbursement research and development contract 
with a State or local government is contemplated and predetermined 
indirect cost rates are to be used.

[49 FR 11972, Mar. 28, 1984, as amended at 74 FR 36364, July 22, 2009; 
76 FR 7693, Feb. 11, 2011]

                    Subpart 916.4_Incentive Contracts



Sec. 916.405  Cost-reimbursement incentive contracts.



Sec. 916.405-2  Cost-plus-award-fee contracts.

    (d) Fee determination plans. Award fee arrangements limited to 
technical performance considerations are prohibited because they may 
increase cost disproportionately to any benefits gained. Instead, the 
award fee arrangement shall include both technical performance 
(including scheduling as appropriate) and business management 
considerations tailored to the needs of the particular situation. In 
addition, in a situation where cost estimating reliability and other 
factors are such that the negotiation of a separate predetermined 
incentive sharing arrangement applicable to cost performance is 
determined both feasible and advantageous, cost incentives may be added. 
The resulting contract would then be identified as a cost-plus-
incentive-fee/award-fee combination type. The goals and evaluation 
criteria should be results-oriented. The award fee should be 
concentrated on the end product of the contract, that is, output, be it 
hardware, research and development, demonstration or services, together 
with business management considerations. However, input criteria such as 
equal employment opportunity, small business programs, functional 
management areas, such as safety, security, etc., should not be 
disregarded and may be appropriate criteria upon which to base some part 
of the award fee. Specific goals or objectives shall be established

[[Page 349]]

in relation to each performance evaluation criterion against which 
contractor performance is measured.

[49 FR 11955, Mar. 28, 1984, as amended at 59 FR 9105, Feb. 25, 1994. 
Redesignated at 74 FR 36364, July 22, 2009]

               Subpart 916.5_Indefinite-Delivery Contracts



Sec. 916.504  Indefinite-quantity contracts.

    (c) The contracting officer shall establish minimum ordering 
guarantees with each awardee for all indefinite-quantity, multiple award 
contracts to ensure that adequate consideration exists to contractually 
bind each awardee to participate in the ordering process throughout the 
term of the multiple award contract. Minimum ordering guarantees should 
be equal among all awardees, and shall be determined on a case-by-case 
basis for each acquisition commensurate with the size, scope and 
complexity of the contract requirements.

[62 FR 53757, Oct. 16, 1997]



Sec. 916.505  Ordering.

    (b)(6)(i) The Director, Office of Contract Management, Office of 
Procurement and Assistance Management, is designated as the DOE 
Ombudsman for task and delivery order contracts in accordance with 48 
CFR 16.505(b)(6). The Director, Office of Acquisition and Supply 
Management, is the designated NNSA Ombudsman for task and delivery order 
contracts in accordance with 48 CFR 16.505(b)(6).
    (ii) The Heads of Contracting Activities shall designate a senior 
manager to serve as the Contracting Activity Ombudsman for task and 
delivery order contracts. If, for any reason, the Contracting Activity 
Ombudsman is unable to execute the duties of the position, the Head of 
the Contracting Activity shall designate an Acting Contracting Activity 
Ombudsman.
    (iii) The Contracting Activity Ombudsman shall--
    (A) Be independent of the contracting officer who awarded and/or is 
administering the contract under which a complaint is submitted;
    (B) Not assume any duties and responsibilities pertaining to the 
evaluation or selection of an awardee for the issuance of an order under 
a multiple award, task or delivery order contract;
    (C) Review complaints from contractors awarded a task or delivery 
order contract;
    (D) Collect all facts from the cognizant organizations or 
individuals that are relevant to a complaint submitted to ensure that 
the complainant and all contractors were afforded a fair opportunity to 
be considered for the order issued in accordance with the procedures set 
forth in each awardees' contract;
    (E) Maintain a written log to track each complaint submitted from 
receipt through disposition;
    (F) Ensure that no information is released which is determined to be 
proprietary or is designated as source selection information; and
    (G) Resolve complaints at the contracting activity for which they 
have cognizance.
    (iv) If, upon review of all relevant information, the Contracting 
Activity Ombudsman determines that corrective action should be taken, 
the Contracting Activity Ombudsman shall report the determination to the 
cognizant contracting officer. Issues which cannot be so resolved should 
be forwarded to the DOE Ombudsman.

[74 FR 36364, July 22, 2009]

   Subpart 916.6_Time and Materials, Labor Hour, and Letter Contracts



Sec. 916.601  [Reserved]

                  PART 917_SPECIAL CONTRACTING METHODS

            Subpart 917.6_Management and Operating Contracts

Sec.

Sec. 917.600 Scope of subpart.

Sec. 917.601 Definitions.

Sec. 917.602 Policy.

                    Subpart 917.70_Cost Participation


Sec. 917.7000 Scope of subpart.

Sec. 917.7001 Policy.

[[Page 350]]

Subpart 917.72_Program Opportunity Notices for Commercial Demonstrations


Sec. 917.7200 Scope of subpart.

Sec. 917.7201 Policy.

Sec. 917.7201-1 General.

      Subpart 917.73_Program Research and Development Announcements


Sec. 917.7300 Scope of subpart.

Sec. 917.7301 Policy.

Sec. 917.7301-1 General.

      Subpart 917.74_Acquisition, Use, and Disposal of Real Estate


Sec. 917.7401 General.

Sec. 917.7402 Policy.

Sec. 917.7403 Contract clause.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 11974, Mar. 28, 1984, unless otherwise noted.

            Subpart 917.6_Management and Operating Contracts



Sec. 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 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 917.601. References in this subpart 
to ``management and operating contracts'' include performance-based 
management contracts.

[65 FR 81006, Dec. 22, 2000, as amended at 74 FR 36364, July 22, 2009]



Sec. 917.601  Definitions.

    Performance-based contracting has the meaning contained in 48 CFR 
37.101.
    Performance-based management contract means a management and 
operating contract that employs, to the maximum extent practicable, 
performance-based contracting concepts and methodologies through the 
application of results-oriented statements of work; clear objective 
performance standards and measurement tools; and incentives to encourage 
superior contractor performance.

[62 FR 34861, June 27, 1997, as amended at 65 FR 81006, Dec. 22, 2000]



Sec. 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 Secretary. Documentation and processing requirements 
for justifications for the use of other than full and open competition 
shall be accomplished in accordance with internal agency procedures

[65 FR 81006, Dec. 22, 2000, as amended at 67 FR 14871, Mar. 28, 2002; 
76 FR 7693, Feb. 11, 2011]

                    Subpart 917.70_Cost Participation

    Source: 61 FR 41706, Aug. 9, 1996, unless otherwise noted.



Sec. 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),

[[Page 351]]

participation in kind, and similar concepts.



Sec. 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.
    (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.

Subpart 917.72_Program Opportunity Notices for Commercial Demonstrations

    Source: 61 FR 41706, Aug. 9, 1996, unless otherwise noted.



Sec. 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 nonnuclear energy sources and utilization 
technologies.
    (b) This subpart applies to demonstrations performed by individuals, 
educational institutions, commercial or industrial organizations, or 
other private entities, 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.

[61 FR 41706, Aug. 9, 1996, as amended at 74 FR 36365, July 22, 2009; 76 
FR 7693, Feb. 11, 2011]



Sec. 917.7201  Policy.



Sec. 917.7201-1  General.

    (a) It is DOE's intent to encourage the submission of proposals to 
accelerate the demonstration of the technical, operational, economic, 
and commercial feasibility and environmental acceptability of particular 
energy technologies, systems, subsystems, and components. Program 
opportunity notices will be used to provide information concerning 
scientific and technological areas encompassed by DOE's programs. DOE 
shall, from time to time, issue program opportunity notices for 
proposals for demonstrations of various forms of non-nuclear energy and 
technology utilization.
    (b) 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

[[Page 352]]

and specified in the notice so as to notify proposers that factors which 
are essentially beyond their control will affect the selection process.

      Subpart 917.73_Program Research and Development Announcements

    Source: 61 FR 41707, Aug. 9, 1996, unless otherwise noted.



Sec. 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.



Sec. 917.7301  Policy.



Sec. 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.

[61 FR 41707, Aug. 9, 1996, as amended at 76 FR 7693, Feb. 11, 2011]

      Subpart 917.74_Acquisition, Use, and Disposal of Real Estate

    Source: 61 FR 41707, Aug. 9, 1996, unless otherwise noted.



Sec. 917.7401  General.

    The acquisition of real estate requires the involvement of a DOE 
Certified Realty Specialist, as specified at 917.7402. Special 
circumstances and situations may arise under cost-type contracts when, 
in the performance of the 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 for which DOE will reimburse the contractor for the pre-
approved costs incurred under the lease.
    (c) Acquisition of temporary interest through easement, license or 
permit, and DOE funds the cost of the temporary interest.

[61 FR 41707, Aug. 9, 1996, as amended at 76 FR 7693, Feb. 11, 2011]



Sec. 917.7402  Policy.

    It is the policy of the Department of Energy that, when 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 option considerations with the best acquisition method to be 
used, site investigation reports, site recommended for selection, 
property appraisal reports, and include the review and approval by the 
applicable DOE Certified Realty Specialist in accordance with DOE Order 
430.1B, or its successor version; and

[[Page 353]]

    (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 a DOE 
Certified Realty Specialist.
    (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, regulations, and the 
DOE Order 430.1B, or its successor version, applicable to real estate 
acquisition.
    (d) Any real property actions require the involvement of the 
applicable DOE Certified Realty Specialist.

[61 FR 41707, Aug. 9, 1996, as amended at 76 FR 7693, Feb. 11, 2011]



Sec. 917.7403  Contract clause.

    The clause at 952.217-70, Acquisition of Real Property, shall be 
included in contracts including modifications where contractor 
acquisitions of real property are expected to be made.

[76 FR 7693, Feb. 11, 2011]

[[Page 354]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 919_SMALL BUSINESS PROGRAMS

                         Subpart 919.2_Policies

Sec.

Sec. 919.201 General policy.

               Subpart 919.5_Set-Asides for Small Business


Sec. 919.501 General.

Sec. 919.502 Setting aside acquisitions.

Sec. 919.502-2 Total small business set-asides.

Sec. 919.503 Setting aside a class of acquisitions for small business.

     Subpart 919.6_Certificates of Competency and Determinations of 
                               Eligibility


Sec. 919.602-1 Referral.

         Subpart 919.7_The Small Business Subcontracting Program


Sec. 919.705-6 Postaward responsibilities of the contracting officer.

 Subpart 919.8_Contracting With the Small Business Administration (The 
                              8(a) Program)


Sec. 919.805-2 Procedures.

     Subpart 919.70_The Department of Energy Mentor-Protege Program


Sec. 919.7001 Scope of subpart.

Sec. 919.7002 Definitions.

Sec. 919.7003 General policy.

Sec. 919.7004 General prohibitions.

Sec. 919.7005 Eligibility to be a Mentor.

Sec. 919.7006 Incentives for DOE contractor participation.

Sec. 919.7007 Eligibility to be a Protege.

Sec. 919.7008 Selection of Proteges.

Sec. 919.7009 Process for participation in the program.

Sec. 919.7010 Contents of Mentor-Protege Agreement.

Sec. 919.7011 Developmental assistance.

Sec. 919.7012 Review and approval process of agreement by OSDBU.

Sec. 919.7013 Reports.

Sec. 919.7014 Solicitation provision.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 11997, Mar. 28, 1984, unless otherwise noted.

                         Subpart 919.2_Policies



Sec. 919.201  General policy.

    (c) The Director, Office of Small and Disadvantaged Business 
Utilization, Headquarters, is responsible for the administration of the 
Department of Energy (DOE) small, small disadvantaged, and women-owned 
small business programs. The Executive Director, Federal Energy 
Regulatory Commission, is responsible for the administration of the 
Commission's small, small disadvantaged, and women-owned small business 
programs. This includes responsibility for developing, implementing, 
executing, and managing these programs, providing advice on these 
programs, and representing DOE before other Government agencies on 
matters primarily affecting small, small disadvantaged, and women-owned 
small businesses. The Heads of Contracting Activities (HCAs) shall 
appoint a small business specialist.

[50 FR 12185, Mar. 27, 1985, as amended at 59 FR 9106, Feb. 25, 1994; 61 
FR 21976, May 13, 1996; 75 FR 69012, Nov. 10, 2010]

               Subpart 919.5_Set-Asides for Small Business



Sec. 919.501  General.

    (c) The Department has established an internal comprehensive review 
and screening process for acquisitions exceeding the simplified 
acquisition threshold. The review is intended to enhance the prospect of 
participation by small business, small disadvantaged business, and 
women-owned small business concerns.
    (g) The policy prescribed by 48 CFR 19.501, which requires that a 
product or service acquired by a successful small business set-aside 
shall continue to be acquired on a set-aside basis, is applicable to DOE 
on a contracting activity-wide basis. The small and disadvantaged 
business specialist at a contracting activity shall maintain a list

[[Page 355]]

of such small business set-aside awards.

[52 FR 38425, Oct. 16, 1987, as amended at 59 FR 9106, Feb. 25, 1994; 61 
FR 21977, May 13, 1996; 75 FR 69012, Nov. 10, 2010]



Sec. 919.502  Setting aside acquisitions.



Sec. 919.502-2  Total small business set-asides.

    In considering set-asides in the area of architect engineer 
contracts, contracting personnel must first consider the special 
procedures required by the Brooks Act, Pub. L. 92-582 pertaining to this 
type acquisition.



Sec. 919.503  Setting aside a class of acquisitions for small business.

    By agreement with Small Business Administration (SBA), the DOE has 
established a class set-aside for construction acquisitions not 
exceeding $3 million, including new construction and repair and 
alteration of structures. Lists of other class set-asides shall be 
maintained by all DOE contracting offices. These lists shall be updated 
at least annually.

[49 FR 11997, Mar. 28, 1984, as amended at 75 FR 69012, Nov. 10, 2010]

     Subpart 919.6_Certificates of Competency and Determinations of 
                               Eligibility



Sec. 919.602-1  Referral.

    (a)(2) The contracting officer shall coordinate with the small 
business specialist and the SBA procurement center representative prior 
to referring a determination of nonresponsibility of a small business to 
the SBA Area Office.

[52 FR 38425, Oct. 16, 1987, as amended at 61 FR 21977, May 13, 1996; 63 
FR 56860, Oct. 23, 1998]

         Subpart 919.7_The Small Business Subcontracting Program



Sec. 919.705-6  Postaward responsibilities of the contracting officer.

    A copy of the notification to the SBA of awards of contracts, 
amendments or modifications that contain subcontracting plans, as 
required by 48 CFR 19.705-6(a), shall be provided to the Office of Small 
and Disadvantaged Business Utilization.

[49 FR 11997, Mar. 28, 1984, as amended at 59 FR 9106, Feb. 25, 1994; 75 
FR 69012, Nov. 10, 2010]

 Subpart 919.8_Contracting With the Small Business Administration (The 
                              8(a) Program)



Sec. 919.805-2  Procedures.

    Acquisitions involving section 8(a) competition must comply with 
source selection procedures set forth in 48 CFR chapter 1 in accordance 
with 13 CFR part 124.

[63 FR 56860, Oct. 23, 1998, as amended at 75 FR 69012, Nov. 10, 2010]

     Subpart 919.70_The Department of Energy Mentor-Protege Program

    Source: 65 FR 21369, Apr. 21, 2000, unless otherwise noted.



Sec. 919.7001  Scope of subpart.

    The Department of Energy (DOE) Mentor-Protege Program is designed to 
encourage DOE prime contractors to assist small disadvantaged firms 
certified by the Small Business Administration (SBA) under Section 8(a) 
of the Small Business Act (8(a)), other small disadvantaged businesses, 
women-owned small businesses, Historically Black Colleges and 
Universities, and other minority institutions of higher learning, and 
small business concerns owned and controlled by service disabled 
veterans in enhancing their capabilities to perform contracts and 
subcontracts for DOE and other Federal agencies. The program seeks to 
foster long-term business relationships between these small business 
entities and DOE prime contractors, and to increase the overall number 
of these small business entities that receive DOE contract and 
subcontract awards.



Sec. 919.7002  Definitions.

    Historically Black Colleges and Universities (HBCUs) means an 
institution determined by the Secretary of Education to meet the 
requirements of 34 CFR 608.2.

[[Page 356]]

    Other minority institutions of higher learning means an institution 
determined by the Secretary of Education to meet the requirements of 20 
U.S.C. 1067k.
    Small business concern owned and controlled by service-disabled 
veterans means a small business concern as defined in Public Law 106-50, 
Veterans Entrepreneurship and Small Business Development Act of 1999.
    Small disadvantaged business means a small business concern owned 
and controlled by socially and economically disadvantaged individuals 
that meets the requirements of 13 CFR part 124, subpart B.
    Women-owned small business means a small business concern that meets 
the requirements of 15 U.S.C. 637(d)(3)(D).



Sec. 919.7003  General policy.

    (a) DOE contractors eligible under 48 CFR 919.7005 may enter into 
agreements with businesses certified by the SBA in the 8(a) Program, 
other small disadvantaged businesses, women-owned small businesses, 
HBCUs, other minority institutions of higher learning, and small 
business concerns owned and controlled by service disabled veterans to 
provide those firms appropriate developmental assistance to enhance the 
capabilities of Proteges.
    (b) Costs incurred by a Mentor to provide developmental assistance, 
as described in 919.7011, are allowable only to the extent that they are 
incurred in performance of a contract identified in the Mentor-Protege 
Agreement and are otherwise allowable in accordance with the cost 
principles applicable to that contract.
    (c) Headquarters Office of Small and Disadvantaged Business 
Utilization (OSDBU) is the DOE Program Manager for the Mentor-Protege 
Program.



Sec. 919.7004  General prohibitions.

    DOE will not reimburse the costs of a Mentor in providing any form 
of developmental assistance to a Protege except as provided in 
919.7003(b).



Sec. 919.7005  Eligibility to be a Mentor.

    To be eligible for recognition by DOE as a Mentor, an entity must be 
performing at least one contract for DOE.



Sec. 919.7006  Incentives for DOE contractor participation.

    (a) Under cost-plus-award fee contracts, approved Mentor firms may 
earn award fees associated with their performance as a Mentor. The award 
fee plan may include provision for the evaluation of the contractor's 
utilization of 8(a) firms, other small disadvantaged businesses, women-
owned small businesses, HBCUs, other minority institutions of higher 
learning and small business concerns owned and controlled by service 
disabled veterans. DOE may evaluate the Mentor's performance in the DOE 
Mentor-Protege Program under any Mentor-Protege Agreement(s) as a 
separate element of the award fee plan.
    (b) Mentors shall receive credit for subcontracts awarded pursuant 
to their Mentor-Protege Agreements toward subcontracting goals contained 
in their subcontracting plan.



Sec. 919.7007  Eligibility to be a Protege.

    (a) To be eligible for selection as a Protege, a firm must--
    (1) Be a small business certified under Section 8(a) of the Small 
Business Act by SBA, other small disadvantaged business, a women-owned 
small business, HBCU, or any other minority institution of higher 
learning, or a small business concern owned and controlled by service 
disabled veterans;
    (2) Be eligible for receipt of government contracts;
    (3) Have been in business for at least two (2) years prior to 
application for enrollment into the Mentor-Protege Program; and
    (4) Be able to certify as a small business according to the Standard 
Industrial Code for the services or supplies to be provided by the 
Protege under its subcontract with the Mentor.
    (b) A prospective Mentor may rely in good faith on written 
representations by a prospective Protege that the Protege meets the 
requirements in paragraph (a) of this section.

[49 FR 11997, Mar. 28, 1984, as amended at 75 FR 69012, Nov. 10, 2010]



Sec. 919.7008  Selection of Proteges.

    (a) A Mentor firm is solely responsible for selecting one or more 
Protege

[[Page 357]]

entities from firms eligible under 919.7007.
    (b) A Mentor may have more than one Protege; however, a Protege may 
have only one Mentor.
    (c) The selection of Protege firms by Mentor firms may not be 
protested, except as provided in paragraph (d) of this section.
    (d) Only protests regarding the small business size status of a firm 
to be a Protege will be considered and shall be submitted to the DOE 
Office of Small and Disadvantaged Business Utilization for resolution. 
If that office is unable to resolve a protest, it will refer the matter 
to the Small Business Administration for resolution in accordance with 
13 CFR part 121.

[49 FR 11997, Mar. 28, 1984, as amended at 75 FR 69012, Nov. 10, 2010]



Sec. 919.7009  Process for participation in the program.

    A prospective Mentor must submit the following to the DOE Mentor-
Protege Program Manager--
    (a) A statement that it is eligible, as of the date of application, 
for the award of Federal contracts;
    (b) A statement that it is currently performing at least one 
contract for DOE;
    (c) The DOE contract number, type of contract, period of performance 
(including options), title of technical program effort, name of DOE 
technical program manager (including contact information) and the DOE 
contracting activity; and
    (d) An original and two copies of the Mentor-Protege Agreement 
signed by the chief executive officer or designee of the Mentor firm and 
the chief executive officer of the Protege firm.

[49 FR 11997, Mar. 28, 1984, as amended at 75 FR 69012, Nov. 10, 2010]



Sec. 919.7010  Contents of Mentor-Protege Agreement.

    The proposed Mentor-Protege Agreement must contain--
    (a) Names, addresses and telephone numbers of Mentor and Protege 
firms and a point of contact within each firm who will oversee the 
Agreement;
    (b) Requirements for the Mentor firm or the Protege firm to notify 
the other entity, DOE Headquarters OSDBU, and the contracting officer in 
writing at least 30 days in advance of the Mentor firm's or the Protege 
firm's intent to voluntarily terminate or withdraw from the Mentor-
Protege Agreement (such termination would not terminate any existing 
subcontract between the Mentor and the Protege);
    (c) A description of the form of developmental assistance program 
that will be provided by the Mentor to the Protege firm, including a 
description of any subcontract work, and a schedule for providing the 
assistance and the criteria for evaluation of the Protege's 
developmental success (919.7011);
    (d) A listing of the number and types and estimated amount of 
subcontracts to be awarded to the Protege firm;
    (e) Term of the Agreement;
    (f) Procedures to be invoked should DOE terminate its recognition of 
the Agreement for good cause (such termination of DOE recognition would 
not constitute a termination of the subcontract between the Mentor and 
the Protege);
    (g) Provision for the Mentor firm to submit to the DOE Mentor-
Protege Program Manager a ``lessons learned'' evaluation developed by 
the Mentor at the conclusion of the Mentor-Protege Agreement;
    (h) Provision for the submission by the Protege firm of a ``lessons 
learned'' evaluation to the DOE Mentor-Protege Program Manager at the 
conclusion of the Mentor-Protege Agreement;
    (i) Description of how the development assistance will potentially 
increase subcontracting opportunities for the Protege firm;
    (j) Provision for the Mentor firm to brief the DOE Mentor-Protege 
Program Manager, the technical program manager(s), and the contracting 
officer at the conclusion of each year in the Mentor-Protege Program 
regarding program accomplishments as pertains to the approved Agreement 
(where possible, this review may be incorporated into the normal program 
review for the Mentor's contract);
    (k) Recognition that costs incurred by a Mentor to provide 
developmental assistance, as described in 919.7011, are allowable only 
to the extent that they are incurred in performance of a contract 
identified in the Mentor-Protege

[[Page 358]]

Agreement and are otherwise allowable in accordance with the cost 
principles applicable to that contract (the DOE Mentor-Protege Program 
has no appropriation for paying for developmental assistance); and
    (l) Other terms and conditions, as appropriate.

[49 FR 11997, Mar. 28, 1984, as amended at 75 FR 69012, Nov. 10, 2010]



Sec. 919.7011  Developmental assistance.

    (a) The forms of developmental assistance a Mentor may provide to a 
Protege include, but are not limited to--
    (1) Management guidance relating to--
    (i) Financial management,
    (ii) Organizational management,
    (iii) Overall business management planning,
    (iv) Business development, and
    (v) Marketing assistance;
    (2) Engineering and other technical assistance;
    (3) Noncompetitive award of subcontracts under DOE or other Federal 
contracts where otherwise authorized;
    (4) Award of subcontracts in the Mentor's commercial activities;
    (5) Progress payments based on costs;
    (6) Rent-free use of facilities and/or equipment owned or leased by 
Mentor; and
    (7) Temporary assignment of Mentor personnel to the Protege for 
purposes of training.
    (b) Costs incurred by a Mentor to provide developmental assistance, 
as described in paragraph (a) of this section, are allowable only to the 
extent provided at 919.7003(b).

[49 FR 11997, Mar. 28, 1984, as amended at 75 FR 69012, Nov. 10, 2010]



Sec. 919.7012  Review and approval process of agreement by OSDBU.

    (a) OSDBU will review the proposed Mentor-Protege Agreement under 
919.7010 and will complete its review and assessment no later than 30 
days after receipt. OSDBU will provide a copy of its assessment to the 
cognizant DOE technical program manager and contracting officer for 
review and concurrence.
    (b) If OSDBU approves the Agreement, the Mentor may implement the 
developmental assistance program.
    (c) Upon finding deficiencies that DOE considers correctable, the 
OSDBU will notify the Mentor and request information to be provided 
within 30 days that may correct the deficiencies. The Mentor may then 
provide additional information for reconsideration. The review of any 
supplemental material will be completed within 30 days after receipt by 
the OSDBU and the Agreement either approved or disapproved.

[49 FR 11997, Mar. 28, 1984, as amended at 75 FR 69012, Nov. 10, 2010]



Sec. 919.7013  Reports.

    (a) Prior to performing an evaluation of a Mentor's performance 
under its Mentor-Protege Agreement for use in award fee evaluations, the 
Mentor-Protege Program Manager must consult with the cognizant DOE 
technical program manager and must provide a copy of the performance 
evaluation comments regarding the technical effort and Mentor-Protege 
development to the contracting officer.
    (b) The DOE Mentor-Protege Program Manager must submit semi-annual 
reports to the cognizant contracting officer regarding the participating 
Mentor's performance in the Program for use in the award fee 
determination process.
    (c) The Mentor firm must submit progress reports to the DOE Mentor-
Protege Program Manager semi-annually.



Sec. 919.7014  Solicitation provision.

    The cognizant contracting officer must insert the provision at 
952.219-70, DOE Mentor-Protege Program, in all solicitations with an 
estimated value in excess of the simplified acquisition threshold.

      PART 922_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

                   Subpart 922.1_Basic Labor Policies

Sec.

Sec. 922.103 Overtime.

Sec. 922.103-4 Approvals.

Sec. 922.103-5 Contract clauses.

[[Page 359]]

Subpart 922.6 [Reserved]

               Subpart 922.8_Equal Employment Opportunity


Sec. 922.800 Scope of subpart.

Sec. 922.802 [Reserved]

Sec. 922.803 Responsibilities.

Sec. 922.804 Affirmative action programs.

Sec. 922.804-1 Nonconstruction.

Sec. 922.804-2 Construction.

Sec. 922.807 Exemptions.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 11998, Mar. 28, 1984, unless otherwise noted.

                   Subpart 922.1_Basic Labor Policies



Sec. 922.103  Overtime.



Sec. 922.103-4  Approvals.

    (d)(1) Where the cost to the Government may be affected, approval of 
hours of work in excess of the normal workweek is justified only in 
those instances and for those employees where it can be shown that 
overtime would provide needed and demonstrable impetus to the 
accomplishment of Department of Energy (DOE) objectives and that all 
other means of meeting these objectives have been considered and found 
inadequate or not feasible. Accordingly, the Heads of Contracting 
Activities shall--
    (i) Establish controls to prevent excess casual overtime and to 
assure that such overtime work is in the best interest of the 
Government. Casual overtime means--
    (A) Work in excess of the normal workweek (or in excess of an 
authorized extended workweek) which cannot be regularly scheduled in 
advance; or
    (B) Regularly scheduled work in excess of the normal workweek for a 
period of four consecutive weeks or less; and
    (ii) Establish controls to assure that any use of any extended 
workweek schedule is in the best interest of the Government. Extended 
workweek means a workweek regularly scheduled and established in excess 
of the normal workweek for a period in excess of four consecutive weeks.

[49 FR 11998, Mar. 28, 1984, as amended at 59 FR 9106, Feb. 25, 1994; 74 
FR 36365, July 22, 2009]



Sec. 922.103-5  Contract clauses.

    In accordance with 48 CFR 22.101-1(e) and 48 CFR 22.103-5, the 
contracting officer shall insert the clause at 48 CFR 52.222-1, Notice 
to the Government of Labor Disputes, in all solicitations and contracts 
for protective services at DOE owned facilities requiring continuity of 
services for public safety and national security reasons. The 
contracting officer may insert this clause in other solicitations and 
contracts where a significant need for continuity in contract 
performance exists. See subpart 937.70, Protective Services Contracting, 
for additional policy guidance regarding protective services.

[58 FR 36151, July 6, 1993, as amended at 74 FR 36365, July 22, 2009; 75 
FR 69012, Nov. 10, 2010]

Subpart 922.6 [Reserved]

               Subpart 922.8_Equal Employment Opportunity



Sec. 922.800  Scope of subpart.

    This subpart implements 48 CFR part 22, subpart 22.8. It applies to 
all DOE contracts and subcontracts.

[49 FR 11998, Mar. 28, 1984, as amended at 59 FR 9106, Feb. 25, 1994; 75 
FR 69012, Nov. 10, 2010]



Sec. 922.802  [Reserved]



Sec. 922.803  Responsibilities.

    (a) The Director, Office of Federal Contract Compliance Programs of 
the Department of Labor has been delegated authority and responsibility 
for carrying out the requirements of Executive Order 11246, as amended. 
In conjunction with the delegation, contracting officers shall be 
familiar with existing and any updated provisions of 41 CFR Ch. 60, and 
assist the Department of Labor in its compliance responsibilities. DOE 
contracting officers

[[Page 360]]

will include the applicable Equal Employment Opportunity (EEO)) and 
Affirmative Action Program (AAP) requirements in their solicitations and 
obtain the applicable reports of compliance from the Office of Federal 
Contract Compliance Programs (OFCCP) (when required) prior to awarding 
of contracts. The provisions of 41 CFR Ch. 60, are applicable to all DOE 
contracts.
    (d) The OFCCP requires that requests for pre-award clearances be 
directed to the OFCCP Regional Office in which the contractor's facility 
is (to be) located. If OFCCP finds the contractor in compliance, the 
contracting officer will be notified. Findings of non-compliance can be 
communicated to the contracting officer by the OFCCP or Headquarters 
Director or his designee. The appropriate Regional Office will provide 
the appropriate contact point in cases of non-compliance. The Director, 
Office of Civil Rights (DOE HQ), when requested, will provide assistance 
to contracting officers resolving non-compliance issues by providing 
assistance in obtaining a final decision from the OFCCP.

[49 FR 11998, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984, as amended at 58 
FR 36365, July 7, 1993]



Sec. 922.804  Affirmative action programs.



Sec. 922.804-1  Nonconstruction.

    In the event a prospective contractor or subcontractor is entering 
into its first contract containing the Equal Opportunity clause, the 
contracting officer shall determine that the prospective contractor 
understands and appears able to conform to the requirements of the EEO 
clause.



Sec. 922.804-2  Construction.

    (a) Construction contracts, including cost-sharing contracts, are 
subject to OFCCP orders applicable in particular areas.
    (1) When a proposed nonexempt construction contract is within a 
geographic area where construction is subject to the provisions of 
Federal EEO Bid Conditions, Part I or Part II, the solicitation shall 
contain those bid conditions. The contracting officer shall include in 
such solicitation a provision that ``the offeror shall adhere to the 
affirmative action plan (bid conditions) set forth in this 
solicitation.''
    (2) Lists of areas for which OFCCP has designated specific 
affirmative action requirements are available through the Procurement 
Executive. Contracting officers should assure that this list and copies 
of pertinent orders are made available to all concerned DOE offices and 
to DOE contractors and construction subcontractors for work to be 
performed in the specified geographical areas.
    (b) Other nonexempt construction contracts. (1) When a proposed 
nonexempt construction contract is not in a ``plan area'' and is in the 
amount of $10,000 or more, offerors must agree to comply with the Equal 
Employment Opportunity clause.
    (2) When proposed nonexempt contracts of $1,000,000 or over are not 
in plan areas and have not been designated as high impact, offerors also 
must submit to the contracting officer details regarding specific 
affirmative action steps to be taken by the offeror in connection with 
all work under the contract. Such details shall include estimates of the 
percentage of minority group persons expected to be employed in each 
craft involved in the performance of the contract work. All 
solicitations for construction contracts shall reference the affirmative 
action requirements and the offeror's obligation to make good faith 
efforts to employ women in craft positions.
    (3) Pursuant to the OFCCP order dated August 30, 1976, agencies 
shall develop ``Special Bid Conditions'' for use on high impact projects 
in non-plan areas. These special bid conditions will include mandatory 
goals and timetables for the utilization of minorities. The Procurement 
Executive using the criteria issued by OFCCP will determine those 
projects that are ``high impact.'' The contracting officer is 
responsible for compliance with policies and procedures contained in the 
OFCCP ``Construction Compliance Program Operations Manual.'' Language 
for inclusion in solicitations or contracts contained in the manual may 
be

[[Page 361]]

modified, provided all of the requirements are retained. The contracting 
officer shall develop the goals and timetables and shall confer with the 
appropriate OFCCP regional office. The Office of Civil Rights will 
provide assistance as necessary, when requested. Special bid conditions 
will be submitted by the contracting officer to the appropriate OFCCP 
regional office for approval unless otherwise directed by the 
Procurement Executive. When special bid conditions are applicable, 
adequate presolicitation lead time should be allowed for submission of 
the special bid conditions to OFCCP national and regional offices.
    (c) An attempt to limit in any major respect the equal opportunity 
requirements included in an invitation for bids or request for proposals 
for a construction contract shall constitute grounds for a determination 
that the offeror does not qualify as a responsible offeror and for 
rejection of the bid or proposal. In the case of construction 
acquisition by DOE prime contractors, this determination shall be made 
only with the approval of the DOE contracting officer.

[49 FR 11998, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26, 1991, 
58 FR 36365, July 7, 1993; 59 FR 9106, Feb. 25, 1994]



Sec. 922.807  Exemptions.

    (c) Contracting officer requests for exemption from E.O. 11246 
should be directed to the Procurement Executive for submission to the 
Director, OFCCP.

  PART 923_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Sec.

Sec. 923.002 Policy.

                  Subpart 923.1_Sustainable Acquisition


Sec. 923.101 Policy.

Sec. 923.102 Applicability to contractors.

Sec. 923.103 Contract clauses.

                    Subpart 923.5_Drug-Free Workplace


Sec. 923.500 Scope of subpart.

Sec. 923.570 Workplace substance abuse programs at DOE sites.

Sec. 923.570-1 Applicability.

Sec. 923.570-2 Solicitation provision and contract clause.

Sec. 923.570-3 Suspension of payments, termination of contract, and 
          debarment and suspension actions.

   Subpart 923.9_Contractor Compliance With Environmental Management 
                                 Systems


Sec. 923.903 Contract clause.

  Subpart 923.70_Environmental, Energy and Water Efficiency, Renewable 
          Energy Technologies, and Occupational Safety Programs


Sec. 923.7001 Nuclear safety.

Sec. 923.7002 Worker Safety and Health.

Sec. 923.7003 Contract clauses.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.



Sec. 923.002  Policy.

    (a) Requirement. FAR 23.002 and Section 3(e) of Executive Order 
13423, Strengthening Federal Environmental, Energy and Transportation 
Management, require contracts for the operation of Government-owned 
facilities or Government-owned motor vehicle fleets to include 
provisions that obligate the contractor to comply with the requirements 
of Executive Order 13423 to the same extent as the Federal agency would 
be required to comply if the agency operated the facility or fleet.
    (b) Contract clause. Insert the clause at 970.5223-6, Executive 
Order 13423, Strengthening Federal Environmental, Energy, and 
Transportation Management, in contracts for Contractor operation of a 
DOE facility or motor vehicle fleet.

[75 FR 57692, Sept. 22, 2010]

                  Subpart 923.1_Sustainable Acquisition

    Source: 75 FR 57693, Sept. 22, 2010, unless otherwise noted.



Sec. 923.101  Policy.

    The Department has promoted energy efficient products as well as 
products with recycled or biobased content as these products have become 
more common and the market has become more energy and resource aware. 
All of these products and services and others

[[Page 362]]

with environmentally preferable attributes are captured in the DOE 
Sustainable Acquisition Program. Guidance on all these products may be 
found at: http://www.hss.energy.gov/pp/epp/.



Sec. 923.102  Applicability to contractors.

    Many of the Department's major facilities are operated by 
contractors. Provisions regarding those contracts may be found at part 
970 of this chapter. At other locations, the Department makes 
significant use of contractors to operate and maintain its facilities. 
As such, the Department encourages the greatest possible use of energy 
efficient and environmentally sustainable products and services by its 
facility support contractors. The DOE Sustainable Acquisition Program is 
to be followed by all contractors operating DOE facilities or motor 
vehicle fleets.



Sec. 923.103  Contract clauses.

    Insert the clause at 952.223-78, Sustainable Acquisition Program, or 
its Alternate I, in all contracts under which the contractor operates 
Government-owned facilities or Government-owned fleets or performs 
construction at a Government-owned facility. All such contracts should 
also include the following clauses: FAR 52.223-2, Affirmative 
Procurement of Biobased Products under Service and Construction 
Contracts; FAR 52.223-10, Waste Reduction Program; FAR 52.223-XX, 
Compliance with Environmental Management Systems (see 923.903 regarding 
the applicability of this clause to specific DOE contracts); FAR 52.223-
15, Energy Efficiency in Energy Consuming Products; and FAR 52.223-17, 
Affirmative Procurement of EPA-designated Items in Service and 
Construction Contracts.

                    Subpart 923.5_Drug-Free Workplace

    Source: 57 FR 32676, July 22, 1992, unless otherwise noted.



Sec. 923.500  Scope of subpart.

    For contracts performed at DOE sites, in lieu of 48 CFR subpart 
23.5, contracting activities shall use 923.570, Workplace Substance 
Abuse Programs at DOE Sites.

[75 FR 69012, Nov. 10, 2010]



Sec. 923.570  Workplace substance abuse programs at DOE sites.

    (a) The Department of Energy (DOE), as part of its overall 
responsibilities to protect the environment, maintain public health and 
safety, and safeguard the national security, has established policies, 
criteria, and procedures for contractors to develop and implement 
programs that help maintain a workplace free from the use of illegal 
drugs.
    (b) Regulations concerning DOE's contractor workplace substance 
abuse programs are promulgated at 10 CFR part 707, Workplace Substance 
Abuse Programs at DOE Sites.



Sec. 923.570-1  Applicability.

    The policies, criteria, and procedure specified in 10 CFR part 707, 
Workplace Substance Abuse Programs at DOE Sites, apply to contracts for 
work performed at sites owned or controlled by DOE and operated under 
the authority of the Atomic Energy Act of 1954, as amended, where such 
work--
    (a) Has a value of $25,000 or more; and
    (b) Has been determined by DOE to involve--
    (1) Access to or handling of classified information or special 
nuclear materials;
    (2) High risk of danger to life, the environment, public health and 
safety or national security; or
    (3) The transportation of hazardous materials to or from a DOE site.

[75 FR 69012, Nov. 10, 2010]



Sec. 923.570-2  Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 970.5223-
3, Agreement Regarding Workplace Substance Abuse Programs at DOE Sites, 
in solicitations where the work to be performed by the contractor will 
occur on sites owned or controlled by DOE and operated under the 
authority of the Atomic Energy Act of 1954, as amended, as specified in 
923.570-1, Applicability.
    (b) The contracting officer shall insert the clause at 970.5223-4, 
Workplace

[[Page 363]]

Substance Abuse Programs at DOE Sites, in contracts where the work to be 
performed by the contractor will occur on sites owned or controlled by 
DOE and operated under the authority of the Atomic Energy Act of 1954, 
as amended, as specified in 923.570-1, Applicability.

[57 FR 32676, July 22, 1992, as amended at 62 FR 42074, Aug. 5, 1997; 65 
FR 81007, Dec. 22, 2000; 74 FR 36365, July 22, 2009]



Sec. 923.570-3  Suspension of payments, termination of contract, and 
          debarment and suspension actions.

    (a) The contracting officer shall comply with the procedures of FAR 
23.506 regarding the suspension of contract payments, the termination of 
the contract for default, and the debarment and suspension of a 
contractor relative to failure to comply with 970.5223-4, Workplace 
Substance Abuse Programs at DOE Sites.
    (b) For purposes of 10 CFR part 707, the specific causes for 
suspension of contract payments, termination of the contract for 
default, and debarment and suspension of the contractor are--
    (1) The contractor fails to either comply with the requirements of 
10 CFR part 707 or perform in a manner consistent with its approved 
program;
    (2) The contractor has failed to comply with the terms of the clause 
at 970.5223-4, Workplace Substance Abuse Programs at DOE Sites; or
    (3) Such a number of contractor employees having been convicted of 
violations of criminal drug statutes for violations occurring on the 
DOE-owned or -controlled site, as to indicate that the contractor has 
failed to make a good faith effort to provide a drug free workplace.

[57 FR 32676, July 22, 1992, as amended at 62 FR 42074, Aug. 5, 1997; 65 
FR 81007, Dec. 22, 2000; 74 FR 36365, July 22, 2009; 75 FR 69012, Nov. 
10, 2010]

   Subpart 923.9_Contractor Compliance With Environmental Management 
                                 Systems



Sec.Sec. 923.903  Contract clause.

    The FAR Environmental Management Systems clause at 52.223-XX should 
be used in contracts where the contractor operates a DOE site or portion 
thereof. Some DOE sites have a single Environmental Management System 
for the site while others have separate Environmental Management Systems 
for various portions of the site which may be operated by different 
contractors. Check with local environmental management personnel 
regarding the applicability of the FAR 52.223-XX clause to a specific 
contract.

[75 FR 57693, Sept. 22, 2010]

  Subpart 923.70_Environmental, Energy and Water Efficiency, Renewable 
          Energy Technologies, and Occupational Safety Programs



Sec. 923.7001  Nuclear safety.

    The DOE regulates the nuclear safety of its major facilities under 
its own statutory authority derived from the Atomic Energy Act and other 
legislation. The DOE also regulates, under certain specific conditions, 
the use by its contractors of radioactive materials and ionizing 
radiation producing machines.

[49 FR 12003, Mar. 28, 1984, as amended at 59 FR 9106, Feb. 25, 1994; 74 
FR 36365, July 22, 2009]



Sec. 923.7002  Worker safety and health.

    (a)(1) Except when the clause prescribed at 970.1504-8(c) is used, 
the clauses entitled ``952.223-76, Conditional Payment of Fee or 
Profit--Safeguarding Restricted Data and Other Classified Information 
and Protection of Worker Safety and Health'' or ``952.223-77, 
Conditional Payment of Fee or Profit--Protection of Worker Safety and 
Health'' implement the requirements of section 234C of the Atomic Energy 
Act for the use of a contract clause that provides for an appropriate 
reduction in the fee or amount paid to the contractor under the contract 
in the event of a violation by the contractor or any contractor employee 
of any Departmental regulation relating to the enforcement of worker 
safety and health concerns. The clauses, in part, provide for reductions 
in the amount of fee, profit, or share of cost savings that is otherwise 
earned

[[Page 364]]

by the contractor for performance failures relating to worker safety and 
health violations under the Department's regulations.
    (2) The clauses provide for reductions of fee or profit that is 
earned by the contractor depending upon the severity of the contractor's 
failure to comply with contract terms or conditions relating to worker 
safety and health concerns. When reviewing performance failures that 
would otherwise warrant a reduction of earned fee, the contracting 
officer must consider mitigating factors that may warrant a reduction 
below the applicable range specified in the clauses. Some of the 
mitigating factors that must be considered are specified in the clauses.
    (3) The contracting officer must obtain the concurrence of the Head 
of the Contracting Activity--
    (i) Prior to effecting any reduction of fee or amounts otherwise 
payable to the contractor in accordance with the terms and conditions of 
the clause entitled ``Conditional Payment of Fee or Profit--Safeguarding 
Restricted Data and Other Classified Information and Protection of 
Worker Safety and Health'' or of the clause entitled ``Conditional 
Payment of Fee or Profit--Protection of Worker Safety and Health''; and
    (ii) For determinations that no reduction of fee is warranted for a 
particular performance failure(s) that would otherwise warrant a 
reduction.
    (4) Section 234C of the Atomic Energy Act provides that DOE shall 
either pursue civil penalties (implemented at 10 CFR part 851) for a 
violation under section 234C of the Atomic Energy Act (42 U.S.C. 2282c) 
or a contract fee reduction, but not both.
    (5) The contracting officer must coordinate with the Office of Price 
Anderson Enforcement within the Office of the Assistant Secretary for 
Health, Safety and Security (or with any designated successor office) 
before pursuing a contract fee reduction in the event of a violation by 
the contractor or any contractor employee of any Departmental regulation 
relating to the enforcement of worker health and safety concerns.

[68 FR 68777, Dec. 10, 2003, as amended at 74 FR 36365, July 22, 2009]



Sec. 923.7003  Contract clauses.

    (a) A decision to include or not include environmental, safety and 
health clauses in DOE contracts shall be made by the contracting officer 
in consultation with appropriate Office of Health, Safety and Security 
personnel.
    (b) When work is to be performed at a facility where the DOE will 
exercise its statutory authority to enforce occupational safety and 
health standards applicable to the working conditions of the contractor 
and subcontractor employees at such facility, the clause at 952.223-71, 
Integration of Environment, Safety, and Health into Work Planning and 
Execution, shall be used in such contract or subcontract if conditions 
(b)(1) through (3), are satisfied--
    (1) DOE work is segregated from the contractor's or subcontractor's 
other work;
    (2) The operation is of sufficient size to support its own safety 
and health services; and
    (3) The facility is government-owned, or leased by or for the 
account of the government.
    (c) In facilities not meeting the requirements of paragraph (b) of 
this section and which are a production or utilization facility where 
there is use or possession of source, special nuclear, or byproduct 
materials, DOE policy is not to enforce radiological safety and health 
standards pursuant to the contract or subcontract but rather to rely 
upon Nuclear Regulatory Commission (NRC) licensing requirements 
(including agreements with States under section 274 of the Atomic Energy 
Act). Pursuant to this policy, neither the clause found at 952.223-71, 
Integration of Environment, Safety, and Health into Work Planning and 
Execution, nor 952.223-72, Radiation Protection and Nuclear Criticality, 
is to be incorporated in the contracts or subcontracts for work at such 
facilities. Notwithstanding this general policy with respect to 
facilities not meeting the requirements of paragraph (b) of this 
section, the Secretary or his designee may determine in special cases, 
that DOE needs to enforce radiological safety and health standards 
pursuant to the contract or subcontract (see paragraph (d) of this 
section). When such a determination is made, the

[[Page 365]]

clause found at 952.223-72, Radiation Protection and Nuclear 
Criticality, shall be included in the contract or subcontract.
    (d) In facilities not meeting the requirements of paragraph (b) or 
(c) of this section and where there is a machine capable of producing 
ionizing radiation, it is DOE policy not to regulate such activity where 
it is adequately regulated by a State or other Federal agency. In such 
cases, neither clause 952.223-71, Integration of Environment, Safety, 
and Health into Work Planning and Execution, nor 952.223-72, Radiation 
Protection and Nuclear Criticality, shall be incorporated in the 
contract. Where the contracting officer, with appropriate environmental, 
safety and health advice determines that no State or other Federal 
agency exists to adequately regulate the operation and/or use of such 
machines, the clause found at 952.223-72, Radiation Protection and 
Nuclear Criticality, shall be included in the contract. The Assistant 
Secretary for Health, Safety and Security (or designee) shall be 
consulted to determine if a non-agreement State or a facility located in 
a non-agreement State has been reviewed by any other DOE office to 
establish that the State agency has the essential authority and 
resources for enforcing the radiation protection standards. This is to 
assure reasonable consistency in the assessment of radiation protection 
in non-agreement States and subsequent use of 952.223-72.
    (e) In a situation where the contractor or subcontractor is 
performing DOE work at more than one location, inclusion of either, or 
both, 952.223-71, Integration of Environment, Safety, and Health into 
Work Planning and Execution, and 952.223-72, Radiation Protection and 
Nuclear Criticality, may be appropriate. In such cases, the contract or 
subcontract must include language to specify the extent of applicability 
of each clause used. For example, with a parenthetical: (Applicable only 
to work performed at a contractor site which has 952.223-71 or 952.223-
72 clause in its contract or subcontract).
    (f) Except as prescribed in 970.1504-8(c), the contracting officer 
shall insert the clause at 952.223-76, Conditional Payment of Fee or 
Profit--Safeguarding Restricted Data and Other Classified Information 
and Protection of Worker Safety and Health, in all contracts that 
contain both the clause at 952.204-2, Security Requirements, and the 
clause at 952.250-70, Nuclear Hazards Indemnity Agreement.
    (g) Except as prescribed in 970.1504-8(c), the contracting officer 
shall insert the clause at 952.223-77, Conditional Payment of Fee or 
Profit--Protection of Worker Safety and Health, in all contracts that do 
not contain the clause at 952.204-2, Security Requirements, but that do 
contain the clause at 952.250-70, Nuclear Hazards Indemnity Agreement.
    (h) The contracting officer shall insert the clause at 952.223-75, 
Preservation of Individual Occupational Radiation Exposure Records, in 
contracts containing 952.223-71, Integration of Environment, Safety, and 
Health into Work Planning and Execution, or 952.223-72, Radiation 
Protection and Nuclear Criticality.

[74 FR 36365, July 22, 2009, as amended at 75 FR 69012, Nov. 10, 2010]

        PART 924_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 924.1_Protection of Individual Privacy

Sec.

Sec. 924.103 Procedures.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 75 FR 69013, Nov. 10, 2010, unless otherwise noted.

             Subpart 924.1_Protection of Individual Privacy



Sec. 924.103  Procedures.

    (b)(2) The Department of Energy rules and regulations on Privacy Act 
are implemented under 10 CFR part 1008.

[[Page 366]]

                      PART 925_FOREIGN ACQUISITION

                 Subpart 925.1_Buy American Act_Supplies

Sec.

Sec. 925.103 Exceptions.

          Subpart 925.2_Buy American Act_Construction Materials


Sec. 925.202 Exceptions.

                    Subpart 925.7_Prohibited Sources


Sec. 925.701-70 Prohibited sources.

Subpart 925.9 [Reserved]

        Subpart 925.10_Additional Foreign Acquisition Regulations


Sec. 925.1001 Waiver of right to examination of records.

         Subpart 925.70_Acquisition of Nuclear Hot Cell Services


Sec. 925.7000 Scope of subpart.

Sec. 925.7001 Definitions.

Sec. 925.7002 Policy.

Sec. 925.7003 Requirements.

Sec. 925.7004 Contract clause.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 12003, Mar. 28, 1984, unless otherwise noted.

                 Subpart 925.1_Buy American Act_Supplies



Sec. 925.103  Exceptions.

    (a) Contracting officers may make the determination required by 48 
CFR 25.103(a), provided such determination is factually supported in 
writing. If the contract is estimated to exceed $1 million, the Head of 
the Contracting Activity shall approve the determination.
    (b)(2)(ii) Proposals to add an article to the list of nonavailable 
articles at 48 CFR 25.104, with appropriate justifications, shall be 
submitted for approval by the Senior Procurement Executive and 
submission to the appropriate council.

[74 FR 36366, July 22, 2009, as amended at 75 FR 69013, Nov. 10, 2010]

          Subpart 925.2_Buy American Act_Construction Materials



Sec. 925.202  Exceptions.

    (a)(2) Contracting officers may make the determination required by 
48 CFR 25.202(a)(2), if the cost of the materials is not expected to 
exceed $100,000.

[75 FR 69013, Nov. 10, 2010]

                    Subpart 925.7_Prohibited Sources



Sec. 925.701-70  Prohibited sources.

    No contract may be awarded to a company owned by an entity 
controlled by a foreign government if performance of the contract will 
require access to proscribed information. See subpart 904.71 for 
additional guidance.

[74 FR 36366, July 22, 2009]

Subpart 925.9 [Reserved]

        Subpart 925.10_Additional Foreign Acquisition Regulations



Sec. 925.1001  Waiver of right to examination of records.

    (b) Determination and findings. A determination and findings 
required by 48 CFR 25.1001(b) shall be forwarded to either the Director, 
Office of Contract Management, Office of Procurement and Assistance 
Management, or for the National Nuclear Security Administration (NNSA), 
to the Director, Office of Acquisition and Supply Management, for 
coordination of the Secretary's approval.

[75 FR 69013, Nov. 10, 2010]

         Subpart 925.70_Acquisition of Nuclear Hot Cell Services

    Source: 58 FR 8910, Feb. 18, 1993, unless otherwise noted.



Sec. 925.7000  Scope of subpart.

    This subpart prescribes policies for selection for contract award of 
nuclear hot cell services when one of the competitors is a foreign 
company. This subpart does not apply to the acquisition and use of 
nuclear hot cell facilities on-site at a DOE-owned or -leased facility.

[[Page 367]]



Sec. 925.7001  Definitions.

    Costs related to the decommissioning of nuclear facilities, as used 
in this subpart, means any cost associated with the compliance with 
regulatory requirements governing the decommissioning of nuclear 
facilities licensed by the Nuclear Regulatory Commission. Such costs for 
foreign facilities and for Department of Energy facilities are costs of 
decommissioning associated with the compliance with foreign regulatory 
requirements or the Department's own requirements.
    Costs related to the storage and disposal of nuclear waste, as used 
in this subpart, means any costs, whether required by regulation or 
incurred as a matter of prudent business practice, associated with the 
storage or disposal of nuclear waste.
    Foreign company, as used in this subpart, means a company which 
offers to perform nuclear hot cell services at a facility which is not 
subject to the laws and regulations of the United States, its agencies, 
and its political subdivisions.
    Nuclear hot cell services, as used in this subpart, means services 
related to the examination of, or performance of various operations on, 
nuclear fuel rods, control assemblies, or other components that are 
emitting large quantities of ionizing radiation, after discharge from 
nuclear reactors, which are performed in specialized facilities located 
away from commercial nuclear power plants, generally referred to in the 
industry as ``hot cells.''
    Nuclear waste, as used in this subpart, means any radioactive waste 
material subject to regulation by the Nuclear Regulatory Commission or 
the Department of Energy, or in the case of foreign offers, by 
comparable foreign organizations.
    United States company, as used in this subpart, means a company 
which offers to perform nuclear hot cell services at a facility subject 
to the laws and regulations of the United States, its agencies, and its 
political subdivisions.

[58 FR 8910, Feb. 18, 1993, as amended at 74 FR 36366, July 22, 2009]



Sec. 925.7002  Policy.

    In selecting offer(s) for award of contracts for nuclear hot cell 
services, costs related to the decommissioning of nuclear facilities and 
storage and disposal of nuclear waste are to be considered in a way 
which affords United States and foreign companies an equal competition 
in accordance with 925.7003. Upon determining that no offer from a 
foreign firm has a reasonable chance of being selected for award, the 
requirements of this subpart will not apply.



Sec. 925.7003  Requirements.

    (a) For the acquisition of nuclear hot cell services under the 
conditions in paragraph (b) of this section, the selection official in 
evaluating competitive offers for selection purposes only shall--
    (1) Consider neither costs related to the decommissioning of nuclear 
waste facilities nor costs related to the storage and disposal of 
nuclear waste; or
    (2) Add these costs to offers of foreign companies.
    (b) The requirements of this section apply under the following 
circumstances--
    (1) One or more of the offers is submitted by a United States 
company and includes costs related to the decommissioning of nuclear 
facilities and costs related to the storage and disposal of nuclear 
waste because it is subject to such costs; and
    (2) One or more of the offers is submitted by a foreign company and 
does not include these types of costs. (A foreign company might not be 
subject to such costs or might not have to include these types of costs 
in its offer if the firm is subsidized in decommissioning activity or 
storage and disposal of nuclear waste, or a foreign government is 
performing the activities below the actual cost of the activity.)

[58 FR 8910, Feb. 18, 1993, as amended at 74 FR 36366, July 22, 2009]



Sec. 925.7004  Contract clause.

    The contracting officer shall insert the clause at 952.225-70, 
Subcontracting for Nuclear Hot Cell Services, in solicitations and 
contracts involving nuclear

[[Page 368]]

hot cell services. This clause does not flow down to second-tier 
subcontracts.

                  PART 926_OTHER SOCIOECONOMIC PROGRAMS

 Subpart 926.70_Implementation of Section 3021 of the Energy Policy Act 
                                 of 1992

Sec.

Sec. 926.7001 Policy.

Sec. 926.7002 Responsibilities.

Sec. 926.7003 Review of the procurement request.

Sec. 926.7004 Size standard for Energy Policy Act procurements.

Sec. 926.7005 Preferences under the Energy Policy Act.

Sec. 926.7006 Goal measurement and reporting requirements.

Sec. 926.7007 Solicitation provisions and contract clauses.

 Subpart 926.71_Implementation of Section 3161 of the National Defense 
                 Authorization Act for Fiscal Year 1993


Sec. 926.7101 Policy.

Sec. 926.7102 Definition.

Sec. 926.7103 Requirements.

Sec. 926.7104 Contract clause.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 60 FR 22300, May 5, 1995, unless otherwise noted.

 Subpart 926.70_Implementation of Section 3021 of the Energy Policy Act 
                                 of 1992



Sec. 926.7001  Policy.

    (a) Section 3021(a) of the Energy Policy Act of 1992 (Pub. L. 102-
486) specifies that the Department of Energy (DOE) shall, to the extent 
practicable, provide that not less than 10 percent of the total combined 
amounts obligated for competitively awarded contracts and subcontracts 
under the Energy Policy Act be expended with--
    (1) Small business concerns controlled by socially and economically 
disadvantaged individuals or by women;
    (2) Historically Black colleges and universities; or
    (3) Colleges and universities having a student body in which more 
than 20 percent of the students are Hispanic Americans or Native 
Americans.
    (b) These three groups are collectively referred to in this section 
as ``Energy Policy Act target groups.''
    (c) Awards of Energy Policy Act procurements should be in the 
following descending order of preference--
    (1) Competitive awards pursuant to a set-aside for small 
disadvantaged business;
    (2) Competitive awards to small businesses owned and controlled by 
socially and economically disadvantaged individuals and by women for 
Energy Policy Act requirements under the Small Business Administration's 
section 8(a) program; and
    (3) Competitive awards that provide an evaluation preference in 
accordance with 926.7006 to offerors from the Energy Policy Act target 
groups.
    (d) The DOE implementation of Section 3021 requirements with regard 
to the award of subcontracts under Energy Policy Act procurements is 
discussed at 926.7006.
    (e) Competitive procedures, for purposes of Energy Policy Act 
implementation, consist of awards under set-asides to small 
disadvantaged business and firms certified as 8(a) Small Business 
Administration and competitive procedures in accordance with 48 CFR 
subpart 15.6 and subpart 915.6.

[60 FR 22300, May 5, 1995, as amended at 75 FR 69013, Nov. 10, 2010]



Sec. 926.7002  Responsibilities.

    Offices initiating procurement requests have primary responsibility 
to identify potential contract requirements falling within the scope of 
section 3021 of the Energy Policy Act. Identification shall occur at the 
earliest possible point in time in the acquisition cycle, but not later 
than the submission of the procurement request to the contracting 
officer. For purposes of Section 3021, a contract requirement is any 
award that directly satisfies an Energy Policy Act program or 
requirement.



Sec. 926.7003  Review of the procurement request.

    Any Energy Policy Act procurement, including basic research 
contracts with educational institutions, shall be reviewed in accordance 
with the Small

[[Page 369]]

Business and 8(a) Program Review Procedures in order to ensure that full 
consideration is given to the potential for making Energy Policy Act 
awards.

[60 FR 22300, May 5, 1995, as amended at 61 FR 21977, May 13, 1996]



Sec. 926.7004  Size standard for Energy Policy Act procurements.

    The size standard for Energy Policy Act engineering services 
procurements (SIC 8711) shall be the size standard specified for 
military and aerospace equipment and military weapons.



Sec. 926.7005  Preferences under the Energy Policy Act.

    (a) Prime contracts. Solicitations for all competitive Energy Policy 
Act procurements not for 8(a) firms and in excess of the simplified 
acquisition threshold shall provide for an evaluation preference for 
offers received from entities from among the Energy Policy Act target 
groups. The evaluation criteria shall provide that in instances in which 
two or more proposals being considered for final selection are ranked as 
essentially equal after consideration of all technical and cost 
evaluation factors, and if one of these proposals is from an offeror 
from among an Energy Policy Act target group that offeror will be 
selected for award.
    (b) Subcontracts. (1) The contracting officer shall assure that all 
competitive Energy Policy Act solicitations over the simplified 
acquisition threshold contain--
    (i) A solicitation provision providing for consideration of the 
extent to which the offerors have provided for subcontracting 
opportunities to entities from among the Energy Policy Act target 
groups; and
    (ii) A clause providing for the maximum utilization of entities from 
among Energy Policy Act target groups in the performance of Energy 
Policy Act contracts.
    (2) In addition, the contracting officer shall assure that all 
competitive Energy Policy Act procurements expected to exceed $500,000 
($1,000,000 for construction) include a clause for reporting after award 
as part of the Small Business and Small Disadvantaged Business 
Subcontracting Plan process.

[60 FR 22300, May 5, 1995, as amended at 75 FR 69013, Nov. 10, 2010]



Sec. 926.7006  Goal measurement and reporting requirements.

    (a) General. The following types of contract awards for Energy 
Policy Act procurements shall be counted toward achievement by DOE of 
the 10 percent goal--
    (1) Any award set-aside for small disadvantaged business;
    (2) Any competitive section 8(a) award;
    (3) Any competitive award to one of the three target groups under an 
unrestricted procurement;
    (4) Any award to one of the three target groups conducted under 
simplified acquisition procedures in excess of the micro-purchase 
threshold; and,
    (5) Any competitively awarded subcontract to one of the three target 
groups under a prime award.
    (b) Prime contract awards. Award values and dollars obligated under 
prime contracts and modifications to prime contracts for Energy Policy 
Act requirements shall be reported through the Department of Energy 
Procurement and Assistance Data System.
    (c) Subcontract awards. The contractor shall be required to report, 
on an annual Federal Government fiscal year basis, its progress against 
Section 3021 goals by providing the actual dollar value of subcontract 
payments and the relationship of those payments to the incurred contract 
cost. If the contract includes reporting requirements under 48 CFR 
52.219-9, Small Business and Small Disadvantaged Business Subcontracting 
Plan, the contractor's progress against the Section 3021 goals shall be 
included as an addendum to Standard Form (SF) 294, Subcontracting Report 
for Individual Contracts, and/or SF 295, Summary Subcontract Report, as 
applicable, for the period that corresponds to the end of the Federal 
Government fiscal year.

[60 FR 22300, May 5, 1995, as amended at 75 FR 69013, Nov. 10, 2010]

[[Page 370]]



Sec. 926.7007  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 952.226-
70, Subcontracting Goals under Section 3021(a) of the Energy Policy Act 
of 1992 (Pub. L. 102-486) (Energy Policy Act), in solicitations for 
Energy Policy Act procurements.
    (b) The contracting officer shall insert the clause at 952.226-71, 
Utilization of Energy Policy Act Target Entities, in contracts for the 
Energy Policy Act requirements with an award value in excess of the 
simplified acquisition threshold.
    (c) The contracting officer shall insert the clause at 952.226-72, 
Energy Policy Act Subcontracting Goals and Reporting Requirements, in 
contracts for Energy Policy Act requirements with an award value in 
excess of $500,000 ($1,000,000 in the case of construction).
    (d) The contracting officer shall insert the provision at 952.226-
73, Energy Policy Act Target Group Representation, in solicitations for 
Energy Policy Act procurements.
    (e) The contracting officer shall insert the clause at 48 CFR 
52.219-14, Limitation on Subcontracting, in contracts for Energy Policy 
Act requirements with an entity from among the Energy Policy Act target 
groups.

[60 FR 22300, May 5, 1995, as amended at 62 FR 42074, Aug. 5, 1997; 75 
FR 69013, Nov. 10, 2010]

 Subpart 926.71_Implementation of Section 3161 of the National Defense 
                 Authorization Act for Fiscal Year 1993.

    Source: 62 FR 34861, June 27, 1997, unless otherwise noted.



Sec. 926.7101  Policy.

    Consistent with the requirements of Section 3161(c)(2), 42 U.S.C. 
7474h(c)(2), in instances where DOE has determined that a change in 
workforce at a DOE Defense Nuclear Facility is necessary, the 
Department, to the extent practicable, is required to provide employees 
under Department of Energy contracts whose employment in positions at 
such a facility is terminated with a preference in any hiring of the 
Department. Consistent with published DOE guidance regarding Section 
3161, such preference in hiring extends to hiring by DOE contractors and 
subcontractors.



Sec. 926.7102  Definition.

    Eligible employee means a current or former employee of a contractor 
or subcontractor employed at a DOE Defense Nuclear Facility--
    (1) Whose position of employment has been, or will be, involuntarily 
terminated (except if terminated for cause);
    (2) Who has met the eligibility criteria contained in Department of 
Energy guidance for contractor work force restructuring, as may be 
amended or supplemented from time to time; and
    (3) Who is qualified for a job vacancy with the Department or one of 
its contractors with respect to work under its contract with the 
Department at the time a position is available.

[62 FR 34861, June 27, 1997, as amended at 75 FR 69013, Nov. 10, 2010]



Sec. 926.7103  Requirements.

    (a) Section 3161, 42 U.S.C. 7474h, confers a continuing right to a 
preference in hiring to an eligible employee of Department of Energy 
Defense Nuclear Facilities. This right to a preference in hiring 
includes employment opportunities of any Department of Energy 
contractor, regardless of the place of performance of the contract. 
Accordingly, eligible former employees of contractors and subcontractors 
employed at Department of Energy Defense Nuclear Facilities, to the 
extent practicable, shall be provided a hiring preference in employment 
opportunities of other Department of Energy contractors for work under 
their contracts.
    (b) The Office of Worker and Community Transition (WT) is 
responsible for establishing policies and procedures relating to the 
Department of Energy implementation of Section 3161. Contracting 
Officers, in concert with representatives of the field office 
responsible for implementation of Section 3161 at the Department of 
Energy Defense Nuclear Facility and local counsel, should consult with 
the Office of Worker and Community Transition to

[[Page 371]]

determine applicability of Section 3161 requirements, including hiring 
preference requirements, for displaced workers.



Sec. 926.7104  Contract clause.

    The contracting officer shall insert the clause at 952.226-74, 
Displaced Employee Hiring Preference, in contracts (except for contracts 
for commercial items, pursuant to 41 U.S.C. 403) which exceed $500,000 
in value.

[62 FR 34861, June 27, 1997, as amended at 75 FR 69013, Nov. 10, 2010]

[[Page 372]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 927_PATENTS, DATA, AND COPYRIGHTS

                          Subpart 927.2_Patents

Sec.

Sec. 927.200 Scope of subpart.

Sec. 927.201 Authorization and consent.

Sec. 927.201-1 General.

Sec. 927.206 Refund of royalties.

Sec. 927.206-1 General.

Sec. 927.206-2 Clause for refund of royalties.

Sec. 927.207 Classified contracts.

Sec. 927.207-1 General.

         Subpart 927.3_Patent Rights Under Government Contracts


Sec. 927.300 General.

Sec. 927.302 Policy.

Sec. 927.303 Contract clauses.

Sec. 927.304 Procedures.

Sec. 927.370 [Reserved]

               Subpart 927.4_Technical Data and Copyrights


Sec. 927.400 Scope of subpart.

Sec. 927.402 Acquisition and use of technical data.

Sec. 927.402-1 General.

Sec. 927.402-2 Policy.

Sec. 927.403 Negotiations and deviations.

Sec. 927.404 Rights in technical data in subcontracts.

Sec. 927.404-70 Statutory programs.

Sec. 927.408 Cosponsored research and development activities.

Sec. 927.409 Solicitation provisions and contract clauses.

Subpart 927.70 [Reserved]

    Authority: Atomic Energy Act of 1954, as amended (42 U.S.C. 2168, 
2182, 2201); Federal Nonnuclear Energy Research and Development Act of 
1974 (42 U.S.C. 5908); Department of Energy National Security and 
Military Applications of Nuclear Energy Authorization Act of 1987 (42 
U.S.C. 7261a.); Department of Energy Organization Act (42 U.S.C. 7101 et 
seq.); National Nuclear Security Administration Act (50 U.S.C. 4201 et 
seq.)

    Source: 49 FR 12004, Mar. 28, 1984, unless otherwise noted.

                          Subpart 927.2_Patents

    Source: 60 FR 11815, Mar. 2, 1995, unless otherwise noted.



Sec. 927.200  Scope of subpart.

    When consulting 48 CFR part 27, subpart 27.2 of the FAR, consider 
``research, development, and demonstration'' to replace the phrase 
``research and development'' or ``R&D,'' for the purposes of DOE 
actions.



Sec. 927.201  Authorization and consent.



Sec. 927.201-1  General.

    In certain contracting situations, such as those involving research, 
development, or demonstration projects, consideration should be given to 
the impact of third party-owned patents covering technology that may be 
incorporated in the project which patents may ultimately affect 
widespread commercial use of the project results. In such situations, 
Patent Counsel shall be consulted to determine what modifications, if 
any, are to be made to the utilization of the Authorization and Consent 
and Patent Indemnity provisions or what other action might be deemed 
appropriate.



Sec. 927.206  Refund of royalties.



Sec. 927.206-1  General.

    The clause at 952.227-9, Refund of Royalties, obligates the 
contractor to inform DOE of the payment of royalties pertaining to the 
use of intellectual property, either patent or data related, in the 
performance of the contract. This information may result in 
identification of instances in which the Government already has a 
license for itself or others acting in its behalf or the right to 
sublicense others. Also, there may be pending antitrust actions or 
challenges to the validity of a patent or the proprietary nature of the 
data, or the contractor may be able to gain unrestricted access to the 
same data through other sources. In such situations the contractor may 
avoid the payment of a royalty in its entirety or may be charged a 
reduced royalty.

[[Page 373]]



Sec. 927.206-2  Clause for refund of royalties.

    The contracting officer shall insert the clause at 952.227-9, Refund 
of Royalties, in solicitations and contracts for experimental, research, 
developmental, or demonstration work or other solicitations and 
contracts in which the contracting officer believes royalties will have 
to be paid by the contractor or a subcontractor of any tier.



Sec. 927.207  Classified contracts.



Sec. 927.207-1  General.

    Unauthorized disclosure of classified subject matter, whether in a 
patent application or resulting from the issuance of a patent, may be a 
violation of the Atomic Energy Act of 1954, as amended, other laws 
relating to espionage and national security, and provisions of the 
proposed contract pertaining to disclosure of information.

         Subpart 927.3_Patent Rights Under Government Contracts



Sec. 927.300  General.

    (a) One of the primary missions of the Department of Energy is the 
use of its procurement process to ensure the conduct of research, 
development, and demonstration leading to the ultimate commercialization 
of efficient sources of energy. To accomplish its mission, DOE must work 
in cooperation with industry in the development of new energy sources 
and in achieving the ultimate goal of widespread commercial use of those 
energy sources. To this end, Congress has provided DOE with the 
authority to invoke an array of incentives to secure the 
commercialization of new technologies developed for DOE. One such 
important incentive is provided by the patent system.
    (b) Pursuant to 42 U.S.C. 2182 and 42 U.S.C. 5908, DOE takes title 
to all inventions conceived or first actually reduced to practice in the 
course of or under contracts with large, for-profit companies, foreign 
organizations, and others not beneficiaries of Pub. L. 96-517. 
Regulations dealing with Department's authority to waive its title to 
subject inventions, including the relevant statutory objectives, exist 
at 10 CFR part 784. Pursuant to that section, DOE may waive the 
Government's patent rights in appropriate situations at the time of 
contracting to encourage industrial participation, foster commercial 
utilization and competition, and make the benefits of DOE activities 
widely available to the public. In addition to considering the waiver of 
patent rights at the time of contracting, DOE will also consider the 
incentive of a waiver of patent rights upon the reporting of an 
identified invention when requested by such entities or by the employee-
inventor with the permission of the contractor. These requests can be 
made whether or not a waiver request was made at the time of 
contracting. Waivers for identified inventions will be granted where it 
is determined that the patent waiver will be a meaningful incentive to 
achieving the development and ultimate commercial utilization of 
inventions. Where DOE grants a waiver of the Government's patent rights, 
either at the time of contracting or after an invention is made, certain 
minimum rights and obligations will be required by DOE to protect the 
public interest.
    (c) Another major DOE mission is to manage the nation's nuclear 
weapons and other classified programs, where research and development 
procurements are directed toward processes and equipment not available 
to the public. To accomplish DOE programs for bringing private industry 
into these and other special programs to the maximum extent permitted by 
national security and policy considerations, it is desirable that the 
technology developed in these programs be made available on a selected 
basis for use in the particular fields of interest and under controlled 
conditions by properly cleared industrial and scientific research 
institutions. To ensure such availability and control, the grant of 
waivers in these programs may necessarily be more limited, either by the 
imposition of field of use restrictions or national security measures, 
than in other DOE programs.

[60 FR 11815, Mar. 2, 1995, as amended at 63 FR 10505, Mar. 4, 1998]

[[Page 374]]



Sec. 927.302  Policy.

    (a) Except for contracts with organizations that are beneficiaries 
of Public Law 96-517, the United States, as represented by DOE, shall 
normally acquire title in and to any invention or discovery conceived or 
first actually reduced to practice in the course of or under the 
contract, allowing the contractor to retain a nonexclusive, revocable, 
paid-up license in the invention and the right to request permission to 
file an application for a patent and retain title to any ensuing patent 
in any foreign country in which DOE does not elect to secure patent 
rights. DOE may approve the request if it determines that such approval 
would be in the national interest. The contractor's nonexclusive license 
may be revoked or modified by DOE only to the extent necessary to 
achieve expeditious practical application of the invention pursuant to 
any application for and the grant of an exclusive license in the 
invention to another party.
    (b) In contracts having as a purpose the conduct of research, 
development, or demonstration work and in certain other contracts, DOE 
may need to require those contractors that are not the beneficiaries of 
Public Law 96-517 to license background patents to ensure reasonable 
public availability and accessibility necessary to practice the subject 
of the contract in the fields of technology specifically contemplated in 
the contract effort. That need may arise where the contractor is not 
attempting to take the technology resulting from the contract to the 
commercial marketplace, or is not meeting market demands. The need for 
background patent rights and the particular rights that should be 
obtained for either the Government or the public will depend upon the 
type, purpose, and scope of the contract effort, impact on the DOE 
program, and the cost to the Government of obtaining such rights.
    (c) Provisions to deal specifically with DOE background patent 
rights are contained in paragraph (k) of the clause at 952.227-13. That 
paragraph may be modified with the concurrence of Patent Counsel in 
order to reflect the equities of the parties in particular contracting 
situations. Paragraph (k) should normally be deleted for contracts with 
an estimated cost and fee or price of $250,000 or less and may not be 
appropriate for certain types of study contracts; for planning 
contracts; for contracts with educational institutions; for contracts 
for specialized equipment for in-house Government use, not involving use 
by the public; and for contracts the work products of which will not be 
the subject of future procurements by the Government or its contractors.
    (d) The Assistant General Counsel for Technology Transfer and 
Intellectual Property shall:
    (1) Make the determination that whether reported inventions are 
subject inventions under the patent rights clause of the contract;
    (2) Determine whether and where patent protection will be obtained 
on inventions;
    (3) Represent DOE before domestic and foreign patent offices;
    (4) Accept assignments and instruments confirmatory of the 
Government's rights to inventions; and
    (5) Represent DOE in patent, technical data, and copyright matters 
not specifically reserved to the Head of the Agency or designee.

[60 FR 11816, Mar. 2, 1995]



Sec. 927.303  Contract clauses.

    (a) In solicitations and contracts for experimental, research, 
developmental, or demonstration work (but see (FAR) 48 CFR 27.304-3 
regarding contracts for construction work or architect-engineer 
services), the contracting officer shall include the clause:
    (1) At 952.227-13, Patent Rights Acquisition by the Government, in 
all such contracts other than those described in paragraphs (a)(2) and 
(a)(3) of this section;
    (2) At 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 (FAR) 48 CFR 27.301, except where 
the work of the contract is subject to an Exceptional Circumstances 
Determination by DOE; and
    (3) At 970.5227-10, 970.5227-11, or 970.5227-12, as discussed in 
970.27, Patent, Data, and Copyrights, in contracts for the management 
and operation of

[[Page 375]]

DOE laboratories and production facilities.
    (b) DOE shall not use the clause at (FAR) 48 CFR 52.227-12 except in 
situations where patent counsel grants a request for advance waiver 
pursuant to 10 CFR part 784 and supplies the contracting officer with 
that clause with appropriate modifications. Otherwise, in instances in 
which DOE grants an advance waiver or waives its rights in an identified 
invention pursuant to 10 CFR part 784, contracting officers shall 
consult with patent counsel for the appropriate clause.
    (c) Any contract that has as a purpose the design, construction, 
operation, or management integration of a collection of contracts for 
the same purpose, of a Government-owned research, development, 
demonstration or production facility must accord the Government certain 
rights with respect to further use of the facility by or on behalf of 
the Government upon termination of the contract. The patent rights 
clause in such contracts must include the following facilities license 
paragraph:

    [Insert appropriate paragraph no.] 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. Notwithstanding the acceptance or 
exercise by the Government of these rights, the Government may contest 
at any time the enforceability, validity or scope of, title to, any 
rights or patents herein licensed.

                           (End of paragraph)

[60 FR 11816, Mar. 2, 1995, as amended at 63 FR 10505, Mar. 4, 1998; 65 
FR 68935, Nov. 15, 2000; 65 FR 81007, Dec. 22, 2000]



Sec. 927.304  Procedures.

    Where the contract contains the clause at 952.227-11 and the 
contractor does not elect to retain title to a subject invention, DOE 
may consider and, after consultation with the contractor, grant requests 
for retention of rights by the inventor subject to the provisions of 35 
U.S.C. 200 et seq. This statement is in lieu of (FAR) 48 CFR 27.304-
1(c).

[60 FR 11816, Mar. 2, 1995]



Sec. 927.370  [Reserved]

               Subpart 927.4_Technical Data and Copyrights



Sec. 927.400  Scope of subpart.

    This subpart sets forth DOE's policy, procedures, and instructions 
for contract clauses with respect to the acquisition and use of 
technical data and copyrights in contracts or subcontracts entered into, 
with or for the benefit of the Government.



Sec. 927.402  Acquisition and use of technical data.



Sec. 927.402-1  General.

    (a) The provisions herein pertain to research, development, 
demonstration and supply contracts. Special considerations for contracts 
for the operation, design, or construction of Government-owned 
facilities are covered by subpart 970.27. Under DOE's broad charter to 
perform research, development, and demonstration work, in both nuclear 
and nonnuclear fields, and to meet the objectives stated in 927.402-2, 
DOE has extensive needs for technical data. The satisfaction of these 
needs and the achievement of DOE's objectives through a sound data 
policy are found in the balancing of the needs and equities of the 
Government, its contractors, and the general public.
    (b) It is important to keep a clear distinction between contract 
requirements for the delivery of technical data and rights in technical 
data. The legal rights which the Government acquires in technical data 
in DOE contracts, other than management and operating contracts (see 48 
CFR 970.2704)

[[Page 376]]

and other contracts involving the production of data necessary for the 
management or operation of DOE facilities or a DOE site, are set forth 
in Rights in Data--General clause at 48 CFR 52.227-14 as modified in 
accordance with 927.409 of this subpart. In those contracts involving 
the production of data necessary for the management or operation of DOE 
facilities or a DOE site, after consultation with Patent Counsel the 
clause at 48 CFR 970.5227-1 shall be used. However, those clauses do not 
obtain for the Government delivery of any data whatsoever. Rather, known 
requirements for the technical data to be delivered by the contractor 
shall be set forth as part of the contract. The Additional Technical 
Data Requirements clause at 48 CFR 52.227-16 may be used along with the 
Rights in Data--General clause to enable the contracting officer to 
require the contractor to furnish additional technical data, the 
requirement for which was not known at the time of contracting. There 
is, however, a built-in limitation on the kind of technical data which a 
contractor may be required to deliver under either the contract or the 
Additional Technical Data Requirements clause. This limitation is found 
in the withholding provision of paragraph (g) of the Rights in Data--
General clause at 48 CFR 52.227-14, as amended at 48 CFR 927.409(a), 
which provides that the Contractor need not furnish limited rights data 
or restricted computer software. Unless Alternate II or III to the 
Rights in Data--General clause is used, it is specifically intended that 
the contractor may withhold limited rights data or restricted computer 
software even though a requirement for technical data specified in the 
contract or called for delivery pursuant to the Additional Technical 
Data Requirements clause would otherwise require the delivery of such 
data.
    (c) In contracts involving access to certain categories of DOE-owned 
restricted data, as set forth in 10 CFR part 725, DOE has reserved the 
right to receive reasonable compensation for the use of its inventions 
and discoveries, including its related data and technology. Accordingly, 
in contracts where access to such restricted data is to be provided to 
contractors, the following parenthetical phrase shall be inserted after 
``contract data'' in paragraph (b)(2)(ii) of the clause at 952.227-75, 
after ``technical data'' in paragraph (b)(2) of the clause at 952.227-
77, or after ``technical data'' in paragraph (b)(2)(ii) of the clause at 
952.227-78 as appropriate: ``(except Restricted Data in category C-24, 
10 CFR part 725, in which DOE has reserved the right to receive 
reasonable compensation for the use of its inventions and discoveries, 
including related data and technology).'' In addition, there are other 
types of contract situations (e.g., no cost contracts for studies or 
evaluation) wherein the contractor is given access to restricted data. 
In such contract situations, limitations on the use of such data may be 
appropriate.

[49 FR 12004, Mar. 28, 1984, as amended at 63 FR 10505, Mar. 4, 1998; 65 
FR 81007, Dec. 22, 2000]



Sec. 927.402-2  Policy.

    The technical data policy is directed toward achieving the following 
objectives:
    (a) Making the benefits of the energy research, development and 
demonstration programs of DOE widely available to the public in the 
shortest practicable time;
    (b) Promoting the commercial utilization of the technology developed 
under DOE programs;
    (c) Encouraging participation by private persons in DOE energy 
research, development, and demonstration programs; and
    (d) Fostering competition and preventing undue market concentration 
or the creation or maintenance of other situations inconsistent with the 
antitrust laws.



Sec. 927.403  Negotiations and deviations.

    Contracting officers shall contact Patent Counsel assisting their 
contracting activity or the Assistant General Counsel for Technology 
Transfer and Intellectual Property for assistance in selecting, 
negotiating, or approving appropriate data and copyright clauses in 
accordance with the procedures set forth in this subpart and 48 CFR part 
27.4. In particular, contracting officers shall seek the prompt

[[Page 377]]

and timely advice of Patent Counsel regarding any situation not in 
conformance with this subpart and prescribed clauses, including the 
inclusion or modification of alternate paragraphs of the Rights in Data 
clause at 48 CFR 52.227-14, as amended at 48 CFR 927.409(a), the 
exclusion of specific items from said clause, the exclusion of the 
Additional Technical Data Requirements clause at 48 CFR 52.227-16, and 
the inclusion of any special provisions in a particular contract.

[63 FR 10505, Mar. 4, 1998]



Sec. 927.404  Rights in technical data in subcontracts. (DOE coverage--
          paragraphs (g), (k), (l), and (m))

    (g)(4) Contractors are required by paragraph (d)(3) of the clause at 
FAR 52.227-14, as modified pursuant to 48 CFR 927.409(a)(1), to acquire 
permission from DOE to assert copyright in any computer software first 
produced in the performance of the contract. This requirement reflects 
DOE's established software distribution program, recognized at FAR 
27.404(g)(2), and the Department's statutory dissemination obligations. 
When a contractor requests permission to assert copyright in accordance 
with paragraph (d)(3) of the Rights in Data--General clause as 
prescribed for use at 48 CFR 927.409(a)(1), Patent Counsel shall 
predicate its decision on the considerations reflected in paragraph (e) 
of the clause at 48 CFR 970.5227-2 Rights in Data--Technology Transfer.
    (k) Subcontracts. (1)(i) It is the responsibility of prime 
contractors and higher tier subcontractors, in meeting their obligations 
with respect to contract data, to obtain from their subcontractor the 
rights in, access to, and delivery of such data on behalf of the 
Government. Accordingly, subject to the policy set forth in this 
subpart, and subject to the approval of the contracting officer, where 
required, selection of appropriate technical data provisions for 
subcontracts is the responsibility of the prime contractors or higher-
tier subcontractors. In many, but not all instances, use of the Rights 
in Technical Data clause of FAR 52.227-14, as modified pursuant to 48 
CFR 927.409(a)(1), in a subcontract will provide for sufficient 
Government rights in and access to technical data. The inspection rights 
afforded in Alternate V of that clause normally should be obtained only 
in first-tier subcontracts having as a purpose the conduct of research, 
development, or demonstration work or the furnishing of supplies for 
which there are substantial technical data requirements as reflected in 
the prime contract.
    (ii) If a subcontractor refuses to accept technical data provisions 
affording rights in and access to technical data on behalf of the 
Government, the contractor shall so inform the contracting officer in 
writing and not proceed with the award of the subcontract without 
written authorization of the contracting officer.
    (iii) In prime contracts (or higher-tier subcontracts) which contain 
the Additional Technical Data Requirements clause at FAR 52.227-16, it 
is the further responsibility of the contractor (or higher-tier 
subcontractor) to determine whether inclusion of such clause in a 
subcontract is required to satisfy technical data requirements of the 
prime contract (or higher-tier subcontract).
    (2) As is the case for DOE in its determination of technical data 
requirements, the Additional Technical Data Requirements clause at FAR 
52.227-16 should not be used at any subcontracting tier where the 
technical data requirements are fully known. Normally, the clause will 
be used only in subcontracts having as a purpose the conduct of 
research, development, or demonstration work. Prime contractors and 
higher-tier subcontractors shall not use their power to award 
subcontracts as economic leverage to acquire rights in the 
subcontractor's limited rights data or restricted computer software for 
their private use, and they shall not acquire rights to limited rights 
data or restricted computer software on behalf of the Government for 
standard commercial items without the prior approval of Patent Counsel.
    (l) Contractor licensing. In many contracting situations the 
achievement of DOE's objectives would be frustrated if the Government, 
at the time of contracting, did not obtain on behalf of responsible 
third parties and itself limited license rights in and to limited

[[Page 378]]

rights data or restricted computer software or both necessary for the 
practice of subject inventions or data first produced or delivered in 
the performance of the contract. Where the purpose of the contract is 
research, development, or demonstration, contracting officers should 
consult with program officials and Patent Counsel to consider whether 
such rights should be acquired. No such rights should be obtained from a 
small business or non-profit organization, unless similar rights in 
background inventions of the small business or non-profit organization 
have been authorized in accordance with 35 U.S.C. 202(f). In all cases 
when the contractor has agreed to include a provision assuring 
commercial availability of background patents, consideration should be 
given to securing for the Government and responsible third parties at 
reasonable royalties and under appropriate restrictions, co-extensive 
license rights for data which are limited rights data and restricted 
computer software. When such license rights are deemed necessary, the 
Rights in Data-General clause at FAR 52.227-14 should be supplemented by 
the addition of Alternate VI as provided at 48 CFR 952.227-14. Alternate 
VI will normally be sufficient to cover limited rights data and 
restricted computer software for items and processes that were used in 
the contract and are necessary in order to insure widespread commercial 
use or practical utilization of a subject of the contract. The 
expression ``subject of the contract'' is intended to limit the 
licensing required in Alternate VI to the fields of technology 
specifically contemplated in the contract effort and may be replaced by 
a more specific statement of the fields of technology intended to be 
covered in the manner described in the patent clause at 48 CFR 952.227-
13 pertaining to ``Background Patents.'' Where, however, limited rights 
data and restricted computer software cover the main purpose or basic 
technology of the research, development, or demonstration effort of the 
contract, rather than subcomponents, products, or processes which are 
ancillary to the contract effort, the limitations set forth in 
subparagraphs (k)(1) through (k)(4) of Alternate VI of 48 CFR 952.227-14 
should be modified or deleted. Paragraph (k) of 48 CFR 952.227-14 
further provides that limited rights data or restricted computer 
software may be specified in the contract as being excluded from or not 
subject to the licensing requirements thereof. This exclusion can be 
implemented by limiting the applicability of the provisions of paragraph 
(k) of 48 CFR 952.227-14 to only those classes or categories of limited 
rights data and restricted computer software determined as being 
essential for licensing. Although contractor licensing may be required 
under paragraph (k) of 48 CFR 952.227-14, the final resolution of 
questions regarding the scope of such licenses and the terms thereof, 
including provisions for confidentiality, and reasonable royalties, is 
then left to the negotiation of the parties.
    (m) Access to restricted data. In contracts involving access to 
certain categories of DOE-owned Category C-24 restricted data, as set 
forth in 10 CFR part 725, DOE has reserved the right to receive 
reasonable compensation for the use of its inventions and discoveries, 
including its related data and technology. Accordingly, in contracts 
where access to such restricted data is to be provided to contractors, 
Alternate VII shall be incorporated into the rights in technical data 
clause of the contract. In addition, in any other types of contracting 
situations in which the contractor may be given access to restricted 
data, appropriate limitations on the use of such data must be specified.

[63 FR 10505, Mar. 4, 1998, as amended at 65 FR 81007, Dec. 22, 2000]



Sec. 927.404-70  Statutory programs.

    Occasionally, Congress enacts legislation that authorizes or 
requires the Department to protect from public disclosure specific data 
first produced in the performance of the contract. Examples of such 
programs are ``the Metals Initiative'' and section 3001(d) of the Energy 
Policy Act. In such cases DOE Patent Counsel is responsible for 
providing the appropriate contractual provisions for protecting the data 
in accordance with the statute. Generally, such clauses will be based 
upon the Rights in Data-General clause prescribed for use at 48 CFR 
927.409(a) with

[[Page 379]]

appropriate modifications to define and protect the ``protected data'' 
in accordance with the applicable statute. When contracts under such 
statutes are to be awarded, contracting officers must acquire from 
Patent Counsel the appropriate contractual provisions. Additionally, the 
contracting officer must consult with DOE program personnel and Patent 
Counsel to identify data first produced in the performance of the 
contract that will be recognized by the parties as protected data and 
what data will be made available to the public notwithstanding the 
statutory authority to withhold the data from public dissemination.

[63 FR 10506, Mar. 4, 1998]



Sec. 927.408  Cosponsored research and development activities.

    Because of the Department of Energy's statutory duties to 
disseminate data first produced under its contracts for research, 
development, and demonstration, the provisions of FAR 27.408 do not 
apply to cosponsored or cost shared contracts.

[63 FR 10506, Mar. 4, 1998]



Sec. 927.409  Solicitation provisions and contract clauses. (DOE 
          coverage-paragraphs (a), (h), (s), and (t))

    (a)(1) The contracting officer shall insert the clause at FAR 
52.227-14, Rights in Data-General, substituting the following paragraph 
(a) and including the following paragraph (d)(3) and Alternate V in 
solicitations and contracts if it is contemplated that data will be 
produced, furnished, or acquired under the contract; except contracting 
officers are authorized to use Alternate IV rather than paragraph (d)(3) 
in contracts for basic or applied research with educational institutions 
except where software is specified for delivery or except where other 
special circumstances exist:

    (a) Definitions. (1) Computer data bases, as used in this clause, 
means a collection of data in a form capable of, and for the purpose of, 
being stored in, processed, and operated on by a computer. The term does 
not include computer software.
    (2) Computer software, as used in this clause, means (i) computer 
programs which are data comprising a series of instructions, rules, 
routines, or statements, regardless of the media in which recorded, that 
allow or cause a computer to perform a specific operation or series of 
operations and (ii) data comprising source code listings, design 
details, algorithms, processes, flow charts, formulae, and related 
material that would enable the computer program to be produced, created, 
or compiled. The term does not include computer data bases.
    (3) Data, as used in this clause, means recorded information, 
regardless of form or the media on which it may be recorded. The term 
includes technical data and computer software. For the purposes of this 
clause, the term does not include data incidental to the administration 
of this contract, such as financial, administrative, cost and pricing, 
or management information.
    (4) Form, fit, and function data, as used in this clause, means data 
relating to items, components, or processes that are sufficient to 
enable physical and functional interchangeability, as well as data 
identifying source, size, configuration, mating, and attachment 
characteristics, functional characteristics, and performance 
requirements; except that for computer software it means data 
identifying source, functional characteristics, and performance 
requirements but specifically excludes the source code, algorithm, 
process, formulae, and flow charts of the software.
    (5) Limited rights data, as used in this clause, means data, other 
than computer software, developed at private expense that embody trade 
secrets or are commercial or financial and confidential or privileged. 
The Government's rights to use, duplicate, or disclose limited rights 
data are as set forth in the Limited Rights Notice of subparagraph 
(g)(2) of this section if included in this clause.
    (6) Restricted computer software, as used in this clause, means 
computer software developed at private expense and that is a trade 
secret; is commercial or financial and is confidential or privileged; or 
is published copyrighted computer software, including minor 
modifications of any such computer software. The Government's rights to 
use, duplicate, or disclose restricted computer software are as set 
forth in the Restricted Rights Notice of subparagraph (g)(3) of this 
section if included in this clause.
    (7) Technical data, as used in this clause, means recorded data, 
regardless of form or characteristic, that are of a scientific or 
technical nature. Technical data does not include computer software, but 
does include manuals and instructional materials and technical data 
formatted as a computer data base.
    (8) Unlimited rights, as used in this clause, means the rights of 
the Government to use, disclose, reproduce, prepare derivative works, 
distribute copies to the public, including by electronic means, and 
perform

[[Page 380]]

publicly and display publicly, in any manner, including by electronic 
means, and for any purpose whatsoever, and to have or permit others to 
do so.
    (d)(3) The Contractor agrees not to assert copyright in computer 
software first produced in the performance of this contract without 
prior written permission of the DOE Patent Counsel assisting the 
contracting activity. When such permission is granted, the Patent 
Counsel shall specify appropriate terms, conditions, and submission 
requirements to assure utilization, dissemination, and commercialization 
of the data. The Contractor, when requested, shall promptly deliver to 
Patent Counsel a duly executed and approved instrument fully 
confirmatory of all rights to which the Government is entitled.

    (2) However, rights in data in these specific situations will be 
treated as described, where the contract is--
    (i) For the production of special works of the type set forth in FAR 
27.405(a), but the clause at FAR 52.227-14, Rights in Data-General, 
shall be included in the contract and made applicable to data other than 
special works, as appropriate (See paragraph (i) of FAR 27.409);
    (ii) For the acquisition of existing data works, as described in FAR 
27.405(b) (See paragraph (j) of FAR 27.409);
    (iii) To be performed outside the United States, its possessions, 
and Puerto Rico, in which case agencies may prescribe different clauses 
(See paragraph (n) of FAR 27.409);
    (iv) For architect-engineer services or construction work, in which 
case contracting officers shall utilize the clause at FAR 52.227-17, 
Rights in Data-Special Works;
    (v) A Small Business Innovation Research contract (See paragraph (l) 
of FAR 27.409);
    (vi) For management and operation of a DOE facility (see 48 CFR 
970.2704) or other contracts involving the production of data necessary 
for the management or operation of DOE facilities or a DOE site, after 
consultation with Patent Counsel (See 927.402-1(b)); or
    (vii) Awarded pursuant to a statute expressly providing authority 
for the protection of data first produced thereunder from disclosure or 
dissemination. (See 927.404-70).
    (h) The contracting officer shall insert the clause at FAR 52.227-
16, Additional Data Requirements, in solicitations and contracts 
involving experimental, developmental, research, or demonstration work 
(other than basic or applied research to be performed solely by a 
university or college where the contract amount will be $500,000 or 
less) unless all the requirements for data are believed to be known at 
the time of contracting and specified in the contract. See FAR 
27.406(b). This clause may also be used in other contracts when 
considered appropriate.

                                * * * * *

    (s) Contracting officers shall incorporate the solicitation 
provision at FAR 52.227-23, Rights to Proposal Data (Technical), in all 
requests for proposals.
    (t) Contracting officers shall include the solicitation provision at 
952.227-84 in all solicitations involving research, developmental, or 
demonstration work.

[63 FR 10506, Mar. 4, 1998, as amended at 65 FR 81007, Dec. 22, 2000]

Subpart 927.70 [Reserved]

                      PART 928_BONDS AND INSURANCE

           Subpart 928.1_Bonds and Other Financial Protections

Sec.

Sec. 928.101 Bid guarantees.

Sec. 928.101-1 Policy on use.

Sec. 928.103 Performance and payment bonds for other than construction 
          contracts.

Sec. 928.103-3 Payment bonds.

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

                         Subpart 928.3_Insurance


Sec. 928.301 Policy.

Sec. 928.370 Service-type insurance policies.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 12010, Mar. 28, 1984, unless otherwise noted.

           Subpart 928.1_Bonds and Other Financial Protections

    Source: 61 FR 41708, Aug. 9, 1996, unless otherwise noted.

[[Page 381]]



Sec. 928.101  Bid guarantees.



Sec. 928.101-1  Policy on use.

    In addition to the restriction on use of bid guarantees in 48 CFR 
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.

[61 FR 41708, Aug. 9, 1996, as amended at 75 FR 29459, May 26, 2010]



Sec. 928.103  Performance and payment bonds for other than construction 
          contracts.



Sec. 928.103-3  Payment bonds.

    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.



Sec. 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.

                         Subpart 928.3_Insurance



Sec. 928.301  Policy.

    The DOE policies and procedures for indemnification of DOE 
contractors are set forth in 48 CFR part 50 and part 950.

[61 FR 41708, Aug. 9, 1996, as amended at 74 FR 36366, July 22, 2009; 75 
FR 29459, May 26, 2010]



Sec. 928.370  Service-type insurance policies.

    (a) Service-type insurance policies are cost-reimbursement type 
contracts or subcontracts in which the insurer provides claim and loss 
adjustment services on a cost reimbursement basis, which satisfies state 
and Federal insurance requirements.
    (b) Service-type insurance policies may be used with contracting 
officer approval, when one or more of the following conditions are 
present--
    (1) Pure risk commercial insurance is not available or, if 
available, cost is not considered reasonable;
    (2) Inherent risks in the contract are new and a part of the process 
of commercialization;
    (3) The service-type insurance is needed to implement jointly funded 
projects; or
    (4) The service-type insurance arrangement is considered in the 
Government's best interest.

[61 FR 41708, Aug. 9, 1996, as amended at 74 FR 36366, July 22, 2009]

            PART 931_CONTRACT COST PRINCIPLES AND PROCEDURES

                       Subpart 931.1_Applicability

Sec.

Sec. 931.102 Fixed-price contracts.

          Subpart 931.2_Contracts With Commercial Organizations


Sec. 931.205 Selected costs.

Sec. 931.205-18 Independent research and development (IR&D) and bid and 
          proposal (B&P) costs.

Sec. 931.205-19 Insurance and indemnification.

Sec. 931.205-32 Pre-contract costs.

Sec. 931.205-33 Professional and consultant service costs.

Sec. 931.205-47 Costs related to legal and other proceedings.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

                       Subpart 931.1_Applicability



Sec. 931.102  Fixed-price contracts.

    The intent of the first sentence of 48 CFR 31.102 is that applicable 
subparts of 48 CFR part 31 shall be used by the Government in--
    (a) Pricing fixed-price prime contracts and modifications,
    (b) Evaluating the reasonableness of a prime contractor's (or 
prospective prime contractor's) proposed subcontract (or subcontract 
modification) prices, and
    (c) Determining the allowability of contractor payments to 
subcontractors in accordance with the provisions of 48 CFR 31.204(b).

[49 FR 12011, Mar. 28, 1984, as amended at 75 FR 29459, May 26, 2010]

[[Page 382]]

          Subpart 931.2_Contracts With Commercial Organizations



Sec. 931.205  Selected costs.



Sec. 931.205-18  Independent research and development (IR&D) and bid and 
          proposal (B&P) costs.

    (c)(2) IR&D costs are recoverable under DOE contracts to the extent 
they are reasonable, allocable, not otherwise unallowable, and have 
potential benefit or relationship to the DOE program. The term ``DOE 
program'' encompasses the DOE total mission and its objectives. B&P 
costs are recoverable under DOE contracts to the extent they are 
reasonable, allocable, and not otherwise unallowable.

[60 FR 30004, June 7, 1995]



Sec. 931.205-19  Insurance and indemnification.

    (f) The contracting officer shall insert the clause at 952.231-71, 
Insurance-litigation and claims, instead of the clause at 48 CFR 52.228-
7, in
    (1) Non-management and operating cost reimbursement contracts 
exceeding $100,000,000, and
    (2) Non-management and operating contracts exceeding $100,000,000 
that include cost reimbursable elements exceeding $10,000,000 (e.g. 
contracts with both fixed-price and cost-reimbursable line items where 
the cost-reimbursable line items exceed $10,000,000 or time and 
materials contracts where the materials portions exceed $10,000,000.

[78 FR 25816, May 3, 2013]



Sec. 931.205-32  Pre-contract costs.

    (a) To the extent practical, known expenditures of pre-contract 
costs under DOE contracts should be governed by establishing advance 
understandings as contemplated by 48 CFR 31.109. Contracts that include 
authorized precontract costs shall include the ``Date of Incurrence of 
Cost'' clause specified at 952.231-70.
    (b) The following limitations apply to establishment of advance 
understandings relative to pre-contract costs:
    (1) Pre-contract cost authorizations shall not be used to cover a 
period in excess of 15 days, unless a longer period is approved by the 
HCA based upon a written finding that such an allowance is reasonable, 
and shall not be extended or renewed. A copy of the findings shall be 
forwarded to the Senior Procurement Executive at the time of approval. 
If prolonged coverage is necessary, a letter contract shall be issued.
    (2) All pre-contract cost authorizations shall be reviewed and 
approved at a management level above the contracting officer.
    (3) Retroactive precontract cost authorization and the predating of 
contractual agreements shall not be used.
    (4) Pre-contract cost authorizations shall not authorize the 
delivery or furnishing of any goods or services from a contractor until 
after the contract is executed.

[49 FR 12011, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984, as amended at 74 
FR 36366, 36378, July 22, 2009; 75 FR 29459, May 26, 2010]



Sec. 931.205-33  Professional and consultant service costs.

    (g) If the clause at 48 CFR 952.231-71 or the clause at 48 CFR 
970.5228-1 is included in the contract, or the contract is a non-
management and operating contract exceeding $100,000,000 that includes 
cost reimbursable elements exceeding $10,000,000 (for example, contracts 
with both fixed-price and cost-reimbursable line items where the cost-
reimbursable line items exceed $10,000,000 or time and materials 
contracts where the materials portions exceed $10,000,000), litigation 
and other legal costs are only allowable if both: incurred in accordance 
with 10 CFR part 719, Contractor Legal Management Requirements; and not 
otherwise made unallowable by law, regulation, or the terms of the 
contract.

[78 FR 25816, May 3, 2013]



Sec. 931.205-47  Costs related to legal and other proceedings.

    (h) Costs associated with whistleblower actions. (1) Definitions for 
purposes of this paragraph (h):
    Covered contractors and subcontractors means those contractors and 
subcontractors with contracts exceeding $5,000,000.

[[Page 383]]

    Employee whistleblower action means any action filed by an employee 
in Federal or state court for redress of a retaliatory act by a 
contractor and any administrative procedure initiated by an employee 
under 29 CFR part 24, 48 CFR subpart 3.9, 10 CFR part 708 or 42 U.S.C. 
7239.
    Retaliatory act means a discharge, demotion, reduction in pay, 
coercion, restraint, threat, intimidation or other similar negative 
action taken against an employee by a contractor as a result of an 
employee's activity protected as a whistleblower activity by a Federal 
or state statute or regulation.
    Settlement and award costs means defense costs and costs arising 
from judicial orders, negotiated agreements, arbitration, or an order 
from a Federal agency or board and includes compensatory damages, 
underpayment for work performed, and reimbursement for a complainant 
employee's legal counsel.
    (2) For costs associated with employee whistleblower actions where a 
retaliatory act is alleged against a covered contractor or 
subcontractor, the contracting officer--
    (i) May authorize reimbursement of costs on a provisional basis, in 
appropriate cases;
    (ii) Must consult with the Office of General Counsel whistleblower 
costs point of contact, who will consult with other Headquarters points 
of contact as appropriate, before making a final allowability 
determination; and
    (iii) Must determine allowability of defense, settlement and award 
costs on a case-by-case basis after considering the terms of the 
contract, relevant cost regulations, and the relevant facts and 
circumstances, including federal law and policy prohibiting reprisal 
against whistleblowers, available at the conclusion of the employee 
whistleblower action.
    (3) Covered contractors and subcontractors must segregate legal 
costs, including costs of in-house counsel, incurred in the defense of 
an employee whistleblower action so that the costs are separately 
identifiable.
    (4) If a contracting officer provisionally disallows costs 
associated with an employee whistleblower action for a covered 
contractor or subcontractor, funds advanced by the Department may not be 
used to finance costs connected with the defense, settlement and award 
of an employee whistleblower action.
    (5) Contractor defense, settlement and award costs incurred in 
connection with the defense of suits brought by employees under section 
2 of the Major Fraud Act of 1988 are excluded from coverage of this 
section.

[65 FR 62301, Oct. 18, 2000, as amended at 74 FR 36366, July 22, 2009; 
75 FR 29459, May 26, 2010]

                       PART 932_CONTRACT FINANCING

Sec.

Sec. 932.006 Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 932.006-4 Procedures.

          Subpart 932.1_Non-Commercial Item Purchase Financing


Sec. 932.102 Description of contract financing methods.

          Subpart 932.3_Loan Guarantees for Defense Production


Sec. 932.304 Procedures.

Sec. 932.304-2 Certificate of eligibility.

         Subpart 932.4_Advance Payments for Non-Commercial Items


Sec. 932.402 General.

Sec. 932.407 Interest.

             Subpart 932.5_Progress Payments Based on Costs


Sec. 932.501 General.

Sec. 932.501-2 Unusual progress payments.

                      Subpart 932.6_Contract Debts


Sec. 932.602 Responsibilities.

                   Subpart 932.8_Assignment of Claims


Sec. 932.803 Policies.

                      Subpart 932.9_Prompt Payment


Sec. 932.970 Implementing DOE policies and procedures.

               Subpart 932.70_DOE Loan Guarantee Authority


Sec. 932.7002 Authority.

Sec. 932.7003 Policies.

Sec. 932.7004 Procedures.

[[Page 384]]


Sec. 932.7004-1 Guaranteed loans for civilian programs.

Sec. 932.7004-2 Criteria.

Sec. 932.7004-3 Eligibility.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 12011, Mar. 28, 1984, unless otherwise noted.



Sec. 932.006  Reduction or suspension of contract payments upon finding 
          of fraud.



Sec. 932.006-4  Procedures.

    (a) The remedy coordination official shall follow the procedures 
identified in 48 CFR 32.006-4.
    (b) [Reserved]

[63 FR 5273, Feb. 2, 1998, as amended at 75 FR 29459, May 26, 2010]

          Subpart 932.1_Non-Commercial Item Purchase Financing



Sec. 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.

[61 FR 41708, Aug. 9, 1996]

          Subpart 932.3_Loan Guarantees for Defense Production



Sec. 932.304  Procedures.



Sec. 932.304-2  Certificate of eligibility.

    (h) Guaranteed loan applications shall be authorized and transmitted 
to the Federal Reserve Bank only by the Secretary or designee specified 
for that purpose.

         Subpart 932.4_Advance Payments for Non-Commercial Items



Sec. 932.402  General.

    (e)(1) The Head of the Contracting Activity or designee shall have 
the responsibility and authority for making findings and determinations, 
and for approval of contract terms concerning advance payments.
    (2) Before authorizing any advance payment arrangements, the 
approving official shall obtain the advice, and other inputs of the 
servicing finance office.



Sec. 932.407  Interest.

    (d)(4) Advance payments may be made without interest under cost-
reimbursement contracts for construction or engineering services.

             Subpart 932.5_Progress Payments Based on Costs



Sec. 932.501  General



Sec. 932.501-2  Unusual progress payments.

    (a)(3) For DOE, the Head of the Contracting Activity shall forward 
all requests which are considered favorable, with supporting 
information, to the DOE Senior Procurement Executive, who, after 
coordination with the Chief Financial Officer, Headquarters, will 
approve or deny the request. For NNSA, the NNSA Senior Procurement 
Executive will coordinate with the NNSA Chief Financial Officer before 
approving or denying the request.
    (d) Requests for unusual progress payments will not be considered as 
a handicap or adverse factor in the award of a contract; provided the 
bid or proposal is not conditioned on approval of such request.

[49 FR 12011, Mar. 28, 1984, as amended at 59 FR 9106, Feb. 25, 1994; 75 
FR 29458, May 26, 2010]

                      Subpart 932.6_Contract Debts



Sec. 932.602  Responsibilities.

    The Department of Energy (DOE) contracting officer has primary 
responsibility for determining the amount of contract debt and notifying 
the cognizant finance office of such debt due the Government. The 
servicing DOE finance office making payments under the contract has 
primary responsibility for debt collection.

[49 FR 12011, Mar. 28, 1984, as amended at 74 FR 36367, July 22, 2009. 
Redesignated and amended at 75 FR 29458, May 26, 2010]

[[Page 385]]

                   Subpart 932.8_Assignment of Claims



Sec. 932.803  Policies.

    (d) In the case of prime contracts, when it has been determined that 
the financing of contracts will be facilitated in the interest of DOE 
programs, it is the policy of DOE that such contracts provide, or be 
amended without consideration (see Assignment of Claims Act of 1940) to 
provide, in conformance with 48 CFR 32.804, that payments to be made to 
an assignee shall not be subject to reduction or setoff. In the case of 
subcontracts, when loans are made for the purpose of financing 
performance of subcontracts under DOE prime contracts, financing 
institutions or the Government as guarantor in those instances in which 
such loans are guaranteed should not be required to incur risks of loss 
by reason of possible diversion of assigned subcontracts proceeds for 
payment of other claims of the prime contractor against the borrower, 
otherwise unrelated to the assigned subcontracts. The Head of the 
Contracting Activity shall require the adoption of these policies and 
practices by DOE prime contractors with respect to DOE subcontract work. 
The Head of the Contracting Activity should inform the Chief Financial 
Officer, Headquarters of each DOE contractor who is unwilling to adopt 
policies consistent with this paragraph and the reasons given in support 
of the contractor's position.

[49 FR 12011, Mar. 28, 1984, as amended at 59 FR 9106, Feb. 25, 1994; 75 
FR 29459, May 26, 2010]

                      Subpart 932.9_Prompt Payment



Sec. 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. 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.

[61 FR 41708, Aug. 9, 1996]

               Subpart 932.70_DOE Loan Guarantee Authority



Sec. 932.7002  Authority.

    Guaranteed loan applications shall be authorized and transmitted to 
the Federal Reserve Board only by the Secretary, or designee specified 
for that purpose, and only when made pursuant to enabling legislation or 
other authority; e.g., by executive order or regulation.



Sec. 932.7003  Policies.

    The following policies governing the exercise of its loan guarantee 
authority have been established by DOE:
    (a) The use of the loan guarantee authority is not restricted to 
contracts or

[[Page 386]]

subcontracts of any particular type or class. Each case is to be 
evaluated on its own merits and under the particular circumstances 
applicable thereto.
    (b) The fact that a contract has been awarded as a result of 
competitive bidding should not, of itself, render the loan ineligible 
for guarantee by DOE if the contractor is financially responsible and 
its need for working capital is the result of the impact of a defense 
program or any other DOE program for which guaranteed loans are 
authorized.
    (c) The guarantee authority should, in general, not be used in 
connection with loans to contractors required to furnish performance 
bonds, except in those cases in which the time likely to be required for 
the surety or DOE to take over in the event of default will result in 
delays which cannot be tolerated by the particular program concerned. 
When performance bonds have been furnished, the surety shall be required 
to subordinate its rights in favor of the guaranteed loan.
    (d) The criterion that the materials or services to be provided 
cannot readily be acquired from alternative sources does not require the 
finding that the materials or services are absolutely unobtainable 
elsewhere. The criterion should be so applied as to permit guarantees of 
loans when, although the materials or services can be obtained 
elsewhere, such factors as the urgency of supply schedules, technical 
capacity of the contractor, comparative prices, and time and expense 
involved in reissuing the contract, including termination payment, 
establish that it is to the Government's advantage not to resort to 
alternative sources merely because the contractor or subcontractor may 
require a guaranteed loan.
    (e) If it is known at the time the contract is to be awarded that 
the low offeror who is technically qualified and competent to furnish 
the required materials and services will require a guaranteed loan, the 
contracting officer should obtain appropriate advice and in reaching a 
decision should consider at least the following--
    (1) The savings to be realized by awarding the contract to the low 
offeror;
    (2) The risk to the Government in guaranteeing a loan; and
    (3) The likelihood, if award is made to the second low offeror, of 
that offeror's applying for a guaranteed loan at a later date.

Extreme care should be exercised in rejecting a low bid or proposal 
simply because the low offeror requires a guaranteed loan.
    (f) The amount of the loan should bear reasonable relationship to 
such factors as the value and terms of the contract, the probable 
investment required to be made by the contractor in payrolls and 
inventories, the frequency with which contract payments are to be made, 
and the borrower's current working capital position.
    (g) Borrowings for working capital purposes under guaranteed loans 
shall be limited to the amount necessary to perform the contract for 
which the loan is sought. In order that the contractor will also use its 
own funds in the performance of the contracts, amounts outstanding under 
the loan or line-of-credit shall be limited to an amount not to exceed 
90 percent of the borrower's investment in its contracts, regardless of 
the total amount of the loan or line of credit authorized. The 
borrower's investment includes all items for which the borrower would be 
entitled to payment on performance or termination of contracts, but does 
not include any items for which no work has been done nor expenditures 
made.
    (h) Unless there are exceptional circumstances, the loan should 
mature not later than 30 days after the estimated date of final payment 
under the contract.

[49 FR 12011, Mar. 28, 1984, as amended at 59 FR 9106, Feb. 25, 1994; 74 
FR 36367, July 22, 2009]



Sec. 932.7004  Procedures.



Sec. 932.7004-1  Guaranteed loans for civilian programs.

    The procedures for authorizing a guaranteed loan under legislation 
other than section 301 of the Defense Production Act of 1950 (50 U.S.C. 
App. 2091) shall be essentially the same as those set forth in 48 CFR 
32.304, Procedures, 48 CFR 32.305, Loan Guarantees for Terminated 
Contracts, and 48 CFR 32.306 Loan Guarantee for Subcontacts;

[[Page 387]]

except that any contrary provisions required by enabling legislation 
authorizing the loan shall govern.

[49 FR 12011, Mar. 28, 1984, as amended at 75 FR 29459, May 26, 2010]



Sec. 932.7004-2  Criteria.

    (a) The materials or services to be furnished by the contractor are 
necessary to the Government interest.
    (b) The materials or services cannot as a practical matter be 
obtained from alternate sources without delay or impeding the 
Government's interest, except that no small business concern shall be 
held ineligible for the issuance of such guarantee by reason of 
alternative sources of supply.
    (c) The contractor has demonstrated its inability to obtain the 
necessary financing in conventional credit channels without the 
guarantee.
    (d) There is reasonable assurance that the loan can be repaid.
    (e) The contractor is competent to perform the contract.

[49 FR 12011, Mar. 28, 1984, as amended at 59 FR 9106, Feb. 25, 1994]



Sec. 932.7004-3  Eligibility.

    The applicant's eligibility for a guaranteed loan will be based on--
    (a) Contracting officer determinations and findings regarding items 
(a), (b) and (e) in 932.7004-2 as incorporated in a Certificate of 
Eligibility (48 CFR 32.304-2); and
    (b) The Chief Financial Officer's determination for items (c) and 
(d) in 932.7004-2 based on information contained in the application, the 
Federal Reserve Bank's report, and information furnished by the 
contracting activity concerned.

[49 FR 12011, Mar. 28, 1984, as amended at 59 FR 9106, Feb. 25, 1994; 74 
FR 36367, July 22, 2009; 75 FR 29459, May 26, 2010]

                PART 933_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 933.1_Protests

Sec.

Sec. 933.102 General.

Sec. 933.103 Protests to the agency.

Sec. 933.104 Protests to GAO.

Sec. 933.106 Solicitation provisions.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 51 FR 31336, Sept. 3, 1986, unless otherwise noted.

                         Subpart 933.1_Protests

    Source: 61 FR 41708, Aug. 9, 1996, unless otherwise noted.



Sec. 933.102  General.

    (b) The Heads of Contracting Activities (HCA), for contracts 
estimated to be within the limits of their delegated authority, may, 
without power of redelegation, provide corrective relief in response to 
a protest in accordance with 48 CFR 33.102(b).

[63 FR 53758, Oct. 16, 1997, as amended at 74 FR 36367, July 22, 2009]



Sec. 933.103  Protests to the agency.

    (i) Protests filed with the contracting officer before or after 
award shall be decided by the HCA except for the following cases, which 
shall be decided by the Senior Procurement Executive:
    (1) The protester requests that the protest be decided by the Senior 
Procurement Executive.
    (2) 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.
    (3) The HCA concludes that one or more of the issues raised in the 
protest have the potential for significant impact on Department of 
Energy (DOE) acquisition policy.
    (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 party. Both the protester and the 
Department must agree that the use of such techniques is

[[Page 388]]

appropriate. If the parties do not mutually agree to utilize ADR 
techniques 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 
48 CFR 33.104(a)(3)(iv). The Senior Procurement Executive (for protests 
at the Headquarters level or those specific HCA protests cited in 
paragraph (i) 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.

[74 FR 36367, July 22, 2009, as amended at 75 FR 29459, May 26, 2010]



Sec. 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 Government Accountability Office (GAO) of a protest 
filed directly with the GAO, a contract may not be awarded until the 
matter is resolved, unless authorized by the HCA in accordance with 48 
CFR 33.104(b). Before the HCA 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 Senior Procurement 
Executive. The finding shall address the likelihood that the protest 
will be sustained by the GAO.
    (c) Protests after award. Before the HCA authorizes performance, the 
finding required by 48 CFR 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 Senior 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 48 CFR 
33.104(f), shall be provided by the HCA making the award, after approval 
of the Senior Procurement Executive. If a DOE-wide policy issue is 
involved, the report shall be provided by the Senior 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. 933.106 Solicitation provisions.

[61 FR 41708, Aug. 9, 1996, as amended at 74 FR 36367, 36378, July 22, 
2009; 75 FR 29459, May 26, 2010]



Sec. 933.106  Solicitation provisions.

    (a) The contracting officer shall supplement the provision at 48 CFR 
52.233-2, Service of Protest, in solicitations for other than simplified 
acquisitions by adding the provision at 952.233-2.
    (b) The contracting officer shall include the provision at 952.233-4 
in solicitations for purchases above the simplified acquisition 
threshold.
    (c) The contracting officer shall include the provision at 952.233-5 
in solicitations for purchases above the simplified acquisition 
threshold.

[61 FR 41708, Aug. 9, 1996, as amended at 74 FR 36367, July 22, 2009; 75 
FR 29459, May 26, 2010]

[[Page 389]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

              PART 935_RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 935.010 Scientific and technical reports.

Sec. 935.070 Research misconduct.

Sec. 935.071 Contract clause.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 12016, Mar. 28, 1984, unless otherwise noted.



Sec. 935.010  Scientific and technical reports.

    (c) All research and development contracts which require reporting 
of research and development results conveyed in scientific and technical 
information (STI) shall include an instruction requiring the contractor 
to submit all STI, including reports and notices relating thereto, 
electronically to the U.S. Department of Energy (DOE), Office of 
Scientific and Technical Information (OSTI), using the DOE Energy Link 
System (E-link) at http://www.osti.gov/elink. The phrase ``reports and 
notices relating thereto'' does not include reports or notices 
concerning administrative matters such as contract cost or financial 
data and information. The DOE Order 241.1B Scientific and Technical 
Information Management, or its successor version, sets forth 
requirements for STI management.
    (d) As prescribed in DOE Order 241.1B, the contracting officer shall 
ensure that the requirements of the attendant Contractor Requirements 
Document are included in applicable contracts.

[75 FR 29458, May 26, 2010]



Sec. 935.070  Research misconduct.

    (a) Applicability. The DOE research misconduct policy set forth at 
10 CFR part 733 addresses research misconduct by individuals who 
propose, perform or review research of any kind for the Department of 
Energy pursuant to a contract. The regulation applies regardless of 
where the research or other activity is conducted or by whom.
    (b) Definition. Research misconduct means fabrication, 
falsification, or plagiarism in proposing, performing, or reviewing 
research, or in reporting research results. Research misconduct does not 
include honest error or differences of opinion. A finding of research 
misconduct means a determination, based on a preponderance of the 
evidence, that research misconduct has occurred, including a conclusion 
that there has been a significant departure from accepted practices of 
the relevant research community and that it be knowingly, intentionally, 
or recklessly committed.

[70 FR 37015, June 28, 2005]



Sec. 935.071  Contract clause.

    The contracting officer must insert the clause at 952.235-71, 
Research Misconduct, in contracts, including management and operating 
contracts, that involve research.

[70 FR 37015, June 28, 2005]

         PART 936_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

      Subpart 936.2_Special Aspects of Contracting for Construction

Sec.

Sec. 936.202-70 Specifications charges.

Sec. 936.202-71 Specifications.

                Subpart 936.6_Architect-Engineer Services


Sec. 936.602-70 DOE selection criteria.

Sec. 936.609-3 Work oversight in architect-engineer contracts.

Subpart 936.7 [Reserved]

                Subpart 936.71_Inspection and Acceptance


Sec. 936.7100 Scope of subpart.

Sec. 936.7101 Construction contracts.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 12016, Mar. 28, 1984, unless otherwise noted.

[[Page 390]]

      Subpart 936.2_Special Aspects of Contracting for Construction



Sec. 936.202-70  Specifications charges.

    (a) To support all invitations for bids, plans and specifications 
will be available on request to all prospective bidders, including 
general contractors, subcontractors, and material and equipment 
suppliers. Where the cost of reproduction is $10 or more, the charge 
shall be a minimum of $10 and subject to a maximum of $500, depending 
upon the size of the project and the number of drawings and the volume 
of specifications involved. Where the cost of reproduction is less than 
$10, the contracting officer has authority to make distribution at cost 
of reproduction, or free of charge, as a particular situation dictates.
    (b) No refund for the return of plans and specifications will be 
made except when the invitation is canceled. Under such circumstances, 
refund of payments will be made upon return of the plans and 
specifications in good condition to the issuing office.
    (c) Plans and specifications will be issued without charge to such 
organizations as The Associated General Contractors of America, American 
Road Builders' Association, Dodge Reports, Blue Reports, Brown's 
Letters, Inc., builders and contractors exchanges in the locality in 
which the project is to be constructed, and others that maintain public 
plan display rooms.
    (d) Payments received for plans and specifications shall be handled 
in accordance with internal financial procedures.
    (e) If the contracting officer desires to have the architect-
engineer or construction manager handle the furnishing of plans and 
specifications and payments, the invitations for bids should so state, 
and the architect-engineer or construction management contract shall 
provide the manner in which the receipts are to be handled, generally as 
a credit to the contract.
    (f) No charge will be made to original receivers of plans and 
specifications for revised sheets of drawings and revised pages of 
specifications which are issued by amendments to invitations.
    (g) Plans and specifications may be issued in complete sets only, or 
in complete sets and parts of sets, as the Head of the Contracting 
Activity determines to be best. If less than complete sets of plans and 
specifications are issued, the distribution should be based on an 
applicant's request for specific pages and drawing sheets.
    (h) When a non-refundable fee is to be charged, a provision 
substantially the same as 952.236-72 shall be included in the 
solicitation.

[49 FR 12016, Mar. 28, 1984, as amended at 60 FR 47308, Sept. 12, 1995; 
74 FR 36367, July 22, 2009. Redesignated at 75 FR 29458, May 26, 2010]



Sec. 936.202-71  Specifications.

    When developing specifications for the work to be performed, plan 
for ways to ensure that construction and demolition debris can be 
diverted or recycled in sufficient quantities as to ensure that the 
Agency goal from section 2(e) of Executive Order 13514 of diverting at 
least 50% of the debris stream may be attained.

[75 FR 57693, Sept. 22, 2010]

                Subpart 936.6_Architect-Engineer Services



Sec. 936.602-70  DOE selection criteria.

    Contracting officers or architect-engineer evaluation boards shall 
apply the evaluation criteria contained in this subsection, as 
appropriate, and any special criteria developed for individual 
selections. When special and additional criteria are to be used, they 
shall be set forth in the public announcement, and a written 
justification for their use shall be placed in the DOE file maintained 
for the project.
    (a) General qualifications, including--
    (1) Reputation and standing of the firm and its principal members;
    (2) Experience and technical competence of the firm in comparable 
work;
    (3) Past record in performing work for DOE, other Government 
agencies, and private industry, including projects or contracts 
implemented with no overruns; performance from the standpoint of cost 
including cost overruns (last 5 years); the nature, extent, and 
effectiveness of contractor's cost reduction program; quality of work;

[[Page 391]]

and ability to meet schedules including schedule overruns (last 5 years) 
(where applicable);
    (4) The volume of past and present workloads;
    (5) Interest of company management in the project and expected 
participation and contribution of top officials;
    (6) Adequacy of central or branch office facilities for the proposed 
work, including facilities for any special services that may be 
required;
    (7) Geographic location of the home office and familiarity with the 
locality in which the project is located; or
    (8) In addition to these requirements, consider the Architect-
Engineer firm's experience in energy efficiency, pollution prevention, 
waste reduction, and the use of recovered and environmentally preferable 
materials and other criteria at 48 CFR 36.602-1.
    (b) Personnel and organizations. (1) Specific experience and 
qualifications of personnel proposed for assignment to the project, 
including, as required for various phases of the work--
    (i) Technical skills and abilities in planning, organizing, 
executing, and controlling;
    (ii) Abilities in overall project coordination and management; and
    (iii) Experience in working together as a team;
    (2) Proposed project organization, delegations of responsibility, 
and assignments of authority;
    (3) Availability of additional competent, regular employees for 
support of the project, and the depth and size of the organization so 
that any necessary expansion or acceleration could be handled 
adequately;
    (4) Experience and qualifications of proposed consultants and 
subcontractors; and
    (5) Ability to assign adequate qualified personnel from the proposed 
organization (firms own organization, joint-venture organizations, 
consulting firms etc.) including key personnel and a competent 
supervising representative.
    (c) Additional (or special) criteria developed for the specific 
project shall be considered and evaluated as may be appropriate.

[49 FR 12016, Mar. 28, 1984, as amended at 68 FR 6358, Feb. 7, 2003; 74 
FR 36367, July 22, 2009; 75 FR 29459, May 26, 2010]



Sec. 936.609-3  Work oversight in architect-engineer contracts.

    In addition to the clause at 48 CFR 52.236-24, the contracting 
officer shall insert the clause at 952.236-71 in architect-engineer 
contracts.

[49 FR 12016, Mar. 28, 1984, as amended at 75 FR 29459, May 26, 2010]

Subpart 936.7 [Reserved]

                Subpart 936.71_Inspection and Acceptance



Sec. 936.7100  Scope of subpart.

    This subpart implements and supplements 48 CFR part 36 by 
prescribing the policies and requirements for inspection and acceptance 
under construction contracts.

[49 FR 12016, Mar. 28, 1984, as amended at 75 FR 29459, May 26, 2010]



Sec. 936.7101  Construction contracts.

    (a) Inspection services may be performed by the architect-engineer 
responsible for the design. Inspection services may not be procured from 
a construction contractor with respect to its own work.
    (b) When one contractor is to inspect the work of another, the 
inspection contractor will be given written instructions defining its 
responsibilities and stating that it is not authorized to modify the 
terms and conditions of the contract, to direct additional work, to 
waive any requirements of the contract, or to settle any claim or 
dispute. Copies of the instructions will be given to the contractor who 
is to be inspected, with a request to acknowledge receipt on a copy to 
be returned to the contracting officer. In this manner, both contractors 
are on express notice of the authority and limitations of the authority 
of the inspecting contractor.

                      PART 937_SERVICE CONTRACTING

             Subpart 937.2_Advisory and Assistance Services

Sec.

Sec. 937.204 Guidelines for determining availability of personnel.

[[Page 392]]

             Subpart 937.70_Protective Services Contracting


Sec. 937.7040 Contract clauses.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

             Subpart 937.2_Advisory and Assistance Services



Sec. 937.204  Guidelines for determining availability of personnel.

    (a) The determination, that there is sufficient DOE personnel with 
the requisite training and capabilities for each evaluation or analysis 
of proposals, shall be determined in accordance with 915.207-
70(f)(2)(i).
    (b) If it is determined that there is no such DOE personnel 
available, then other Federal agencies may have the required personnel 
with the requisite training and capabilities for the evaluation or the 
analysis of proposals. The determination, to use employees of other 
Federal agencies for the evaluation or analysis of proposals, shall be 
in accordance with 915.207-70(f)(2)(ii).
    (d) The determination, to employ non-Federal evaluators or advisors, 
shall be determined in accordance with 915.207-70(f)(3).
    (e) The determination that covered personnel are unavailable for a 
class of proposals, necessitating employment of non-Federal evaluators 
or advisors, shall be determined in accordance with 915.207-70(f)(3).

[75 FR 29458, May 26, 2010]

             Subpart 937.70_Protective Services Contracting



Sec. 937.7040  Contract clauses.

    The contracting officer shall insert the clause at 952.237-70 
entitled ``Collective bargaining agreements--protective services'' in 
all protective services solicitations and contracts involving DOE-owned 
facilities requiring continuity of services for public safety and 
national defense reasons. See also, 922.103-5, Contract clauses, which 
prescribes use of the clause at 48 CFR 52.222-1, Notice to the 
Government of Labor Disputes.

[58 FR 36151, July 6, 1993, as amended at 75 FR 29459, May 26, 2010]

             PART 939_ACQUISITION OF INFORMATION TECHNOLOGY

         Subpart 939.70_Implementing DOE Policies and Procedures

Sec.

Sec. 939.7000 Scope.

Sec. 939.7001 [Reserved]

Sec. 939.7002 Contractor acquisition of information technology.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 62 FR 53758, Oct. 16, 1997, unless otherwise noted.

         Subpart 939.70_Implementing DOE Policies and Procedures



Sec. 939.7000  Scope.

    This part sets forth the policies and procedures that apply to the 
acquisition of information technology by the Department of Energy (DOE).



Sec. 939.7001  [Reserved]



Sec. 939.7002  Contractor acquisition of information technology.

    (a) Management and operating (M&O) contracts. Except as provided in 
paragraph (c) of this section, M&O contractors and their subcontractors 
shall not be used to acquire information technology unrelated to the 
mission of the M&O contract either for sole use by DOE employees or 
employees of other DOE contractors, or for use by other Federal agencies 
or their contractors.
    (b) Other than M&O contracts. Where it has been determined that a 
contractor (other than an M&O contractor or its subcontractor) will 
acquire information technology either for sole use by DOE employees or 
for the furnishing of the information technology as government-furnished 
property under another contract, and after receiving written 
authorization from their cognizant DOE contracting office pursuant to 48 
CFR part 51, DOE contractors working under cost-reimbursement-type 
contracts may place orders against authorized contracts. All 
authorizations to contractors shall expressly and specifically reference 
the restriction regarding contractor use of the items acquired, cited at 
951.102(e)(4)(iii).

[[Page 393]]

    (c) Consolidated contractor acquisitions. When common information 
technology requirements in support of DOE programs have been identified 
and it is anticipated that the consolidation of such requirements will 
promote cost or other efficiencies, the Designated Senior Official for 
Information Management may authorize an M&O contractor to acquire 
information technology for use by the following--
    (1) One or more other contractor(s) performing on-site at the same 
DOE-owned or -leased facility as the M&O contractor; or
    (2) Other M&O contractors.

[62 FR 53758, Oct. 16, 1997, as amended at 74 FR 36367, July 22, 2009]

                PART 941_ACQUISITION OF UTILITY SERVICES

                Subpart 941.2_Acquiring Utility Services

Sec.

Sec. 941.201-70 DOE Directives.

Sec. 941.201-71 Use of subcontracts.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 61 FR 41710, Aug. 9, 1996, unless otherwise noted.

                Subpart 941.2_Acquiring Utility Services



Sec. 941.201-70  DOE Directives.

    Utility services (defined at 48 CFR 41.101) shall be acquired in 
accordance with 48 CFR part 41 and the Department of Energy (DOE) Order 
430.2B, Departmental Energy, Renewable Energy and Transportation 
Management, or its successor.

[75 FR 29458, May 26, 2010]



Sec. 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 970.4102-1 or if the prime contract is with a 
utility company.

[61 FR 41710, Aug. 9, 1996, as amended at 65 FR 81007, Dec. 22, 2000; 74 
FR 36367, July 22, 2009]

[[Page 394]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

           PART 942_CONTRACT ADMINISTRATION AND AUDIT SERVICES

             Subpart 942.2_Contract Administration Services

Sec.

Sec. 942.270-1 Contracting Officer's Representatives

Sec. 942.270-2 Contract Clause

                    Subpart 942.7_Indirect Cost Rates


Sec. 942.704 Billing rates.

Sec. 942.705 Final indirect cost rates.

Sec. 942.705-1 Contracting officer determination procedure.

Sec. 942.705-3 Educational institutions.

Sec. 942.705-4 State and local governments.

Sec. 942.705-5 Nonprofit organizations other than educational and state 
          and local governments.

                   Subpart 942.8_Disallowance of Costs


Sec. 942.803 Disallowing costs after incurrence.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 12026, Mar. 28, 1984, unless otherwise noted.

             Subpart 942.2_Contract Administration Services

    Source: 65 FR 81007, Dec. 22, 2000, unless otherwise noted.



Sec. 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.



Sec. 942.270-2  Contract clause.

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

[74 FR 36367, July 22, 2009]

                    Subpart 942.7_Indirect Cost Rates



Sec. 942.704  Billing rates.

    (b) When the contracting officer or auditor responsible for 
establishing billing rates, in accordance with 48 CFR 42.704, has not 
established such rates or such rates are not current for the performance 
periods (contractor FY) under contract, the DOE contracting officer 
responsible for administration of the contract shall establish an 
appropriate rate(s) for billing purposes. If the contractor holds more 
than one DOE contract covering that period of performance, the DOE 
office with the largest unliquidated obligations as of the beginning of 
that performance period shall take the lead in establishing the required 
billing rate for use on DOE contracts. Once appropriate billing rates 
are established by the responsible contracting officer designated by 48 
CFR 42.704, such rates shall be adopted by the contracting officer and 
all billings and payments shall be retroactively revised to reflect the 
agreed upon rate(s).

[65 FR 81007, Dec. 22, 2000, as amended at 75 FR 29459, May 26, 2010]



Sec. 942.705  Final indirect cost rates.



Sec. 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

[[Page 395]]

list of such business units is maintained by the Office of Procurement 
and Assistance Policy, within the Headquarters procurement organization.
    (b)(1) Pursuant to 48 CFR 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.

[61 FR 41710, Aug. 9, 1996, as amended at 74 FR 36368, July 22, 2009; 75 
FR 29459, May 26, 2010]



Sec. 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 Procurement 
and Assistance Policy, within the Headquarters procurement organization.

[61 FR 41710, Aug. 9, 1996, as amended at 74 FR 36368, July 22, 2009]



Sec. 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 
Procurement and Assistance Policy, within the Headquarters procurement 
organization.

[61 FR 41710, Aug. 9, 1996, as amended at 74 FR 36368, July 22, 2009]



Sec. 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 Procurement and Assistance Policy, within the Headquarters 
procurement organization, distributes to each CDO the rates established 
by the cognizant agency.

[61 FR 41710, Aug. 9, 1996, as amended at 74 FR 36368, July 22, 2009]

                   Subpart 942.8_Disallowance of Costs



Sec. 942.803  Disallowing costs after incurrence.

    (a) Contracting officer receipt of vouchers. Vouchers and invoices 
submitted to DOE shall be submitted to the contracting officer or 
designee for review and approval for payment. If the examination of a 
voucher or invoice raises a question regarding the allowability of a 
cost submitted therein, the contracting officer, shall:
    (1) Hold informal discussion with the contractor as appropriate.
    (2) Issue a notice (letter, memo, etc.) to the contractor advising 
of cost disallowed or to be disallowed and advising the contractor that 
it may:
    (i) Submit a written claim as to why the cost should be reimbursed--
if in disagreement with the disallowance.
    (ii) File a claim under the disputes clause, which will be processed 
in accordance with disputes procedures in the event disagreements cannot 
be settled.
    (3) Process the voucher or invoice for payment and advise the 
finance office to deduct the disallowed cost when scheduling the voucher 
for payment.
    (c) Auditor reports and other sources of questioned costs. (1) From 
time to time reports are received from professional auditors that may 
question the allowability of an incurred cost. Such reports are received 
as the result of auditors, in their independent role under OMB Circular 
A-73 or their own charters, scheduling and conducting financial or 
compliance audits of government contracts or as the result of an 
independent request for auditor service.
    (2) When auditor reports or other notifications question cost or 
consider

[[Page 396]]

them unallowable, the contracting officer shall follow up such reports 
and resolve all such cost issues promptly by determining, through 
discussions with the contractor and/or auditor within six months of the 
audit report date, or date of receipt if a non-Federal audit. One of the 
following courses of action shall be pursued:
    (i) Accept and implement audit recommendations as submitted.
    (ii) Accept the principle of the audit recommendation but reject the 
cost questioned amount.
    (iii) Reject audit findings and recommendations.
    (3) When implementing the accepted course of action, the contracting 
officer shall--
    (i) Hold discussions with the auditor and contractor as appropriate.
    (ii) Issue a notice in writing advising the contractor of the 
government's intent to disallow the cost questioned, if the contracting 
officer agrees with the auditor concerning the questioned costs.
    (iii) Negotiate a mutual settlement of questioned costs if they are 
agreed with in principle but there is a difference of opinion as to a 
proper amount.
    (iv) Negotiate a mutual settlement of questioned costs if the 
auditor recommendations are acceptable to the contracting officer but 
the contractor does not accept the finding or disallowance.
    (v) Issue a final decision of the contracting officer disallowing 
the questionable cost where differences cannot be resolved, advising of 
the contractor's right to appeal the decision, and advising the 
procedure to be followed if it is decided to make such an appeal.
    (vi) Initiate immediate recoupment actions for all disallowed cost 
owed the government by:
    (A) Requesting the contractor to provide a credit adjustment 
(offset) against amounts billed the government on the next or future 
invoice(s) if such shall be submitted under a contract for which the 
disallowed cost applies.
    (B) Deducting (offset) the disallowed cost from the next or future 
invoice(s) submitted under the contract; if the contractor provides no 
adjustment under the contract for which the disallowed cost applies; 
provided such reduction is deemed appropriate.
    (C) Advising the contractor that a refund shall be directly payable 
to the government in situations where there are insufficient payments 
owed by the government to effect recovery via (A) or (B) above or an 
offset is otherwise inappropriate.
    (vii) Promptly notify the appropriate finance office of refunds 
directly payable to the government to ensure proper billing and follow-
up action for collection.

[49 FR 12026, Mar. 28, 1984, as amended at 59 FR 9107, Feb. 25, 1994; 75 
FR 29458, May 26, 2010]

                      PART 945_GOVERNMENT PROPERTY

Sec.

Sec. 945.000 Scope of part.

                          Subpart 945.1_General


Sec. 945.101 Definitions.

Sec. 945.102-70 Reporting of contractor-held property.

Sec. 945.102-71 Maintenance of records.

Sec. 945.102-72 Reporting of contractor sensitive property inventory.

Sec. 945.170 Providing Government property to contractors.

Sec. 945.170-1 Policy.

Subpart 945.3--945.4 [Reserved]

        Subpart 945.5_Support Government Property Administration


Sec. 945.570 Management of Government property in the possession of 
          contractors.

Sec. 945.570-1 Acquisition of motor vehicles.

Sec. 945.570-2 Disposition of motor vehicles.

Sec. 945.570-3 Reporting motor vehicle data.

          Subpart 945.6_Reporting, Reutilization, and Disposal


Sec. 945.602 Reutilization of Government property.

Sec. 945.602-3 Screening.

Sec. 945.602-70 Local screening.

Sec. 945.603 Abandonment, destruction or donation of excess personal 
          property.

Sec. 945.604 Disposal of surplus property.

Sec. 945.604-1 Disposal methods.

Sec. 945.670 DOE disposal methods.

Sec. 945.670-1 Plant clearance function.

Sec. 945.670-2 Disposal of radioactively contaminated personal property.

Sec. 945.670-3 Waiver of screening requirements.

[[Page 397]]


Sec. 945.671 Contractor inventory in foreign countries.

    Authority: 42 U.S.C. 7101, et seq.; 50 U.S.C. 2401, et seq.

    Source: 77 FR 74387, Dec. 14, 2012, unless otherwise noted.



Sec. 945.000  Scope of part.

    This part and 48 CFR part 45 are not applicable to the management of 
property by management and operating contractors, unless otherwise 
stated.

                          Subpart 945.1_General



Sec. 945.101  Definitions.

    Capital equipment, as used in this part, means personal property 
items having anticipated service life in excess of two years, regardless 
of type of funding, and having the potential for maintaining their 
integrity as capital items, i.e., not expendable due to use; dollar 
threshold for capital equipment is as established by the DOE Financial 
Management Handbook.
    Personal property, as used in this part, means property of any kind 
or interest therein, except real property, records of the Federal 
Government, and nuclear and special source materials, atomic weapons, 
and by-product materials.
    Sensitive property, as used in this part, has the meaning contained 
in 48 CFR 45.101.



Sec. 945.102-70  Reporting of contractor-held property.

    The Head of the Contracting Activity may be required to report the 
following information to the Personal Property Policy Division, within 
the Headquarters procurement organization:
    (a) Name and address of each contractor with DOE personal property 
in their possession, or in the possession of their subcontractors (do 
not include grantees, cooperative agreements, interagency agreements, or 
agreements with state or local governments).
    (b) Contract number of each DOE contract with Government personal 
property.
    (c) Date contractor's property management system was approved and by 
whom (DOE office, Defense Contract Management Command, or the Office of 
Naval Research).
    (d) Date of most current appraisal of contractor's property 
management system, who conducted the appraisal, and status of the system 
(satisfactory or unsatisfactory).
    (e) Total acquisition value of DOE personal property for each DOE 
contract administered by the contracting activity.



Sec. 945.102-71  Maintenance of records.

    The contracting activity shall maintain records of approvals and 
reviews of contractors' property management systems, the dollar value of 
DOE property as reported on the most recent semiannual financial report, 
and records on property administration delegations to other Government 
agencies.



Sec. 945.102-72  Reporting of contractor sensitive property inventory.

    The contractor must develop and maintain a list of personal property 
items considered sensitive. Sensitive Items List must be approved by the 
PA/OPMO annually.



Sec. 945.170  Providing Government property to contractors.



Sec. 945.170-1  Policy.

    The DOE has established specific policies concerning special nuclear 
material requirements needed under DOE contracts for fabricating end 
items using special nuclear material, and for conversion or scrap 
recovery of special nuclear material. Special nuclear material means 
uranium enriched in the isotopes U233 or U235, and/or plutonium, other 
than PU238. The policies to be followed are:
    (a) Special nuclear material will be furnished by the DOE for fixed-
price contracts and subcontracts, at any tier, which call for the 
production of special nuclear products, including fabrication and 
conversion, for Government use. (The contractor or subcontractor must 
have the appropriate license or licenses to receive the special nuclear 
material. The Nuclear Regulatory Commission is the licensing agency.)
    (b) Contracts and subcontracts for fabrication of end items using 
special nuclear material generally shall be of

[[Page 398]]

the fixed-price type. Cost-type contracts or subcontracts for 
fabrication shall be used only with the approval of the Head of the 
Contracting Activity. This approval authority shall not be further 
delegated.
    (c) Contracts and subcontracts for conversion or scrap recovery of 
special nuclear material shall be of a fixed-price type, except as 
otherwise approved by the Head of the Contracting Activity.

Subparts 945.3--945.4 [Reserved]

        Subpart 945.5_Support Government Property Administration



Sec. 945.570  Management of Government property in the possession of 
          contractors.



Sec. 945.570-1  Acquisition of motor vehicles.

    (a) GSA Interagency Fleet Management System (GSA-IFMS) is the first 
source of supply for providing motor vehicles to contractors; however, 
contracting officer approval is required for contractors to utilize this 
service.
    (b) Prior approval of GSA must be obtained before--
    (1) Fixed-price contractors can use the GSA-IFMS;
    (2) DOE-owned motor vehicles can be furnished to any contractor in 
an area served by GSA-IFMS; and
    (3) A contractor can commercially lease a motor vehicle for more 
than 60 days after GSA has determined that it cannot provide the 
required vehicle.
    (c) GSA has the responsibility for acquisition of motor vehicles for 
Government agencies. All requisitions shall be processed via GSA 
AutoChoice in accordance with 41 CFR 101-26.501.
    (d) Contractors shall submit all motor vehicle requirements to the 
contracting officer for approval.
    (e) The acquisition of sedans and station wagons is limited to 
small, subcompact, and compact vehicles which meet Government fuel 
economy standards. The acquisition of light trucks is limited to those 
vehicles which meet the current fuel economy standards set by Executive 
Orders 12003 and 12375.
    (f) Cost reimbursement contractors may be authorized by the 
contracting officer to utilize GSA Federal Supply Schedule 751, Leasing 
of Automobiles and Light Trucks, for short term rentals not to exceed 60 
days, and are required to utilize available GSA consolidated leasing 
programs for long term (60 continuous days or longer) commercial leasing 
of passenger vehicles and light trucks.
    (g) The Personal Property Policy Division, within the Headquarters 
procurement organization shall certify all requisitions prior to 
submittal to GSA for the following:
    (1) The acquisition of sedans and station wagons.
    (2) The lease (60 continuous days or longer) of any passenger 
automobile.
    (3) The acquisition or lease (60 continuous days or longer) of light 
trucks less than 8,500 GVWR.
    (h) Purchase requisitions for other motor vehicles may be submitted 
directly to GSA when approved by the contracting officer.
    (i) Contractors shall thoroughly examine motor vehicles acquired 
under a GSA contract for defects. Any defect shall be reported promptly 
to GSA, and repairs shall be made under terms of the warranty.



Sec. 945.570-2  Disposition of motor vehicles.

    (a) The contractor shall dispose of DOE-owned motor vehicles as 
directed by the contracting officer.
    (b) DOE-owned motor vehicles may be disposed of as exchange/sale 
items when directed by the contracting officer; however, a designated 
DOE official must execute the Title Transfer forms (SF-97).



Sec. 945.570-3  Reporting motor vehicle data.

    (a) Contractors conducting motor vehicle operations shall forward 
annually to the contracting officer their plan for acquisition of motor 
vehicles for the next fiscal year for review, approval and submittal to 
DOE Headquarters. This plan shall conform to the fuel efficiency 
standards for motor vehicles for the applicable fiscal year, as 
established by Executive Orders 12003 and 12375 and as implemented by 
GSA and current DOE directives. Additional guidance for the preparation 
of the

[[Page 399]]

plan will be issued by the contracting officer, as required.
    (b) Contractors operating DOE-owned, GSA leased and/or commercially 
leased (for 60 continuous days or longer) motor vehicles shall prepare 
and electronically submit the following annual year-end reports to the 
contracting officer:
    (1) Annual Motor Vehicle Fleet Report.
    (2) Federal Fleet Report (41 CFR 102-34.335).

          Subpart 945.6_Reporting, Reutilization, and Disposal



Sec. 945.602  Reutilization of Government property.



Sec. 945.602-3  Screening.

    (a) Standard screening. (1) Prior to reporting excess property to 
GSA, all reportable property, as identified in Federal Management 
Regulations 41 CFR 102-36.220, shall be reported for centralized 
screening in the DOE Energy Asset Disposal System (EADS). Reportable 
excess personal property will be screened internally via the EADS system 
for a period of 12 days.
    (i) EADS requires the inclusion of a six character Activity Address 
Code (AAC) which identifies the reporting contractor. The AAC will be 
assigned by DOE Headquarters upon receipt of a formal letter of 
authorization signed by the DOE contracting officer.
    (ii) Requests to establish, extend or delete an Activity Address 
Code shall be submitted by the contracting officer to the Office of 
Property Management, Personal Property Policy Division, within the 
Headquarters procurement organization.
    (b) Special screening requirements. (2) Special test equipment with 
commercial components.--Prior to reporting the property to GSA in 
accordance with 48 CFR 45.604-1 (a), (b) and (c), the property shall be 
reported and screened within DOE in accordance with 945.602-3(a) and 
945.602-70.
    (3) Printing equipment. All printing equipment excess to 
requirements shall be reported to the Office of Administration at 
Headquarters.



Sec. 945.602-70  Local screening.

    Local screening shall be done using EADS.



Sec. 945.603  Abandonment, destruction or donation of excess personal 
          property.

    See 945.670 for DOE disposal methods.



Sec. 945.604  Disposal of surplus property.



Sec. 945.604-1  Disposal methods.

    (b)(3) Recovering precious metals. Contractors generating contractor 
inventory containing precious metals or possessing precious metals 
excess to their programmatic requirements, shall identify and promptly 
report such items to the contracting officer for review, approval and 
reporting to the DOE Business Center for Precious Metals Sales & 
Recovery (Business Center). This includes Gold, Silver, Platinum, 
Rhodium, Palladium, Iridium, Osmium, and Ruthenium in any form, shape, 
concentration, or purity. Report all RCRA contaminated precious metals, 
but not radiological contaminated. The Y-12 NNSA Site Office is 
responsible for maintaining the DOE Business Center. Precious metals 
scrap will be reported to the DOE Business Center.
    (d) See 945.670 for DOE disposal methods.



Sec. 945.670  DOE disposal methods.



Sec. 945.670-1  Plant clearance function.

    If the plant clearance function has not been formally delegated to 
another Federal agency, the contracting officer shall assume all 
responsibilities of the plant clearance officer identified in 48 CFR 
45.606-3.



Sec. 945.670-2  Disposal of radioactively contaminated personal 
          property.

    Special procedures regarding the disposal of radioactively 
contaminated property may be found at 41 CFR 109-45.50 and 45.51, or its 
successor.



Sec. 945.670-3  Waiver of screening requirements.

    (a) The Director of the Personal Property Policy Division, within 
the Headquarters procurement organization may authorize exceptions from 
screening requirements.

[[Page 400]]

    (b) A request to the Director of the Personal Property Policy 
Division, within the Headquarters procurement organization for the 
waiver of screening requirements must be submitted by the Procurement 
Directors with a justification setting forth the compelling 
circumstances warranting the exception.



Sec. 945.671  Contractor inventory in foreign countries.

    Contractor inventory located in foreign countries will be utilized 
and disposed of in accordance with 41 CFR 109-43.5 and 45.41, or its 
successor and 48 CFR 45.302.

                         PART 947_TRANSPORTATION

                      Subpart 947.70_Foreign Travel

Sec.

Sec. 947.7000 [Reserved]

Sec. 947.7001 Policy.

Sec. 947.7002 Contract clause.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 12038, Mar. 28, 1984, unless otherwise noted.

                      Subpart 947.70_Foreign Travel

    Source: 65 FR 81007, Dec. 22, 2000, unless otherwise noted.



Sec. 947.7000  [Reserved]



Sec. 947.7001  Policy.

    Contractor foreign travel shall be conducted pursuant to the 
requirements contained in DOE Order 551.1C, or its successor, Official 
Foreign Travel, or any subsequent version of the order in effect at the 
time of award.

[65 FR 81007, Dec. 22, 2000, as amended at 74 FR 36368, July 22, 2009]



Sec. 947.7002  Contract clause.

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

[65 FR 81007, Dec. 22, 2000, as amended at 74 FR 36368, July 22, 2009]

                    PART 949_TERMINATION OF CONTRACTS

                    Subpart 949.1_General Principles

Sec.

Sec. 949.101 Authorities and responsibilities.

Sec. 949.106 Fraud or other criminal conduct.

Sec. 949.111 Review of proposed settlements.

Subpart 949.5 [Reserved]

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 12038, Mar. 28, 1984, unless otherwise noted.

                    Subpart 949.1_General Principles



Sec. 949.101  Authorities and responsibilities.

    The Senior Procurement Executive shall be notified prior to taking 
any action to terminate (a) contracts for the operation of Government-
owned facilities, (b) any prime contract or subcontract in excess of $10 
million, and (c) any contract the termination of which is likely to 
provoke unusual interest.

[49 FR 12038, Mar. 28, 1984, as amended at 75 FR 29458, May 26, 2010]



Sec. 949.106  Fraud or other criminal conduct.

    Any evidence of fraud or other criminal conduct in connection with 
the settlement of a contract termination shall be reported in accordance 
with 909.406.



Sec. 949.111  Review of proposed settlements.

    (a) The Heads of Contracting Activities shall establish settlement 
review boards for the review of each termination settlement or 
determination of amount due under the termination clause of a contract 
or approval or ratification of a subcontract settlement when the action 
involves $50,000 or more.
    (b) Settlement review boards may be established for actions below 
$50,000 when considered desirable by the Head of the Contracting 
Activity or when specifically requested by the contracting officer.

[[Page 401]]

    (c) Proposed settlement agreements or determinations in excess of 
contractual authority of the Heads of Contracting Activities will be 
transmitted to the Senior Procurement Executive for review and approval.
    (d) Contracting officers shall not conclude proposed settlement or 
determinations until the approvals required by this subsection have been 
obtained.

[49 FR 12038, Mar. 28, 1984, as amended at 59 FR 9108, Feb. 25, 1994; 74 
FR 36378, July 22, 2009]

Subpart 949.5 [Reserved]

      PART 950_EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

        Subpart 950.70_Nuclear Indemnification of DOE Contractors

Sec.

Sec. 950.7000 Scope of subpart.

Sec. 950.7001 General policy.

Sec. 950.7002 Definitions.

Sec. 950.7003 Nuclear hazards indemnity.

Sec. 950.7004-950.7005 [Reserved]

Sec. 950.7006 Statutory nuclear hazards indemnity agreement.

Sec. 950.7007-950.7008 [Reserved]

Sec. 950.7009 Fees.

Sec. 950.7010 Financial protection requirements.

           Subpart 950.71_General Contract Authority Indemnity


Sec. 950.7101 Applicability.

    Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 et 
seq.; 50 U.S.C. 2401 et seq.

    Source: 49 FR 12039, Mar. 28, 1984, unless otherwise noted.

        Subpart 950.70_Nuclear Indemnification of DOE Contractors



Sec.Sec. 950.7000  Scope of subpart.

    This subpart describes the established policies concerning 
indemnification of Department of Energy (DOE) contractors against public 
liability for a nuclear incident arising out of or in connection with 
the contract activity.

[49 FR 12039, Mar. 28, 1984, as amended at 56 FR 57827, Nov. 14, 1991; 
74 FR 36368, July 22, 2009]



Sec.Sec. 950.7001  Applicability

    The policies and procedures of this subpart shall govern DOE's 
entering into agreements of indemnification with recipients of a 
contract whose work under the contract involves the risk of public 
liability for a nuclear incident or precautionary evacuation.

[49 FR 12039, Mar. 28, 1984, as amended at 56 FR 57827, Nov. 14, 1991]



Sec. 950.7002  Definitions.

    DOE contractor means any DOE prime contractor, including any agency 
of the Federal Government with which DOE has entered into an interagency 
agreement.
    Nuclear incident means any occurrence, including an extraordinary 
nuclear occurrence, within the United States causing, within or outside 
the United States, bodily injury, sickness, disease, or death, or loss 
of or damage to property, or loss of use of property, arising out of or 
resulting from the radioactive, toxic, explosive, or other hazardous 
properties of source, special nuclear, or byproduct material. The term 
includes any such occurrence outside the United States if such 
occurrence involves source, special nuclear, or byproduct material owned 
by, and used by or under contract with, the United States.
    Person indemnified means--
    (1) With respect to a nuclear incident occurring within the United 
States or outside the United States as the term is defined above and 
with respect to any nuclear incident in connection with the design, 
development, construction, operation, repair, maintenance, or use of the 
nuclear ship Savannah, the person with whom an indemnity agreement is 
executed or who is required to maintain financial protection, and any 
other person who may be liable for public liability; or
    (2) With respect to any other nuclear incident occurring outside the 
United States, the person with whom an indemnity agreement is executed 
and any other person who may be liable for public liability by reason of 
his activities under any contract with the Secretary of Energy or any 
project to

[[Page 402]]

which indemnification under the provisions of section 170d. of the 
Atomic Energy Act of 1954, as amended, has been extended or under any 
subcontract, purchase order, or other agreement, or any tier under any 
such contract or project.
    Public liability means any legal liability arising out of or 
resulting from a nuclear incident or precautionary evacuation (including 
all reasonable additional costs incurred by a State, or a political 
subdivision of a State, in the course of responding to a nuclear 
incident or precautionary evacuation), except: (1) Claims under State or 
Federal workmen's compensation acts of employees of persons indemnified 
who are employed at the site of and in connection with the activity 
where the nuclear incident occurs; (2) claims arising out of an act of 
war; and (3) whenever used in subsections a., c., and k. of section 170 
of the Atomic Energy Act of 1954, as amended, claims for loss of, or 
damage to, or loss of use of property which is located at the site of 
and used in connection with the licensed activity where the nuclear 
incident occurs. Public liability also includes damage to property of 
persons indemnified: Provided, that such property is covered under the 
terms of the financial protection required, except property which is 
located at the site of and used in connection with the activity where 
the nuclear incident occurs.

[49 FR 12039, Mar. 28, 1984, as amended at 50 FR 12185, Mar. 27, 1985; 
56 FR 57827, Nov. 14, 1991; 74 FR 36368, July 22, 2009]



Sec. 950.7003  Nuclear hazards indemnity.

    (a) Section 170d. of the Atomic Energy Act, as amended, requires DOE 
``to enter into agreements of indemnification with any person who may 
conduct activities under a contract with DOE that involve the risk of 
public liability * * *.'' However, DOE contractors whose activities are 
already subject to indemnification by the Nuclear Regulatory Commission 
are not eligible for such statutory indemnity. See 950.7006 below.
    (b) The Heads of Contracting Activities shall assure that contracts 
subject to this requirement contain the appropriate nuclear hazards 
indemnity provisions.

[56 FR 57828, Nov. 14, 1991, as amended at 59 FR 9108, Feb. 25, 1994; 75 
FR 29459, May 26, 2010]



Sec. 950.7004-950.7005  [Reserved]



Sec. 950.7006  Statutory nuclear hazards indemnity agreement.

    (a) The contract clause contained in 952.250-70 shall be 
incorporated in all contracts in which the contractor is under risk of 
public liability for a nuclear incident or precautionary evacuation 
arising out of or in connection with the contract work, including such 
events caused by a product delivered to a DOE-owned facility for use by 
DOE or its contractors. The clause at 952.250-70 shall be included in 
contracts with architect-engineer contractors for the design of a DOE 
facility, the construction or operation of which may involve the risk of 
public liability for a nuclear incident or a precautionary evacuation.
    (b) However, this clause shall not be included in contracts in which 
the contractor is subject to Nuclear Regulatory Commission (NRC) 
financial protection requirements under section 170b. of the Act or NRC 
agreements of indemnification under section 170c. or k. of the Act for 
activities to be performed under the contract.

[56 FR 57828, Nov. 14, 1991, as amended at 59 FR 9108, Feb. 25, 1994]



Sec. 950.7007-950.7008  [Reserved]



Sec. 950.7009  Fees.

    No fee will be charged a DOE contractor for a statutory nuclear 
hazards indemnity agreement.

[49 FR 12039, Mar. 28, 1984, as amended at 56 FR 57828, Nov. 14, 1991]



Sec. 950.7010  Financial protection requirements.

    DOE contractors with whom statutory nuclear hazards indemnity 
agreements under the authority of section 170d. of the Atomic Energy Act 
of 1954, as amended, are executed will not normally be required or 
permitted to furnish financial protection by purchase of insurance to 
cover public liability

[[Page 403]]

for nuclear incidents. However, if authorized by the DOE Headquarters 
office having responsibility for contractor casualty insurance programs, 
DOE contractors may be (a) permitted to furnish financial protection to 
themselves or (b) permitted to continue to carry such insurance at cost 
to the Government if they currently maintain insurance for such 
liability.

[56 FR 57828, Nov. 14, 1991]

           Subpart 950.71_General Contract Authority Indemnity



Sec. 950.7101  Applicability.

    (a) The DOE also has general contract authority to enter into 
indemnity agreements with its contractors. Under such authority a 
certain measure of protection is extended to the DOE contractor against 
risk of liability, but the assumption of liability by DOE will be 
expressly subject to the availability of appropriated funds. Prior to 
enactment of section 170 of the Atomic Energy Act 1954, as amended, this 
authority was exercised in a number of Atomic Energy Commission 
contracts and this type of indemnification remains in some DOE 
contracts.
    (b) It is the policy of the DOE, subsequent to the enactment of 
section 170, to restrict indemnity agreements with DOE contractors, with 
respect to protection against public liability for a nuclear incident, 
to the statutory indemnity provided under section 170. However, it is 
recognized that circumstances may exist under which a DOE contractor may 
be exposed to a risk of public liability for a nuclear occurrence which 
would not be covered by the statutory indemnity.
    (c) While it is normally DOE policy to require its non-management 
and operating contractors to obtain insurance coverage against public 
liability for nonnuclear risks, there may be circumstances in which a 
contractual indemnity may be warranted to protect a DOE non-management 
and operating contractor against liability for uninsured nonnuclear 
risks.
    (d) If circumstances as mentioned in paragraph (b) or (c) of this 
section do arise, it shall be the responsibility of the Heads of 
Contracting Activities to submit to the Head of the Agency or designee 
for review and decision, all pertinent information concerning the need 
for, or desirability of, providing a general authority indemnity to a 
DOE contractor.
    (e) Where the indemnified risk is nonnuclear, the amount of general 
authority indemnity extended to a fixed-price contractor should normally 
have a maximum obligation equivalent to the amount of insurance that the 
contractor usually carries to cover such risks in its other commercial 
operations or, if the risk involved is dissimilar to those normally 
encountered by the contractor, the amount that it otherwise would have 
reasonably procured to insure this contract risk.
    (f) In the event that a DOE contractor has been extended both a 
statutory indemnity and a general authority indemnity, the general 
authority indemnity will not apply to the extent that the statutory 
indemnity applies.
    (g) The provisions of this subsection do not restrict or affect the 
policy of DOE to pay its cost-reimbursement type contractors for the 
allowable cost of losses and expenses incurred in the performance of the 
contact work, within the maximum amount of the contract obligation.

[49 FR 12039, Mar. 28, 1984, as amended at 56 FR 28102, June 19, 1991. 
Redesignated and amended at 56 FR 57828, Nov. 14, 1991; 59 FR 9108, Feb. 
25, 1994; 61 FR 21977, May 13, 1996; 62 FR 34861, June 27, 1997]

            PART 951_USE OF GOVERNMENT SOURCES BY CONTRACTORS

        Subpart 951.1_Contractor Use of Government Supply Sources

Sec.

Sec. 951.101 Policy.

Sec. 951.102 Authorization to use Government supply sources.

Sec. 951.103 Ordering from Government supply sources.

           Subpart 951.70_Contractor Employee Travel Discounts


Sec. 951.7002 Responsibilities.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

    Source: 49 FR 12042, Mar. 28, 1984, unless otherwise noted.

[[Page 404]]

        Subpart 951.1_Contractor Use of Government Supply Sources



Sec. 951.101  Policy.

    (a) It is Department of Energy (DOE) policy that contractors 
performing under cost-reimbursement contracts should meet their 
requirements from Government sources of supply when these sources are 
available to them, and if it is economically advantageous or otherwise 
in the best interest of the Government.

[49 FR 12042, Mar. 28, 1984, as amended at 74 FR 36368, July 22, 2009]



Sec. 951.102  Authorization to use Government supply sources.

    (a) The Head of the Contracting Activity may authorize contractors 
performing under cost-reimbursement contracts and subcontractors 
performing under cost-reimbursement subcontracts, where all higher tier 
contracts and subcontracts are cost-type, to use Government supply 
sources in accordance with the requirements and procedures in 48 CFR 
part 51, DOE PMR 41 CFR 109, and any necessary approval from the agency 
involved. This authority may be redelegated to the level of contracting 
officer. Direct acquisition by the DOE, rather than by a contractor 
under cost-reimbursement contracts, shall be required where deemed 
necessary by the Head of the Contracting Activity in order to carry out 
special requirements of appropriation acts or other applicable laws 
relating to particular items.
    (c)(1) The DOE central point of contact for the assignment, 
correction, or deletion of FEDSTRIP activity address codes is the Office 
of Resource Management, within the Headquarters procurement 
organization.
    (e)(4) Materials, supplies, and equipment acquired from Government 
sources of supply under the procedures described herein must be used 
exclusively in connection with Government work, except as otherwise 
authorized by the Head of the Contracting Activity.

[49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984, as amended at 59 
FR 9108, Feb. 25, 1994; 74 FR 36368, July 22, 2009; 75 FR 29458, 29459, 
May 26, 2010]



Sec. 951.103  Ordering from Government supply sources.

    (b) The Senior Procurement Executive shall be informed of instances 
in which GSA sources of supply are not used because of the quality of 
the items available from GSA or when a Federal Supply Schedule 
contractor refuses to honor an order.

[49 FR 12042, Mar. 28, 1984, as amended at 74 FR 36378, July 22, 2009]

           Subpart 951.70_Contractor Employee Travel Discounts



Sec. 951.7002  Responsibilities.

    The contracting officer shall insert the clause at 952.251-70, 
Contractor employee travel discounts, in all cost-reimbursable 
solicitations and contracts when significant costs for rail travel, car 
rental, or lodging will be required to perform the contract. The 
contracting officer may furnish the contractor with appropriate 
identification letters.

[65 FR 81007, Dec. 22, 2000]

[[Page 405]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 952_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

                          Subpart 952.0_General

Sec.

Sec. 952.000 Scope of part.

Sec. 952.001 General policy.

              Subpart 952.2_Text of Provisions and Clauses


Sec. 952.202 Clauses related to definitions.

Sec. 952.202-1 Definitions.

Sec. 952.203-1 Whistleblower protection for contractor employees.

Sec. 952.204 Clauses related to administrative matters.

Sec. 952.204-2 Security requirements.

Sec. 952.204-70 Classification/Declassification.

Sec. 952.204-71 Sensitive foreign nations controls.

Sec. 952.204-72 Disclosure of information.

Sec. 952.204-73 Facility clearance.

Sec. 952.204-75 Public Affairs.

Sec. 952.204-76 Conditional payment of fee or profit--safeguarding 
          restricted data and other classified information.

Sec. 952.204-77 Computer security.

Sec. 952.208 Clauses related to required sources of supply.

Sec. 952.208-7 Tagging of leased vehicles.

Sec. 952.208-70 Printing.

Sec. 952.209 Clauses related to contractor's qualifications.

Sec. 952.209-8 Organizational Conflicts of Interest-Disclosure.

Sec. 952.209-71 [Reserved]

Sec. 952.209-72 Organizational conflicts of interest.

Sec. 952.211 Clauses related to contract delivery or performance.

Sec. 952.211-70 Priorities and allocations for energy programs 
          (solicitations).

Sec. 952.211-71 Priorities and allocations for energy programs 
          (contracts).

Sec. 952.211-72--952.211-73 [Reserved]

Sec. 952.215-70 Key personnel.

Sec. 952.216 Clauses related to types of contracts.

Sec. 952.216-7 Allowable cost and payment.

Sec. 952.216-15 Predetermined indirect cost rates.

Sec. 952.217-70 Acquisition of real property.

Sec. 952.219-70 DOE Mentor-Protege program.

Sec. 952.223 Clauses related to environment, energy and water 
          efficiency, renewable energy technologies, occupational 
          safety, and drug-free workplace.

Sec. 952.223-71 Integration of environment, safety, and health into work 
          planning and execution.

Sec. 952.223-72 Radiation protection and nuclear criticality.

Sec. 952.223-73--952.223-74 [Reserved]

Sec. 952.223-75 Preservation of individual occupational radiation 
          exposure records.

Sec. 952.223-76 Conditional payment of fee or profit--safeguarding 
          restricted data and other classified information and 
          protection of worker safety and health.

Sec. 952.223-77 Conditional payment of fee or profit--protection of 
          worker safety and health.

Sec. 952.223-78 Sustainable acquisition program.

Sec. 952.225-70 Subcontracting for nuclear hot cell services.

Sec. 952.226-70 Subcontracting goals under section 3021(a) of the Energy 
          Policy Act of 1992.

Sec. 952.226-71 Utilization of Energy Policy Act target entities.

Sec. 952.226-72 Energy Policy Act subcontracting goals and reporting 
          requirements.

Sec. 952.226-73 Energy Policy Act target group certification.

Sec. 952.226-74 Displaced employee hiring preference.

Sec. 952.227 Provisions and clauses related to patents, technical data 
          and copyrights.

Sec. 952.227-9 Refund of royalties.

Sec. 952.227-11 Patent rights--retention by the contractor (short form).

Sec. 952.227-13 Patent rights--acquisition by the Government.

Sec. 952.227-14 Rights in data-general.

Sec. 952.227-70--952.227-74 [Reserved]

Sec. 952.227-82 Rights to proposal data.

Sec. 952.227-84 Notice of right to request patent waiver.

Sec. 952.231-70 Date of incurrence of cost.

Sec. 952.231-71 Insurance-litigation and claims.

Sec. 952.233-2 Service of protest.

Sec. 952.233-4 Notice of protest file availability.

Sec. 952.233-5 Agency protest review.

Sec. 952.235-71 Research misconduct.

Sec. 952.236 Construction and architect-engineer contracts.

Sec. 952.236-71 Inspection in architect-engineer contracts.

Sec. 952.236-72 Nonrefundable fee for plans and specifications.

Sec. 952.237-70 Collective bargaining agreements--protective services.

Sec. 952.242-70 Technical direction.

Sec. 952.245 Clauses related to Government property.

Sec. 952.245-2 Government property (fixed-price contracts).

Sec. 952.245-5 Government property (cost-reimbursement, time-and-
          materials, or labor-hour contracts).

Sec. 952.247-70 Foreign travel.

Sec. 952.249 Clauses related to termination.

[[Page 406]]


Sec. 952.250 Clauses related to indemnification of contractors.

Sec. 952.250-70 Nuclear hazards indemnity agreement.

Sec. 952.250-71--952.250-72 [Reserved]

Sec. 952.251-70 Contractor employee travel discounts.

    Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 et 
seq.; 50 U.S.C. 2401 et seq.

    Source: 49 FR 12042, Mar. 28, 1984, unless otherwise noted.

                          Subpart 952.0_General



Sec. 952.000  Scope of part.

    This part implements FAR part 52 which sets forth contract clauses 
for use in connection with the acquisition of personal property and 
nonpersonal services (including construction), and supplements, as well 
as modifies, FAR part 52 by prescribing certain modifications to be made 
to FAR clauses when used in Department of Energy (DOE) contracts and 
specifying certain Department of Energy Acquisition Regulation clauses 
to be used in addition to or in place of such FAR clauses.

[49 FR 12042, Mar. 28, 1984, as amended at 74 FR 36368, July 22, 2009]



Sec. 952.001  General policy.

    It is DOE policy to use the prescribed FAR and DOE contract clauses 
wherever practicable. Uniformity in the use of contract clauses helps to 
ensure impartial treatment of all contractors, expedites negotiation and 
contract review, and facilitates contract administration.

              Subpart 952.2_Text of Provisions and Clauses



Sec. 952.202  Clauses related to definitions.



Sec. 952.202-1  Definitions.

    As prescribed in 902.201, insert the clause at 48 CFR 52.202-1, 
Definitions, in all contracts. The following shall be added to the 
clause as paragraph (c):
    (c) When a solicitation provision or contract clause uses a word or 
term that is defined in the Department of Energy Acquisition Regulation 
(DEAR) (48 CFR chapter 9), the word or term has the same meaning as the 
definition in 48 CFR 902.101 or the definition in the part, subpart, or 
section of 48 CFR chapter 9 where the provision or clause is prescribed 
in effect at the time the solicitation was issued, unless an exception 
in (a) applies.

[76 FR 7693, Feb. 11, 2011]



Sec. 952.203-70  Whistleblower protection for contractor employees.

    As prescribed in 903.971, insert the following clause:

      Whistleblower Protection for Contractor Employees (DEC 2000)

    (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)

[65 FR 81008, Dec. 22, 2000, as amended at 74 FR 36368, 36378, July 22, 
2009]



Sec. 952.204  Clauses related to administrative matters.



Sec. 952.204-2  Security.

    As prescribed in 904.404(d)(1), the following clause shall be 
included in contracts entered into under section 31 (research 
assistance, 42 U.S.C. 2051), or section 41 (ownership and operation of 
production facilities, 42 U.S.C. 2061) of the Atomic Energy Act of 1954, 
and in other contracts and subcontracts which involve or are likely to 
involve classified information or special nuclear material:

                           Security (MAR 2011)

    (a) Responsibility. It is the Contractor's duty to protect all 
classified information, special nuclear material, and other DOE 
property. The Contractor shall, in accordance with DOE security 
regulations and requirements, be responsible for protecting all 
classified information and all classified matter (including documents, 
material and special nuclear material) which are in the Contractor's 
possession in connection with the performance of work under this 
contract against sabotage, espionage, loss or theft. Except as otherwise 
expressly provided in

[[Page 407]]

this contract, the Contractor shall, upon completion or termination of 
this contract, transmit to DOE any classified matter or special nuclear 
material in the possession of the Contractor or any person under the 
Contractor's control in connection with performance of this contract. If 
retention by the Contractor of any classified matter is required after 
the completion or termination of the contract, the Contractor shall 
identify the items and classification levels and categories of matter 
proposed for retention, the reasons for the retention, and the proposed 
period of retention. If the retention is approved by the Contracting 
Officer, the security provisions of the contract shall continue to be 
applicable to the classified matter retained. Special nuclear material 
shall not be retained after the completion or termination of the 
contract.
    (b) Regulations. The Contractor agrees to comply with all security 
regulations and contract requirements of DOE as incorporated into the 
contract.
    (c) Definition of classified information. The term Classified 
Information means information that is classified as Restricted Data or 
Formerly Restricted Data under the Atomic Energy Act of 1954, or 
information determined to require protection against unauthorized 
disclosure under Executive Order 12958, Classified National Security 
Information, as amended, or prior executive orders, which is identified 
as National Security Information.
    (d) Definition of restricted data. The term Restricted Data means 
all data concerning design, manufacture, or utilization of atomic 
weapons; production of special nuclear material; or use of special 
nuclear material in the production of energy, but excluding data 
declassified or removed from the Restricted Data category pursuant to 42 
U.S.C. 2162 [Section 142, as amended, of the Atomic Energy Act of 1954].
    (e) Definition of formerly restricted data. The term ''Formerly 
Restricted Data'' means information removed from the Restricted Data 
category based on a joint determination by DOE or its predecessor 
agencies and the Department of Defense that the information--(1) Relates 
primarily to the military utilization of atomic weapons; and (2) can be 
adequately protected as National Security Information. However, such 
information is subject to the same restrictions on transmission to other 
countries or regional defense organizations that apply to Restricted 
Data.
    (f) Definition of national security information. The term ``National 
Security Information'' means information that has been determined, 
pursuant to Executive Order 12958, Classified National Security 
Information, as amended, or any predecessor order, to require protection 
against unauthorized disclosure, and that is marked to indicate its 
classified status when in documentary form.
    (g) Definition of special nuclear material. The term ``special 
nuclear material'' means--(1) Plutonium, uranium enriched in the isotope 
233 or in the isotope 235, and any other material which, pursuant to 42 
U.S.C. 2071 [section 51 as amended, of the Atomic Energy Act of 1954] 
has been determined to be special nuclear material, but does not include 
source material; or (2) any material artificially enriched by any of the 
foregoing, but does not include source material.
    (h) Access authorizations of personnel. (1) The Contractor shall not 
permit any individual to have access to any classified information or 
special nuclear material, except in accordance with the Atomic Energy 
Act of 1954, and the DOE's regulations and contract requirements 
applicable to the particular level and category of classified 
information or particular category of special nuclear material to which 
access is required.
    (2) The Contractor must conduct a thorough review, as defined at 48 
CFR 904.401, of an uncleared applicant or uncleared employee, and must 
test the individual for illegal drugs, prior to selecting the individual 
for a position requiring a DOE access authorization.
    (i) A review must--Verify an uncleared applicant's or uncleared 
employee's educational background, including any high school diploma 
obtained within the past five years, and degrees or diplomas granted by 
an institution of higher learning; contact listed employers for the last 
three years and listed personal references; conduct local law 
enforcement checks when such checks are not prohibited by state or local 
law or regulation and when the uncleared applicant or uncleared employee 
resides in the jurisdiction where the Contractor is located; and conduct 
a credit check and other checks as appropriate.
    (ii) Contractor reviews are not required for an applicant for DOE 
access authorization who possesses a current access authorization from 
DOE or another Federal agency, or whose access authorization may be 
reapproved without a federal background investigation pursuant to 
Executive Order 12968, Access to Classified Information (August 4, 
1995), Sections 3.3(c) and (d).
    (iii) In collecting and using this information to make a 
determination as to whether it is appropriate to select an uncleared 
applicant or uncleared employee to a position requiring an access 
authorization, the Contractor must comply with all applicable laws, 
regulations, and Executive Orders, including those--(A) Governing the 
processing and privacy of an individual's information, such as the Fair 
Credit Reporting Act, Americans with Disabilities Act (ADA), and Health 
Insurance Portability and Accountability Act; and (B) prohibiting 
discrimination in employment, such as under the ADA,

[[Page 408]]

Title VII and the Age Discrimination in Employment Act, including with 
respect to pre- and post-offer of employment disability related 
questioning.
    (iv) In addition to a review, each candidate for a DOE access 
authorization must be tested to demonstrate the absence of any illegal 
drug, as defined in 10 CFR 707.4. All positions requiring access 
authorizations are deemed testing designated positions in accordance 
with 10 CFR part 707. All employees possessing access authorizations are 
subject to applicant, random or for cause testing for use of illegal 
drugs. DOE will not process candidates for a DOE access authorization 
unless their tests confirm the absence from their system of any illegal 
drug.
    (v) When an uncleared applicant or uncleared employee receives an 
offer of employment for a position that requires a DOE access 
authorization, the Contractor shall not place that individual in such a 
position prior to the individual's receipt of a DOE access 
authorization, unless an approval has been obtained from the head of the 
cognizant local security office. If the individual is hired and placed 
in the position prior to receiving an access authorization, the 
uncleared employee may not be afforded access to classified information 
or matter or special nuclear material (in categories requiring access 
authorization) until an access authorization has been granted.
    (vi) The Contractor must furnish to the head of the cognizant local 
DOE Security Office, in writing, the following information concerning 
each uncleared applicant or uncleared employee who is selected for a 
position requiring an access authorization--
    (A) The date(s) each Review was conducted;
    (B) Each entity that provided information concerning the individual;
    (C) A certification that the review was conducted in accordance with 
all applicable laws, regulations, and Executive Orders, including those 
governing the processing and privacy of an individual's information 
collected during the review;
    (D) A certification that all information collected during the review 
was reviewed and evaluated in accordance with the Contractor's personnel 
policies; and
    (E) The results of the test for illegal drugs.
    (i) Criminal liability. It is understood that disclosure of any 
classified information relating to the work or services ordered 
hereunder to any person not entitled to receive it, or failure to 
protect any classified information, special nuclear material, or other 
Government property that may come to the Contractor or any person under 
the Contractor's control in connection with work under this contract, 
may subject the Contractor, its agents, employees, or Subcontractors to 
criminal liability under the laws of the United States (see the Atomic 
Energy Act of 1954, 42 U.S.C. 2011 et seq.; 18 U.S.C. 793 and 794).
    (j) Foreign ownership, control, or influence. (1) The Contractor 
shall immediately provide the cognizant security office written notice 
of any change in the extent and nature of foreign ownership, control or 
influence over the Contractor which would affect any answer to the 
questions presented in the Standard Form (SF) 328, Certificate 
Pertaining to Foreign Interests , executed prior to award of this 
contract. Contractors are encouraged to submit this information through 
the use of the online tool at https://foci.td.anl.gov. When completed 
the Contractor must print and sign one copy of the SF 328 and submit it 
to the Contracting Officer. In addition, any notice of changes in 
ownership or control which are required to be reported to the Securities 
and Exchange Commission, the Federal Trade Commission, or the Department 
of Justice, shall also be furnished concurrently to the Contracting 
Officer.
    (2) If a Contractor has changes involving foreign ownership, 
control, or influence, DOE must determine whether the changes will pose 
an undue risk to the common defense and security. In making this 
determination, DOE will consider proposals made by the Contractor to 
avoid or mitigate foreign influences.
    (3) If the cognizant security office at any time determines that the 
Contractor is, or is potentially, subject to foreign ownership, control, 
or influence, the Contractor shall comply with such instructions as the 
Contracting Officer shall provide in writing to protect any classified 
information or special nuclear material.
    (4) The Contracting Officer may terminate this contract for default 
either if the Contractor fails to meet obligations imposed by this 
clause or if the Contractor creates a foreign ownership, control, or 
influence situation in order to avoid performance or a termination for 
default. The Contracting Officer may terminate this contract for 
convenience if the Contractor becomes subject to foreign ownership, 
control, or influence and for reasons other than avoidance of 
performance of the contract, cannot, or chooses not to, avoid or 
mitigate the foreign ownership, control, or influence problem.
    (k) Employment announcements. When placing announcements seeking 
applicants for positions requiring access authorizations, the Contractor 
shall include in the written vacancy announcement, a notification to 
prospective applicants that reviews, and tests for the absence of any 
illegal drug as defined in 10 CFR 707.4, will be conducted by the 
employer and a background investigation by the Federal government may be 
required to obtain an access authorization prior to employment, and that 
subsequent reinvestigations may be required. If the position is covered 
by the Counterintelligence

[[Page 409]]

Evaluation Program regulations at 10 CFR part 709, the announcement 
should also alert applicants that successful completion of a 
counterintelligence evaluation may include a counterintelligence-scope 
polygraph examination.
    (l) Flow down to subcontracts. The Contractor agrees to insert terms 
that conform substantially to the language of this clause, including 
this paragraph, in all subcontracts under its contract that will require 
subcontractor employees to possess access authorizations. Additionally, 
the Contractor must require such subcontractors to have an existing DOD 
or DOE facility clearance or submit a completed SF 328, Certificate 
Pertaining to Foreign Interests, as required in 48 CFR 952.204-73, 
Facility Clearance, and obtain a foreign ownership, control and 
influence determination and facility clearance prior to award of a 
subcontract. Information to be provided by a subcontractor pursuant to 
this clause may be submitted directly to the Contracting Officer. For 
purposes of this clause, subcontractor means any subcontractor at any 
tier and the term ``Contracting Officer'' means the DOE Contracting 
Officer. When this clause is included in a subcontract, the term 
``Contractor'' shall mean subcontractor and the term ``contract'' shall 
mean subcontract.

                             (End of clause)

[74 FR 23124, May 18, 2009, as amended at 74 FR 36368, 36370, July 22, 
2009; 76 FR 7694, Feb. 11, 2011]



Sec. 952.204-70  Classification/Declassification.

    As prescribed in 904.404(d)(2), the following clause shall be 
included in all contracts which involve classified information:

               Classification/Declassification (SEP 1997)

    In the performance of work under this contract, the Contractor or 
subcontractor shall comply with all provisions of the Department of 
Energy's regulations and mandatory DOE directives which apply to work 
involving the classification and declassification of information, 
documents, or material. In this section, ``information'' means facts, 
data, or knowledge itself; ``document'' means the physical medium on or 
in which information is recorded; and ``material'' means a product or 
substance which contains or reveals information, regardless of its 
physical form or characteristics. Classified information is ``Restricted 
Data'' and ``Formerly Restricted Data'' (classified under the Atomic 
Energy Act of 1954, as amended) and ``National Security Information'' 
(classified under Executive Order 12958 or prior Executive Orders).
    The original decision to classify or declassify information is 
considered an inherently Governmental function. For this reason, only 
Government personnel may serve as original classifiers, i.e., Federal 
Government Original Classifiers. Other personnel (Government or 
Contractor) may serve as derivative classifiers which involves making 
classification decisions based upon classification guidance which 
reflect decisions made by Federal Government Original Classifiers.
    The Contractor or subcontractor shall ensure that any document or 
material that may contain classified information is reviewed by either a 
Federal Government or a Contractor Derivative Classifier in accordance 
with classification regulations including mandatory DOE directives and 
classification/declassification guidance furnished to the Contractor by 
the Department of Energy to determine whether it contains classified 
information prior to dissemination. For information which is not 
addressed in classification/declassification guidance, but whose 
sensitivity appears to warrant classification, the Contractor or 
subcontractor shall ensure that such information is reviewed by a 
Federal Government Original Classifier.
    In addition, the Contractor or subcontractor shall ensure that 
existing classified documents (containing either Restricted Data or 
Formerly Restricted Data or National Security Information) which are in 
its possession or under its control are periodically reviewed by a 
Federal Government or Contractor Derivative Declassifier in accordance 
with classification regulations, mandatory DOE directives and 
classification/declassification guidance furnished to the Contractor by 
the Department of Energy to determine if the documents are no longer 
appropriately classified. Priorities for declassification review of 
classified documents shall be based on the degree of public and 
researcher interest and the likelihood of declassification upon review. 
Documents which no longer contain classified information are to be 
declassified. Declassified documents then shall be reviewed to determine 
if they are publicly releasable. Documents which are declassified and 
determined to be publicly releasable are to be made available to the 
public in order to maximize the public's access to as much Government 
information as possible while minimizing security costs.
    The Contractor or subcontractor shall insert this clause in any 
subcontract which involves or may involve access to classified 
information.

                             (End of clause)

[49 FR 12042, Mar. 28, 1984, as amended at 59 FR 9108, Feb. 25, 1994; 62 
FR 51802, Oct. 3, 1997; 74 FR 36370, 36378, July 22, 2009]

[[Page 410]]



Sec. 952.204-71  Sensitive foreign nations controls.

    In accordance with 904.404(d)(3), the contracting officer shall 
include the following clause:

              Sensitive Foreign Nations Controls (MAR 2011)

    (a) In connection with any activities in the performance of this 
contract, the Contractor agrees to comply with the ``Sensitive Foreign 
Nations Controls'' requirements attached to this contract, relating to 
those countries, which may from time to time, be identified to the 
Contractor by written notice as sensitive foreign nations. The 
Contractor shall have the right to terminate its performance under this 
contract upon at least 60 days' prior written notice to the Contracting 
Officer if the Contractor determines that it is unable, without 
substantially interfering with its polices or without adversely 
impacting its performance to continue performance of the work under this 
contract as a result of such notification. If the Contractor elects to 
terminate performance, the provisions of this contract regarding 
termination for the convenience of the Government shall apply.
    (b) The provisions of this clause shall be included in any 
subcontracts which may involve making unclassified information about 
nuclear technology available to sensitive foreign nations.

                             (End of clause)

[49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984, as amended at 59 
FR 9108, Feb. 25, 1994; 62 FR 2312, Jan. 16, 1997; 74 FR 36370, 36378, 
36380, July 22, 2009; 76 FR 7694, Feb. 11, 2011]



Sec. 952.204-72  Disclosure of information.

    As prescribed in 904.404(d)(4) this clause may be used in place of 
the clauses entitled ``Security,'' 952.204-2, and ``Classification/
Declassification,'' 952.204-70, in contracts with educational 
institutions for research involving nuclear technology which could but 
is not expected to produce classified information or restricted data:

                  Disclosure of Information (APR 1994)

    (a) It is mutually expected that the activities under this contract 
will not involve classified information. It is understood, however, that 
if in the opinion of either party, this expectation changes prior to the 
expiration or terminating of all activities under this contract, said 
party shall notify the other party accordingly in writing without delay. 
In any event, the Contractor shall classify, safeguard, and otherwise 
act with respect to all classified information in accordance with 
applicable law and the requirements of DOE, and shall promptly inform 
DOE in writing if and when classified information becomes involved, or 
in the mutual judgment of the parties it appears likely that classified 
information or material may become involved. The Contractor shall have 
the right to terminate performance of the work under this contract and 
in such event the provisions of this contract respecting termination for 
the convenience of the Government shall apply.
    (b) The Contractor shall not permit any individual to have access to 
classified information except in accordance with the Atomic Energy Act 
1954, as amended, Executive Order 12356, and DOE's regulations or 
requirements.
    (c) The term Restricted Data as used in this article means all data 
concerning the design, manufacture, or utilization of atomic weapons, 
the production of special nuclear material or the use of special nuclear 
material in the production of energy, but shall not include data 
declassified or removed from the Restricted Data category pursuant to 
section 142 of the Atomic Energy Act of 1954, as amended.

                             (End of clause)

[49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984, as amended at 59 
FR 9108, Feb. 25, 1994; 62 FR 2312, Jan. 16, 1997; 74 FR 36368, 36370, 
36378, July 22, 2009]



Sec. 952.204-73  Facility clearance.

    As prescribed in 904.404(d)(5), insert the following provision in 
all solicitations which require the use of Standard Form 328, 
Certificate Pertaining to Foreign Interests, for contracts or 
subcontracts subject to the provisions of 904.70:

                      Facility Clearance (MAR 2011)

                                 Notices

    Section 2536 of title 10, United States Code, prohibits the award of 
a contract under a national security program to an entity controlled by 
a foreign government if it is necessary for that entity to be given 
access to information in a proscribed category of information in order 
to perform the contract unless a waiver is granted by the Secretary of 
Energy. In addition, a Facility Clearance and foreign ownership, control 
and influence (FOCI) information are required when the contract or 
subcontract to be awarded is expected to require employees to have 
access authorizations.

[[Page 411]]

    Offerors who have either a Department of Defense or a Department of 
Energy Facility Clearance generally need not resubmit the following 
foreign ownership information unless specifically requested to do so. 
Instead, provide your DOE Facility Clearance code or your DOD assigned 
commercial and government entity (CAGE) code. If uncertain, consult the 
office which issued this solicitation.
    (a) Use of Certificate Pertaining to Foreign Interests, Standard 
Form 328. (1) The contract work anticipated by this solicitation will 
require access to classified information or special nuclear material. 
Such access will require a Facility Clearance for the Contractor 
organization and access authorizations (security clearances) for 
Contractor personnel working with the classified information or special 
nuclear material. To obtain a Facility Clearance the offeror must submit 
a Certificate Pertaining to Foreign Interests, Standard Form 328, and 
all required supporting documents to form a complete Foreign Ownership, 
Control or Influence (FOCI) Package. Contractors are encouraged to 
submit this information through the use of the online tool at https://
foci.td.anl.gov. When completed the Contractor must print and sign one 
copy of the SF 328 and submit it to the Contracting Officer.
    (2) Information submitted by the offeror in response to the Standard 
Form 328 will be used solely for the purposes of evaluating foreign 
ownership, control or influence and will be treated by DOE, to the 
extent permitted by law, as business or financial information submitted 
in confidence.
    (3) Following submission of a Standard Form 328 and prior to 
contract award, the Contractor shall immediately submit to the 
Contracting Officer written notification of any changes in the extent 
and nature of FOCI which could affect the offeror's answers to the 
questions in Standard Form 328. Following award of a contract, the 
Contractor must immediately submit to the cognizant security office 
written notification of any changes in the extent and nature of FOCI 
which could affect the offeror's answers to the questions in Standard 
Form 328. Notice of changes in ownership or control which are required 
to be reported to the Securities and Exchange Commission, the Federal 
Trade Commission, or the Department of Justice must also be furnished 
concurrently to the cognizant security office.
    (b) Definitions. (1) Foreign Interest means any of the following--
    (i) A foreign government, foreign government agency, or 
representative of a foreign government;
    (ii) Any form of business enterprise or legal entity organized, 
chartered or incorporated under the laws of any country other than the 
United States or its possessions and trust territories; and
    (iii) Any person who is not a citizen or national of the United 
States.
    (2) Foreign Ownership, Control, or Influence (FOCI) means the 
situation where the degree of ownership, control, or influence over a 
Contractor by a foreign interest is such that a reasonable basis exists 
for concluding that compromise of classified information or special 
nuclear material may result.
    (c) Facility Clearance means an administrative determination that a 
facility is eligible to access, produce, use or store classified 
information, or special nuclear material. A Facility Clearance is based 
upon a determination that satisfactory safeguards and security measures 
are carried out for the activities being performed at the facility. It 
is DOE policy that all Contractors or Subcontractors requiring access 
authorizations be processed for a Facility Clearance at the level 
appropriate to the activities being performed under the contract. 
Approval for a Facility Clearance shall be based upon--
    (1) A favorable foreign ownership, control, or influence (FOCI) 
determination based upon the Contractor's response to the ten questions 
in Standard Form 328 and any required, supporting data provided by the 
Contractor;
    (2) A contract or proposed contract containing the appropriate 
security clauses;
    (3) Approved safeguards and security plans which describe protective 
measures appropriate to the activities being performed at the facility;
    (4) An established Reporting Identification Symbol code for the 
Nuclear Materials Management and Safeguards Reporting System if access 
to nuclear materials is involved;
    (5) A survey conducted no more than 6 months before the Facility 
Clearance date, with a composite facility rating of satisfactory, if the 
facility is to possess classified matter or special nuclear material at 
its location;
    (6) Appointment of a Facility Security Officer, who must possess or 
be in the process of obtaining an access authorization equivalent to the 
Facility Clearance; and, if applicable, appointment of a Materials 
Control and Accountability Representative; and
    (7) Access authorizations for key management personnel who will be 
determined on a case-by-case basis, and must possess or be in the 
process of obtaining access authorizations equivalent to the level of 
the Facility Clearance.
    (d) A Facility Clearance is required prior to the award of a 
contract requiring access to classified information and the granting of 
any access authorizations under a contract. Prior to award of a 
contract, the DOE must determine that award of the contract to the 
offeror will not pose an undue risk to the common defense and security 
as a result of its access to classified information or special nuclear 
material in the performance of the

[[Page 412]]

contract. The Contracting Officer may require the offeror to submit such 
additional information as deemed pertinent to this determination.
    (e) A Facility Clearance is required even for contracts that do not 
require the Contractor's corporate offices to receive, process, 
reproduce, store, transmit, or handle classified information or special 
nuclear material, but which require DOE access authorizations for the 
Contractor's employees to perform work at a DOE location. This type 
facility is identified as a non-possessing facility.
    (f) Except as otherwise authorized in writing by the Contracting 
Officer, the provisions of any resulting contract must require that the 
Contractor insert provisions similar to the foregoing in all 
subcontracts and purchase orders. Any Subcontractors requiring access 
authorizations for access to classified information or special nuclear 
material shall be directed to provide responses to the questions in 
Standard Form 328, Certificate Pertaining to Foreign Interests, directly 
to the prime Contractor or the Contracting Officer for the prime 
contract.

  Notice to Offerors--Contents Review (Please Review Before Submitting)

    Prior to submitting the Standard Form 328, required by paragraph 
(a)(1) of this clause, the offeror should review the FOCI submission to 
ensure that:
    (1) The Standard Form 328 has been signed and dated by an authorized 
official of the company;
    (2) If publicly owned, the Contractor's most recent annual report, 
and its most recent proxy statement for its annual meeting of 
stockholders have been attached; or, if privately owned, the audited, 
consolidated financial information for the most recently closed 
accounting year has been attached;
    (3) A copy of the company's articles of incorporation and an 
attested copy of the company's by-laws, or similar documents filed for 
the company's existence and management, and all amendments to those 
documents;
    (4) A list identifying the organization's owners, officers, 
directors, and executive personnel, including their names, social 
security numbers, citizenship, titles of all positions they hold within 
the organization, and what clearances, if any, they possess or are in 
the process of obtaining, and identification of the government 
agency(ies) that granted or will be granting those clearances; and
    (5) A summary FOCI data sheet.

    Note: A FOCI submission must be attached for each tier parent 
organization (i.e. ultimate parent and any intervening levels of 
ownership). If any of these documents are missing, award of the contract 
cannot be completed.

                           (End of provision)

[67 FR 14877, Mar. 28, 2002, as amended at 74 FR 36368, 36370, 36378, 
July 22, 2009; 76 FR 7694, Feb. 11, 2011]



Sec. 952.204-75  Public affairs.

    As prescribed in 904.7201, insert the following clause:

                        Public Affairs (DEC 2000)

    (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 to 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 in accordance with procedures defined by the 
Contracting Officer.
    (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 DOE procedures for obtaining 
advance clearances on oral, written, and audio/visual informational 
material prepared for public dissemination or use.
    (e) Unless prohibited by law, and in accordance with procedures 
defined by the Contracting Officer, the Contractor must notify the 
Contracting Officer and appropriate DOE public affairs personnel of 
communications or contacts with Members of Congress relating to the 
effort performed under the contract.
    (f) In accordance with procedures defined by the Contracting 
Officer, the Contractor must notify the Contracting Officer and 
appropriate DOE public affairs personnel of 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.

[[Page 413]]

    (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.

                             (End of clause)

[65 FR 81008, Dec. 22, 2000, as amended at 74 FR 36368, 36370, July 22, 
2009]



Sec. 952.204-76  Conditional payment of fee or profit--safeguarding 
          restricted data and other classified information.

    As prescribed at 904.404(d)(6), insert the following clause:

 Conditional Payment of Fee or Profit--Safeguarding Restricted Data and 
                 Other Classified Information (JAN 2004)

    (a) General. (1) The payment of fee or profit (i.e., award fee, 
fixed fee, and incentive fee or profit) under this contract is dependent 
upon the Contractor's compliance with the terms and conditions of this 
contract relating to the safeguarding of Restricted Data and other 
classified information (i.e., Formerly Restricted Data and National 
Security Information) including compliance with applicable law, 
regulation, and DOE directives. The term ``Contractor'' as used in this 
clause to address failure to comply shall mean ``Contractor or 
Contractor employee.''
    (2) In addition to other remedies available to the Government, if 
the Contractor fails to comply with the terms and conditions of this 
contract relating to the safeguarding of Restricted Data and other 
classified information, the Contracting Officer may unilaterally reduce 
the amount of fee or profit that is otherwise payable to the Contractor 
in accordance with the terms and conditions of this clause.
    (3) Any reduction in the amount of fee or profit earned by the 
Contractor will be determined by the severity of the Contractor's 
failure to comply with contract terms and conditions relating to the 
safeguarding of restricted data or other classified information pursuant 
to the degrees specified in paragraph (c) of this clause.
    (b) Reduction amount. (1) If in any period (see 48 CFR 952.204-76 
(b)(2)) it is found that the Contractor has failed to comply with 
contract terms and conditions relating to the safeguarding of Restricted 
Data or other classified information, the Contractor's fee or profit of 
the period may be reduced. Such reduction shall not be less than 26 
percent nor greater than 100 percent of the total fee or profit earned 
for a first degree performance failure, not less than 11 percent nor 
greater than 25 percent for a second degree performance failure, and up 
to 10 percent for a third degree performance failure. The Contracting 
Officer must consider mitigating factors that may warrant a reduction 
below the specified range (see 48 CFR 904.402(c)). The mitigating 
factors include, but are not limited to, the following:
    (i) Degree of control the Contractor had over the event or incident.
    (ii) Efforts the Contractor had made to anticipate and mitigate the 
possibility of the event in advance.
    (iii) Contractor self-identification and response to the event to 
mitigate impacts and recurrence.
    (iv) General status (trend and absolute performance) of safeguarding 
Restricted Data and other classified information and compliance in 
related security areas.
    (2)(i) Except in the case of performance-based firm-fixed-price 
contracts (see paragraph (b)(3) of this clause), the Contracting 
Officer, for purposes of this clause, will at the time of contract 
award, or as soon as practicable thereafter, allocate the total amount 
of fee or profit that is available under this contract to equal periods 
of [insert 6 or 12] months to run sequentially for the entire term of 
the contract (i.e., from the effective date of the contract to the 
expiration date of the contract, including all options). The amount of 
fee or profit to be allocated to each period shall be equal to the 
average monthly fee or profit that is available or otherwise payable 
during the entire term of the contract, multiplied by the number of 
months established above for each period.
    (ii) Under this clause, the total amount of fee or profit that is 
subject to reduction in a period in which a performance failure occurs, 
in combination with any reduction made under any other clause in the 
contract that provides for a reduction to the fee or profit, shall not 
exceed the amount of fee or profit that is earned by the Contractor in 
the period established pursuant to paragraph (b)(2)(i) of this clause.
    (3) For performance-based firm-fixed-price contracts, the 
Contracting Officer will at the time of contract award include negative 
monetary incentives in the contract for Contractor violations relating 
to the safeguarding of Restricted Data and other classified information.
    (c) Safeguarding restricted data and other classified information. 
Performance failures occur if the Contractor does not comply with the 
terms and conditions of this contract relating to the safeguarding of 
Restricted Data and other classified information. The degrees of 
performance failures relating to the Contractor's obligations under this 
contract for safeguarding of Restricted Data and other classified 
information are as follows:

[[Page 414]]

    (1) First Degree: Performance failures that have been determined, in 
accordance with applicable law, regulation, or DOE directive, to have 
resulted in, or that can reasonably be expected to result in, 
exceptionally grave damage to the national security. The following are 
examples of performance failures or performance failures of similar 
import that will be considered first degree:
    (i) Non-compliance with applicable laws, regulations, and DOE 
directives actually resulting in, or creating a risk of, loss, 
compromise, or unauthorized disclosure of Top Secret Restricted Data or 
other information classified as Top Secret, any classification level of 
information in a Special Access Program (SAP), information identified as 
sensitive compartmented information (SCI), or high risk nuclear weapons-
related data.
    (ii) Contractor actions that result in a breakdown of the safeguards 
and security management system that can reasonably be expected to result 
in the loss, compromise, or unauthorized disclosure of Top Secret 
Restricted Data, or other information classified as Top Secret, any 
classification level of information in a SAP, information identified as 
SCI, or high risk nuclear weapons-related data.
    (iii) Failure to promptly report the loss, compromise, or 
unauthorized disclosure of Top Secret Restricted Data or other 
information classified as Top Secret, any classification level of 
information in a SAP, information identified as SCI, or high risk 
nuclear weapons-related data.
    (iv) Failure to timely implement corrective actions stemming from 
the loss, compromise, or unauthorized disclosure of Top Secret 
Restricted Data or other information classified as Top Secret, any 
classification level of information in a SAP, information identified as 
SCI, or high risk nuclear weapons-related data.
    (2) Second Degree: Performance failures that have been determined, 
in accordance with applicable law, regulation, or DOE directive, to have 
actually resulted in, or that can reasonably be expected to result in, 
serious damage to the national security. The following are examples of 
performance failures or performance failures of similar import that will 
be considered second degree:
    (i) Non-compliance with applicable laws, regulations, and DOE 
directives actually resulting in, or creating risk of, loss, compromise, 
or unauthorized disclosure of Secret Restricted Data or other 
information classified as Secret.
    (ii) Contractor actions that result in a breakdown of the safeguards 
and security management system that can reasonably be expected to result 
in the loss, compromise, or unauthorized disclosure of Sceret Restricted 
Data, or other information classified as Secret.
    (iii) Failure to promptly report the loss, compromise, or 
unauthorized disclosure of Restricted Data or other information 
regardless of classification (except for information covered by 
paragraph (c)(1)(iii) of this clause).
    (iv) Failure to timely implement corrective actions stemming from 
the loss, compromise, or unauthorized disclosure of Secret Restricted 
Data or other information classified as Secret.
    (3) Third Degree: Performance failures that have been determined, in 
accordance with applicable law, regulation, or DOE directive, to have 
actually resulted in, or that can reasonably be expected to result in, 
undue risk to the common defense and security. In addition, this 
category includes performance failures that result from a lack of 
Contractor management and/or employee attention to the proper 
safeguarding of Restricted Data and other classified information. These 
performance failures may be indicators of future, more severe 
performance failures and/or conditions, and if identified and corrected 
early would prevent serious incidents. The following are examples of 
performance failures or performance failures of similar import that will 
be considered third degree:
    (i) Non-compliance with applicable laws, regulations, and DOE 
directives actually resulting in, or creating risk of, loss, compromise, 
or unauthorized disclosure of Restricted Data or other information 
classified as Confidential.
    (ii) Failure to promptly report alleged or suspected violations of 
laws, regulations, or directives pertaining to the safeguarding of 
Restricted Data or other classified information.
    (iii) Failure to identify or timely execute corrective actions to 
mitigate or eliminate identified vulnerabilities and reduce residual 
risk relating to the protection of Restricted Data or other classified 
information in accordance with the Contractor's Safeguards and Security 
Plan or other security plan, as applicable.
    (iv) Contractor actions that result in performance failures which 
unto themselves pose minor risk, but when viewed in the aggregate 
indicate degradation in the integrity of the Contractor's safeguards and 
security management system relating to the protection of Restricted Data 
and other classified information.

                             (End of clause)

[68 FR 68777, Dec. 10, 2003, as amended at 74 FR 36368, 36370, 36378, 
36380, July 22, 2009]



Sec. 952.204-77  Computer security.

    As prescribed in 904.404(d)(7), the following clause shall be 
included:

[[Page 415]]

                      Computer Security (AUG 2006)

    (a) Definitions. (1) Computer means desktop computers, portable 
computers, computer networks (including the DOE Network and local area 
networks at or controlled by DOE organizations), network devices, 
automated information systems, and or other related computer equipment 
owned by, leased, or operated on behalf of the DOE.
    (2) Individual means a DOE Contractor or subcontractor employee, or 
any other person who has been granted access to a DOE computer or to 
information on a DOE computer, and does not include a member of the 
public who sends an e-mail message to a DOE computer or who obtains 
information available to the public on DOE Web sites.
    (b) Access to DOE computers. A Contractor shall not allow an 
individual to have access to information on a DOE computer unless--
    (1) The individual has acknowledged in writing that the individual 
has no expectation of privacy in the use of a DOE computer; and
    (2) The individual has consented in writing to permit access by an 
authorized investigative agency to any DOE computer used during the 
period of that individual's access to information on a DOE computer, and 
for a period of three years thereafter.
    (c) No expectation of privacy. Notwithstanding any other provision 
of law (including any provision of law enacted by the Electronic 
Communications Privacy Act of 1986), no individual using a DOE computer 
shall have any expectation of privacy in the use of that computer.
    (d) Written records. The Contractor is responsible for maintaining 
written records for itself and subcontractors demonstrating compliance 
with the provisions of paragraph (b) of this section. The Contractor 
agrees to provide access to these records to the DOE, or its authorized 
agents, upon request.
    (e) Subcontracts. The Contractor shall insert this clause, including 
this paragraph (e), in subcontracts under this contract that may provide 
access to computers owned, leased or operated on behalf of the DOE.

                             (End of clause)

[71 FR 40885, July 19, 2006, as amended at 74 FR 36368, 36378, July 22, 
2009]



Sec. 952.208  Clauses related to required sources of supply.



Sec. 952.208-7  Tagging of leased vehicles.

    As prescribed in 908.1104, insert the following clause when leasing 
commercial vehicles for periods in excess of 60 days:

                  Tagging of Leased Vehicles (APR 1984)

    (a) DOE intends to use U.S. Government license tags.
    (b) While it is the intention that vehicles leased hereunder shall 
operate on Federal tags, the DOE reserves the right to utilize State 
tags if necessary to accomplish its mission. Should State tags be 
required, the Contractor shall furnish the DOE the documentation 
required by the State to acquire such tags.

                             (End of clause)

[49 FR 12042, Mar. 28, 1984, as amended at 59 FR 9108, Feb. 25, 1994; 67 
FR 14872, Mar. 28, 2002; 74 FR 36370, 36378, July 22, 2009]



Sec. 952.208-70  Printing.

    As prescribed in 908.802, insert the following clause:

                           Printing (APR 1984)

    The Contractor shall not engage in, nor subcontract for, any 
printing (as that term is defined in Title I of the U.S. Government 
Printing and Binding Regulations in effect on the effective date of this 
contract) in connection with the performance of work under this 
contract. Provided, however, that performance of a requirement under 
this contract involving the duplication of less than 5,000 copies of a 
single unit, or no more than 25,000 units in the aggregate of multiple 
units, will not be deemed to be printing. A unit is defined as one 
sheet, size 8\1/2\ by 11 inches one side only, one color. A requirement 
is defined as a single publication document.
    (1) The term printing includes the following processes: composition, 
plate making, presswork, binding, microform publishing, or the end items 
produced by such processes.
    (2) If fulfillment of the contract will necessitate reproduction in 
excess of the limits set forth above, the Contractor shall notify the 
Contracting Officer in writing and obtain the Contracting Officer's 
approval prior to acquiring on DOE's behalf production, acquisition, and 
dissemination of printed matter. Such printing must be obtained from the 
Government Printing Office (GPO), a contract source designated by GPO or 
a Joint Committee on Printing authorized federal printing plant.
    (3) Printing services not obtained in compliance with this guidance 
will result in the cost of such printing being disallowed.
    (4) The Contractor will include in each of his subcontracts 
hereunder a provision substantially the same as this clause including 
this paragraph (4).

[[Page 416]]

                             (End of clause)

[49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984, as amended at 59 
FR 9108, Feb. 25, 1994; 74 FR 36370, 36378, 36380, July 22, 2009]



Sec. 952.209  Clauses related to contractor's qualifications.



Sec. 952.209-8  Organizational conflicts of interest-disclosure.

    As prescribed in 909.507-1(e), insert the following provision:

Organizational Conflicts of Interest Disclosure-Advisory and Assistance 
                           Services (JUN 1997)

    (a) Organizational conflict of interest means that because of other 
activities or relationships with other persons, a person is unable or 
potentially unable to render impartial assistance or advice to the 
Government, or the person's objectivity in performing the contract work 
is or might be otherwise impaired, or a person has an unfair competitive 
advantage.
    (b) An offeror notified that it is the apparent successful offeror 
shall provide the statement described in paragraph (c) of this 
provision. For purposes of this provision, ``apparent successful 
offeror'' means the proposer selected for final negotiations or, where 
individual contracts are negotiated with all firms in the competitive 
range, it means all such firms.
    (c) The statement must contain the following:
    (1) A statement of any past (within the past twelve months), 
present, or currently planned financial, contractual, organizational, or 
other interests relating to the performance of the statement of work. 
For contractual interests, such statement must include the name, 
address, telephone number of the client or client(s), a description of 
the services rendered to the previous client(s), and the name of a 
responsible officer or employee of the offeror who is knowledgeable 
about the services rendered to each client, if, in the 12 months 
preceding the date of the statement, services were rendered to the 
Government or any other client (including a foreign government or 
person) respecting the same subject matter of the instant solicitation, 
or directly relating to such subject matter. The agency and contract 
number under which the services were rendered must also be included, if 
applicable. For financial interests, the statement must include the 
nature and extent of the interest and any entity or entities involved in 
the financial relationship. For these and any other interests enough 
such information must be provided to allow a meaningful evaluation of 
the potential effect of the interest on the performance of the statement 
of work.
    (2) A statement that no actual or potential conflict of interest or 
unfair competitive advantage exists with respect to the advisory and 
assistance services to be provided in connection with the instant 
contract or that any actual or potential conflict of interest or unfair 
competitive advantage that does or may exist with respect to the 
contract in question has been communicated as part of the statement 
required by (b) of this provision.
    (d) Failure of the offeror to provide the required statement may 
result in the offeror being determined ineligible for award. 
Misrepresentation or failure to report any fact may result in the 
assessment of penalties associated with false statements or such other 
provisions provided for by law or regulation.

                           (End of provision)

[62 FR 40752, July 30, 1997, as amended at 74 FR 36368, July 22, 2009]



Sec. 952.209-71  [Reserved]



Sec. 952.209-72  Organizational conflicts of interest.

    As prescribed at 909.507-2, insert the following clause:

             Organizational Conflicts of Interest (AUG 2009)

    (a) Purpose. The purpose of this clause is to ensure that the 
Contractor (1) is not biased because of its financial, contractual, 
organizational, or other interests which relate to the work under this 
contract, and (2) does not obtain any unfair competitive advantage over 
other parties by virtue of its performance of this contract.
    (b) Scope. The restrictions described herein shall apply to 
performance or participation by the Contractor and any of its affiliates 
or their successors in interest (hereinafter collectively referred to as 
``Contractor'') in the activities covered by this clause as a prime 
Contractor, subcontractor, cosponsor, joint venturer, consultant, or in 
any similar capacity. For the purpose of this clause, affiliation occurs 
when a business concern is controlled by or has the power to control 
another or when a third party has the power to control both.
    (1) Use of contractor's work product. (i) The Contractor shall be 
ineligible to participate in any capacity in Department contracts, 
subcontracts, or proposals therefore (solicited and unsolicited) which 
stem directly from the Contractor's performance of work under this 
contract for a period of (Contracting Officer see 48 CFR 909.507-2 and 
enter specific term) years after the completion of this contract. 
Furthermore, unless so

[[Page 417]]

directed in writing by the Contracting Officer, the Contractor shall not 
perform any advisory and assistance services work under this contract on 
any of its products or services or the products or services of another 
firm if the Contractor is or has been substantially involved in their 
development or marketing. Nothing in this subparagraph shall preclude 
the Contractor from competing for follow-on contracts for advisory and 
assistance services.
    (ii) If, under this contract, the Contractor prepares a complete or 
essentially complete statement of work or specifications to be used in 
competitive acquisitions, the Contractor shall be ineligible to perform 
or participate in any capacity in any contractual effort which is based 
on such statement of work or specifications. The Contractor shall not 
incorporate its products or services in such statement of work or 
specifications unless so directed in writing by the Contracting Officer, 
in which case the restriction in this subparagraph shall not apply.
    (iii) Nothing in this paragraph shall preclude the Contractor from 
offering or selling its standard and commercial items to the Government.
    (2) Access to and use of information. (i) If the Contractor, in the 
performance of this contract, obtains access to information, such as 
Department plans, policies, reports, studies, financial plans, internal 
data protected by the Privacy Act of 1974 (5 U.S.C. 552a), or data which 
has not been released or otherwise made available to the public, the 
Contractor agrees that without prior written approval of the Contracting 
Officer it shall not--
    (A) use such information for any private purpose unless the 
information has been released or otherwise made available to the public;
    (B) compete for work for the Department based on such information 
for a period of six (6) months after either the completion of this 
contract or until such information is released or otherwise made 
available to the public, whichever is first;
    (C) submit an unsolicited proposal to the Government which is based 
on such information until one year after such information is released or 
otherwise made available to the public; and
    (D) release such information unless such information has previously 
been released or otherwise made available to the public by the 
Department.
    (ii) In addition, the Contractor agrees that to the extent it 
receives or is given access to proprietary data, data protected by the 
Privacy Act of 1974 (5 U.S.C. 552a), or other confidential or privileged 
technical, business, or financial information under this contract, it 
shall treat such information in accordance with any restrictions imposed 
on such information.
    (iii) The Contractor may use technical data it first produces under 
this contract for its private purposes consistent with paragraphs 
(b)(2)(i) (A) and (D) of this clause and the patent, rights in data, and 
security provisions of this contract.
    (c) Disclosure after award. (1) The Contractor agrees that, if 
changes, including additions, to the facts disclosed by it prior to 
award of this contract, occur during the performance of this contract, 
it shall make an immediate and full disclosure of such changes in 
writing to the Contracting Officer. Such disclosure may include a 
description of any action which the Contractor has taken or proposes to 
take to avoid, neutralize, or mitigate any resulting conflict of 
interest. The Department may, however, terminate the contract for 
convenience if it deems such termination to be in the best interest of 
the Government.
    (2) In the event that the Contractor was aware of facts required to 
be disclosed or the existence of an actual or potential organizational 
conflict of interest and did not disclose such facts or such conflict of 
interest to the Contracting Officer, DOE may terminate this contract for 
default.
    (d) Remedies. For breach of any of the above restrictions or for 
nondisclosure or misrepresentation of any facts required to be disclosed 
concerning this contract, including the existence of an actual or 
potential organizational conflict of interest at the time of or after 
award, the Government may terminate the contract for default, disqualify 
the Contractor from subsequent related contractual efforts, and pursue 
such other remedies as may be permitted by law or this contract.
    (e) Waiver. Requests for waiver under this clause shall be directed 
in writing to the Contracting Officer and shall include a full 
description of the requested waiver and the reasons in support thereof. 
If it is determined to be in the best interests of the Government, the 
Contracting Officer may grant such a waiver in writing.

                             (End of clause)

    Alternate I: In accordance with 909.507-2 and 970.0905, include the 
following alternate in the specified types of contracts.

    (f) Subcontracts. (1) The Contractor shall include a clause, 
substantially similar to this clause, including this paragraph (f), in 
subcontracts expected to exceed the simplified acquisition threshold 
determined in accordance with 48 CFR part 13 and involving the 
performance of advisory and assistance services as that term is defined 
at 48 CFR 2.101. The terms ``contract,'' ``Contractor,'' and 
``contracting officer'' shall be appropriately modified to preserve the 
Government's rights.

[[Page 418]]

    (2) Prior to the award under this contract of any such subcontracts 
for advisory and assistance services, the Contractor shall obtain from 
the proposed subcontractor or consultant the disclosure required by 48 
CFR 909.507-1, and shall determine in writing whether the interests 
disclosed present an actual or significant potential for an 
organizational conflict of interest. Where an actual or significant 
potential organizational conflict of interest is identified, the 
Contractor shall take actions to avoid, neutralize, or mitigate the 
organizational conflict to the satisfaction of the Contractor. If the 
conflict cannot be avoided or neutralized, the Contractor must obtain 
the approval of the DOE Contracting Officer prior to entering into the 
subcontract.

                           (End of alternate)

[62 FR 40752, July 30, 1997, as amended at 74 FR 36368, 36378, 36380, 
July 22, 2009; 76 FR 7694, Feb. 11, 2011]



Sec. 952.211  Clauses related to contract delivery or performance.



Sec. 952.211-70  Priorities and allocations for energy programs 
          (solicitations):

    As prescribed in 911.604(a), insert the following provision in 
solicitations that will result in the award of a contract in support of 
DOE atomic energy programs:

          Priorities and Allocations (Atomic Energy) (APR 2008)

    Contracts or purchase orders awarded as a result of this 
solicitation shall be assigned a [ ] DO-Rating; [ ] DX Rating; and 
certified for national defense use in accordance with the Defense 
Priorities and Allocations System (DPAS) regulation (15 CFR part 700) 
(Contracting Officer check appropriate box.)

                           (End of provision)

[73 FR 10985, Feb. 29, 2008, as amended at 74 FR 36369, 36370, July 22, 
2009]



Sec. 952.211-71  Priorities and allocations for energy programs 
          (contracts).

    As prescribed in 911.604(b), insert the following clause in 
contracts and purchase orders that are placed in support of authorized 
DOE atomic energy programs pursuant to the Atomic Energy Act of 1954, as 
amended:

          Priorities and Allocations (Atomic Energy) (APR 2008)

    The Contractor shall follow the provisions of Defense Priorities and 
Allocations System (DPAS) regulation (15 CFR part 700) in obtaining 
materials (including equipment), services, or facilities needed to fill 
this contract.

                             (End of clause)

[73 FR 10985, Feb. 29, 2008, as amended at 74 FR 36369, 36370, July 22, 
2009]



Sec. 952.211-72--952.211-73  [Reserved]



Sec. 952.215-70  Key Personnel.

    As prescribed in 915.408-70, the contracting officer shall insert 
the following clause:

                        Key Personnel (DEC 2000)

    (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. Notwithstanding the foregoing, 
if the Contractor deems immediate removal or suspension of any member of 
its management team is necessary to fulfill its obligation to maintain 
satisfactory standards of employee competency, conduct, and integrity 
under the clause at 48 CFR 970.5203-3, Contractor's Organization, the 
Contractor may remove or suspend such person at once, although the 
Contractor must notify Contracting Officer prior to or concurrently with 
such action.
    (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)

[65 FR 81008, Dec. 22, 2000, as amended at 74 FR 36369, July 22, 2009; 
76 FR 7694, Feb. 11, 2011]



Sec. 952.216  Clauses related to types of contracts.



Sec. 952.216-7  Allowable cost and payment.

    As prescribed in 916.307(a), when contracting with a commercial 
organization modify paragraph (a) of the clause at 48 CFR 52.216-7 by 
adding the phrase ``as supplemented by subpart 931.2 of the Department 
of Energy Acquisition

[[Page 419]]

Regulations (DEAR),'' after 48 CFR subpart 31.2.

[74 FR 36369, July 22, 2009, as amended at 76 FR 7694, Feb. 11, 2011]



Sec. 952.216-15  Predetermined indirect cost rates.

    Alternate (AUG 2009): As prescribed in 916.307(g), modify paragraph 
(c) of the clause at 48 CFR 52.216-15, Predetermined Indirect Cost 
Rates, by deleting the words ``Subpart 31.4'' and substituting for them 
``Subpart 31.6'' and insert the clause in solicitations and contracts 
when a cost-reimbursement research and development contract with a State 
or local government is contemplated and predetermined indirect cost 
rates are to be used.

[49 FR 12042, Mar. 28, 1984, as amended at 59 FR 9109, Feb. 25, 1994; 62 
FR 2312, Jan. 16, 1997; 74 FR 36369, July 22, 2009; 76 FR 7694, Feb. 11, 
2011]



Sec. 952.217-70  Acquisition of real property.

    Insert the following clause when required by 917.7403:

                 Acquisition of Real Property (MAR 2011)

    (a) Notwithstanding any other provision of the contract, the prior 
approval of the Contracting Officer shall be obtained when, in 
performance of this contract, the Contractor acquires or proposes to 
acquire use of real property by:
    (1) Purchase, on the Government's behalf or in the Contractor's own 
name, with title eventually vesting in the Government.
    (2) Lease for which the Department of Energy will reimburse the 
incurred costs as a reimbursable contract cost.
    (3) Acquisition of temporary interest through easement, license or 
permit, and the Government funds the entire cost of the temporary 
interest.
    (b) Justification of and execution of any real property acquisitions 
shall be in accordance and compliance with directions provided by the 
Contracting Officer.
    (c) The substance of this clause, including this paragraph (c), 
shall be included in any subcontract occasioned by this contract under 
which property described in paragraph (a) of this clause shall be 
acquired.

                             (End of clause)

[49 FR 12042, Mar. 28, 1984, as amended at 67 FR 14872, Mar. 28, 2002; 
74 FR 36370, 36378, 36380, July 22, 2009; 76 FR 7694, Feb. 11, 2011]



Sec. 952.219-70  DOE Mentor-Protege program.

    In accordance with 919.7014 insert the following provision in 
applicable solicitations.

                  DOE Mentor-Protege Program (MAY 2000)

    The Department of Energy has established a Mentor-Protege Program to 
encourage its prime contractors to assist firms certified under section 
8(a) of the Small Business Act by SBA, other small disadvantaged 
businesses, women-owned small businesses, Historically Black Colleges 
and Universities and Minority Institutions, other minority institutions 
of higher learning and small business concerns owned and controlled by 
service disabled veterans in enhancing their business abilities. If the 
contract resulting from this solicitation is awarded on a cost-plus-
award fee basis, the Contractor's performance as a Mentor may be 
evaluated as part of the award fee plan. Mentor and Protege firms will 
develop and submit ``lessons learned'' evaluations to DOE at the 
conclusion of the contract. Any DOE contractor that is interested in 
becoming a Mentor should refer to the applicable regulations at 48 CFR 
919.70 and should contact the Department of Energy's Office of Small and 
Disadvantaged Business Utilization.

[65 FR 21371, Apr. 21, 2000, as amended at 75 FR 69014, Nov. 10, 2010]



Sec. 952.223  Clauses related to environment, energy and water 
          efficiency, renewable energy technologies, occupational 
          safety, and drug-free workplace.



Sec. 952.223-71  Integration of environment, safety, and health into 
          work planning and execution.

    As prescribed in 923.7003 the clause set forth at 970.5223-1 shall 
be included in all contracts and subcontracts for, and be made 
applicable to, work to be performed at a government-owned or leased 
facility where DOE has elected to assert its statutory authority to 
establish and enforce occupational safety and health standards 
applicable to the work conditions of contractor and subcontractor 
employees, and to the protection of the public health and safety.

[49 FR 12042, Mar. 28, 1984, as amended at 59 FR 9109, Feb. 25, 1994; 65 
FR 81008, Dec. 22, 2000; 74 FR 36369, July 22, 2009]

[[Page 420]]



Sec. 952.223-72  Radiation protection and nuclear criticality.

    As prescribed in 923.7003 the clause set forth herein shall be 
included in those contracts or subcontracts for, and be made applicable 
to, work to be performed at a facility where DOE does not elect to 
assert its statutory authority to enforce occupational safety and health 
standards applicable to the working conditions of contractor and 
subcontractor employees, but does need to enforce radiological safety 
and health standards pursuant to provisions of the contract or 
subcontract rather than by reliance upon Nuclear Regulatory Commission 
licensing requirements (including agreements with states under section 
274 of the Atomic Energy Act):

         Radiation Protection and Nuclear Criticality (APR 1984)

    The Contractor shall take all reasonable precautions in the 
performance of work under this contract to protect the safety and health 
of employees and of members of the public against the hazards of 
ionizing radiation and radioactive materials and shall comply with all 
applicable radiation protection and nuclear criticality safety standards 
and requirements (including reporting requirements) of DOE. The 
Contractor shall submit a management program and implementation plan to 
the Contracting Officer for review and approval within 30 days after the 
effective date of this contract or modification. In the event that the 
Contractor fails to comply with said standards and requirements of DOE, 
the Contracting Officer may, without prejudice to any other legal or 
contractual rights of DOE, issue an order stopping all or any part of 
the work. Thereafter, a start order for resumption of the work may be 
issued at the discretion of the Contracting Officer. The Contractor 
shall make no claim for an extension of time or for compensation or 
damages by reason of or in connection with such work stoppage.

                             (End of clause)

[49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984, as amended at 59 
FR 9109, Feb. 25, 1994; 74 FR 36369, 36370, 36378, 36380, July 22, 2009]



Sec. 952.223-73--952.223-74  [Reserved]



Sec. 952.223-75  Preservation of individual occupational radiation 
          exposure records.

    As prescribed at 923.7003(h), insert the clause in contracts 
containing 952.223-71, Integration of environment, safety, and health 
into work planning and execution, or 952.223-72, Radiation protection 
and nuclear criticality:

Preservation of Individual Occupational Radiation Exposure Records (APR 
                                  1984)

    Individual occupational radiation exposure records generated in the 
performance of work under this contract shall be subject to inspection 
by DOE and shall be preserved by the Contractor until disposal is 
authorized by DOE or at the option of the Contractor delivered to DOE 
upon completion or termination of the contract. If the Contractor 
exercises the foregoing option, title to such records shall vest in DOE 
upon delivery.

                             (End of clause)

[49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984, as amended at 59 
FR 9109, Feb. 25, 1994; 62 FR 34862, June 27, 1997; 74 FR 36369, 36370, 
36378, July 22, 2009]



Sec. 952.223-76  Conditional payment of fee or profit--safeguarding 
          restricted data and other classified information and 
          protection of worker safety and health.

    As prescribed at 923.7003(f), insert the following clause:

 Conditional Payment of Fee or Profit--Safeguarding Restricted Data and 
Other Classified Information and Protection of Worker Safety and Health 
                               (DEC 2010)

    (a) General. (1) The payment of fee or profit (i.e., award fee, 
fixed fee, and incentive fee or profit) under this contract is dependent 
upon the Contractor's compliance with the terms and conditions of this 
contract relating to the safeguarding of Restricted Data and other 
classified information (i.e., Formerly Restricted Data and National 
Security Information) and relating to the protection of worker safety 
and health, including compliance with applicable law, regulation, and 
DOE directives. The term ``contractor'' as used in this clause to 
address failure to comply shall mean ``contractor or contractor 
employee.''
    (2) In addition to other remedies available to the Federal 
Government, if the Contractor fails to comply with the terms and 
conditions of this contract relating to the

[[Page 421]]

safeguarding of Restricted Data and other classified information or 
relating to the protection of worker safety and health, the Contracting 
Officer may unilaterally reduce the amount of fee or profit that is 
otherwise payable to the Contractor in accordance with the terms and 
conditions of this clause.
    (3) Any reduction in the amount of fee or profit earned by the 
Contractor will be determined by the severity of the Contractor's 
failure to comply with contract terms and conditions relating to the 
safeguarding of Restricted Data or other classified information or 
relating to worker safety and health pursuant to the degrees specified 
in paragraphs (c) and (d) of this clause.
    (b) Reduction amount. (1) If in any period (see paragraph (b)(2) of 
this clause) it is found that the Contractor has failed to comply with 
contract terms and conditions relating to the safeguarding of Restricted 
Data or other classified information or relating to the protection of 
worker safety and health, the Contractor's fee or profit of the period 
may be reduced. Such reduction shall not be less than 26 percent nor 
greater than 100 percent of the total fee or profit earned for a first 
degree performance failure, not less than 11 percent nor greater than 25 
percent for a second degree performance failure, and up to 10 percent 
for a third degree performance failure. The Contracting Officer must 
consider mitigating factors that may warrant a reduction below the 
specified range (see 48 CFR 904.402(c) and 48 CFR 923.7002(a)(2)). The 
mitigating factors include, but are not limited to, the following ((v), 
(vi), (vii), and (viii) apply to worker safety and health (WS&H) only :
    (i) Degree of control the Contractor had over the event or incident.
    (ii) Efforts the Contractor had made to anticipate and mitigate the 
possibility of the event in advance.
    (iii) Contractor self-identification and response to the event to 
mitigate impacts and recurrence.
    (iv) General status (trend and absolute performance) of: 
Safeguarding Restricted Data and other classified information and 
compliance in related security areas; or of protecting WS&H and 
compliance in related areas.
    (v) Contractor demonstration to the Contracting Officer's 
satisfaction that the principles of industrial WS&H standards are 
routinely practiced (e.g., Voluntary Protection Program Star Status).
    (vi) Event caused by ``Good Samaritan'' act by the Contractor (e.g., 
offsite emergency response).
    (vii) Contractor demonstration that a performance measurement system 
is routinely used to improve and maintain WS&H performance (including 
effective resource allocation) and to support DOE corporate decision-
making (e.g., policy, WS&H programs).
    (viii) Contractor demonstration that an Operating Experience and 
Feedback Program is functioning that demonstrably affects continuous 
improvement in WS&H by use of lessons-learned and best practices inter- 
and intra-DOE sites.
    (2)(i) Except in the case of performance-based, firm-fixed-price 
contracts (see paragraph (b)(3) of this clause), the Contracting 
Officer, for purposes of this clause, will at the time of contract 
award, or as soon as practicable thereafter, allocate the total amount 
of fee or profit that is available under this contract to equal periods 
of [insert 6 or 12] months to run sequentially for the entire term of 
the contract (i.e., from the effective date of the contract to the 
expiration date of the contract, including all options). The amount of 
fee or profit to be allocated to each period shall be equal to the 
average monthly fee or profit that is available or otherwise payable 
during the entire term of the contract, multiplied by the number of 
months established above for each period.
    (ii) Under this clause, the total amount of fee or profit that is 
subject to reduction in a period in which a performance failure occurs, 
in combination with any reduction made under any other clause in the 
contract that provides for a reduction to the fee or profit, shall not 
exceed the amount of fee or profit that is earned by the Contractor in 
the period established pursuant to paragraph (b)(2)(i) of this clause.
    (3) For performance-based firm-fixed-price contracts, the 
Contracting Officer will at the time of contract award include negative 
monetary incentives in the contract for Contractor violations relating 
to the safeguarding of Restricted Data and other classified information 
and relating to protection of worker safety and health.
    (c) Safeguarding restricted data and other classified information. 
Performance failures occur if the Contractor does not comply with the 
terms and conditions of this contract relating to the safeguarding of 
Restricted Data and other classified information. The degrees of 
performance failures relating to the Contractor's obligations under this 
contract for safeguarding of Restricted Data and other classified 
information are as follows:
    (1) First Degree: Performance failures that have been determined, in 
accordance with applicable law, regulation, or DOE directive, to have 
resulted in, or that can reasonably be expected to result in, 
exceptionally grave damage to the national security. The following are 
examples of performance failures or performance failures of similar 
import that will be considered first degree:
    (i) Non-compliance with applicable laws, regulations, and DOE 
directives actually resulting in, or creating a risk of, loss, 
compromise, or unauthorized disclosure of Top Secret Restricted Data or 
other information classified as Top Secret, any classification

[[Page 422]]

level of information in a Special Access Program (SAP), information 
identified as sensitive compartmented information (SCI), or high risk 
nuclear weapons-related data.
    (ii) Contractor actions that result in a breakdown of the safeguards 
and security management system that can reasonably be expected to result 
in the loss, compromise, or unauthorized disclosure of Top Secret 
Restricted Data, or other information classified as Top Secret, any 
classification level of information in a SAP, information identified as 
SCI, or high risk nuclear weapons-related data.
    (iii) Failure to promptly report the loss, compromise, or 
unauthorized disclosure of Top Secret Restricted Data or other 
information classified as Top Secret, any classification level of 
information in a SAP, information identified as SCI, or high risk 
nuclear weapons-related data.
    (iv) Failure to timely implement corrective actions stemming from 
the loss, compromise, or unauthorized disclosure of Top Secret 
Restricted Data or other classified information classified as Top 
Secret, any classification level of information in a SAP, information 
identified as SCI, or high risk nuclear weapons-related data.
    (2) Second Degree: Performance failures that have been determined, 
in accordance with applicable law, regulation, or DOE directive, to have 
actually resulted in, or that can reasonably be expected to result in, 
serious damage to the national security. The following are examples of 
performance failures or performance failures of similar import that will 
be considered second degree:
    (i) Non-compliance with applicable laws, regulations, and DOE 
directives actually resulting in, or creating risk of, loss, compromise, 
or unauthorized disclosure of Secret Restricted Data or other 
information classified as Secret.
    (ii) Contractor actions that result in a breakdown of the safeguards 
and security management system that can reasonably be expected to result 
in the loss, compromise, or unauthorized disclosure of Secret Restricted 
Data, or other information classified as Secret.
    (iii) Failure to promptly report the loss, compromise, or 
unauthorized disclosure of Restricted Data or other classified 
information regardless of classification (except for information covered 
by paragraph (c)(1)(iii) of this clause).
    (iv) Failure to timely implement corrective actions stemming from 
the loss, compromise, or unauthorized disclosure of Secret Restricted 
Data or other information classified as Secret.
    (3) Third Degree: Performance failures that have been determined, in 
accordance with applicable law, regulation, or DOE directive, to have 
actually resulted in, or that can reasonably be expected to result in, 
undue risk to the common defense and security. In addition, this 
category includes performance failures that result from a lack of 
contractor management and/or employee attention to the proper 
safeguarding of Restricted Data and other classified information. These 
performance failures may be indicators of future, more severe 
performance failures and/or conditions, and if identified and corrected 
early would prevent serious incidents. The following are examples of 
performance failures or performance failures of similar import will be 
considered third degree:
    (i) Non-compliance with applicable laws, regulations, and DOE 
directives actually resulting in, or creating risk of, loss, compromise, 
or unauthorized disclosure of Restricted Data or other information 
classified as Confidential.
    (ii) Failure to promptly report alleged or suspected violations of 
laws, regulations, or directives pertaining to the safeguarding of 
Restricted Data or other classified information.
    (iii) Failure to identify or timely execute corrective actions to 
mitigate or eliminate identified vulnerabilities and reduce residual 
risk relating to the protection of Restricted Data or other classified 
information in accordance with the Contractor's Safeguards and Security 
Plan or other security plan, as applicable.
    (iv) Contractor actions that result in performance failures which 
unto themselves pose minor risk, but when viewed in the aggregate 
indicate degradation in the integrity of the Contractor's safeguards and 
security management system relating to the protection of Restricted Data 
and other classified information.
    (d) Protection of worker safety and health. Performance failures 
occur if the contractor does not comply with the contract's WS&H terms 
and conditions, which may be included in the DOE approved contractor 
Integrated Safety Management System (ISMS). The degrees of performance 
failure under which reductions of fee or profit will be determined are:
    (1) First Degree: Performance failures that are most adverse to WS&H 
or could threaten the successful completion of a program or project. For 
contracts including ISMS requirements, failure to develop and obtain 
required DOE approval of WS&H aspects of an ISMS is considered first 
degree. The Government will perform necessary review of the ISMS in a 
timely manner and will not unreasonably withhold approval of the WS&H 
aspects of the Contractor's ISMS. The following performance failures or 
performance failures of similar import will be deemed first degree:
    (i) Type A accident (defined in DOE Order 225.1A, Accident 
Investigations, or its successor).

[[Page 423]]

    (ii) Two Second Degree performance failures during an evaluation 
period.
    (2) Second Degree: Performance failures that are significantly 
adverse to WS&H. They include failures to comply with approved WS&H 
aspects of an ISMS that result in an actual injury, exposure, or 
exceedence that occurred or nearly occurred but had minor practical 
long-term health consequences. The following performance failures or 
performance failures of similar import will be considered second degree:
    (i) Type B accident (defined in DOE Order 225.1A, Accident 
Investigations, or its successor).
    (ii) Non-compliance with approved WS&H aspects of an ISMS that 
results in a near miss of a Type A or B accident. A near miss is a 
situation in which an inappropriate action occurs, or a necessary action 
is omitted, but does not result in an adverse effect.
    (iii) Failure to mitigate or notify DOE of an imminent danger 
situation after discovery, where such notification is a requirement of 
the contract.
    (3) Third Degree: Performance failures that reflect a lack of focus 
on improving WS&H. They include failures to comply with approved WS&H 
aspects of an ISMS that result in potential breakdown of the 
Contractor's WS&H system. The following performance failures or 
performance failures of similar import will be considered third degree:
    (i) Failure to implement effective corrective actions to address 
deficiencies/non-compliance documented through external (e.g., Federal) 
oversight and/or reported per DOE Manual 231.1-2, Occurrence Reporting 
and Processing of Operations Information, or its successor, 
requirements, or internal oversight of DOE Order 470.2B, Independent 
Oversight and Performance Assurance Program, or its successor, 
requirements.
    (ii) Multiple similar non-compliances identified by external (e.g., 
Federal) oversight that in aggregate indicate a significant WS&H system 
breakdown.
    (iii) Non-compliances that either have, or may have, significant 
negative impacts to workers that indicate a significant WS&H system 
breakdown.
    (iv) Failure to notify DOE upon discovery of events or conditions 
where notification is required by the terms and conditions of the 
contract.

                             (End of clause)

[68 FR 68778, Dec. 10, 2003, as amended at 74 FR 36369, 36370, 36378, 
36380, July 22, 2009; 75 FR 69013, Nov. 10, 2010]



Sec. 952.223-77  Conditional payment of fee or profit--protection of 
          worker safety and health.

    As prescribed at 923.7003(g), insert the following clause:

 Conditional Payment of Fee or Profit--Protection of Worker Safety and 
                            Health (DEC 2010)

    (a) General. (1) The payment of fee or profit (i.e., award fee, 
fixed fee, and incentive fee or profit) under this contract is dependent 
upon the Contractor's compliance with the terms and conditions of this 
contract relating to the protection of worker safety and health (WS&H), 
including compliance with applicable law, regulation, and DOE 
directives. The term ``Contractor'' as used in this clause to address 
failure to comply shall mean ``Contractor or Contractor employee.''
    (2) In addition to other remedies available to the Federal 
Government, if the Contractor fails to comply with the terms and 
conditions of this contract relating to the protection of worker safety 
and health, the Contracting Officer may unilaterally reduce the amount 
of fee or profit that is otherwise payable to the Contractor in 
accordance with the terms and conditions of this clause.
    (3) Any reduction in the amount of fee or profit earned by the 
Contractor will be determined by the severity of the Contractor's 
failure to comply with contract terms and conditions relating to worker 
safety and health pursuant to the degrees specified in paragraph (c) of 
this clause.
    (b) Reduction amount. (1) If in any period (see paragraph (b)(2) of 
this clause) it is found that the Contractor has failed to comply with 
contract terms and conditions relating to the protection of worker 
safety and health, the Contractor's fee or profit of the period may be 
reduced. Such reduction shall not be less than 26% nor greater than 100% 
of the total fee or profit earned for a first degree performance 
failure, not less than 11% nor greater than 25% for a second degree 
performance failure, and up to 10% for a third degree performance 
failure. The Contracting Officer must consider mitigating factors that 
may warrant a reduction below the specified range (see 48 CFR 
923.7001(b)). The mitigating factors include, but are not limited to, 
the following:
    (i) Degree of control the Contractor had over the event or incident.
    (ii) Efforts the Contractor had made to anticipate and mitigate the 
possibility of the event in advance.
    (iii) Contractor self-identification and response to the event to 
mitigate impacts and recurrence.
    (iv) General status (trend and absolute performance) of protecting 
WS&H and compliance in related areas.

[[Page 424]]

    (v) Contractor demonstration to the Contracting Officer's 
satisfaction that the principles of industrial WS&H standards are 
routinely practiced (e.g., Voluntary Protection Program Star Status).
    (vi) Event caused by ``Good Samaritan'' act by the Contractor (e.g., 
offsite emergency response).
    (vii) Contractor demonstration that a performance measurement system 
is routinely used to improve and maintain WS&H performance (including 
effective resource allocation) and to support DOE corporate decision-
making (e.g., policy, WS&H programs).
    (viii) Contractor demonstration that an Operating Experience and 
Feedback Program is functioning that demonstrably affects continuous 
improvement in WS&H by use of lessons-learned and best practices inter- 
and intra-DOE sites.
    (2)(i) Except in the case of performance based firm-fixed-price 
contracts (see paragraph (b)(3) below), the Contracting Officer, for 
purposes of this clause, will at the time of contract award, or as soon 
as practicable thereafter, allocate the total amount of fee or profit 
that is available under this contract to equal periods of [insert 6 or 
12] months to run sequentially for the entire term of the contract 
(i.e., from the effective date of the contract to the expiration date of 
the contract, including all options). The amount of fee or profit to be 
allocated to each period shall be equal to the average monthly fee or 
profit that is available or otherwise payable during the entire term of 
the contract, multiplied by the number of months established above for 
each period.
    (ii) Under this clause, the total amount of fee or profit that is 
subject to reduction in a period in which a performance failure occurs, 
in combination with any reduction made under any other clause in the 
contract that provides for a reduction to the fee or profit, shall not 
exceed the amount of fee or profit that is earned by the Contractor in 
the period established pursuant to paragraph (b)(2)(i) of this clause.
    (3) For performance-based firm-fixed-price contracts, the 
Contracting Officer will at the time of contract award include negative 
monetary incentives in the contract for contractor violations relating 
to the protection of worker safety and health.
    (c) Protection of worker safety and health. Performance failures 
occur if the Contractor does not comply with the contract's WS&H terms 
and conditions, which may be included in the DOE approved contractor 
Integrated Safety Management System (ISMS). The degrees of performance 
failure under which reductions of fee or profit will be determined are:
    (1) First Degree: Performance failures that are most adverse to WS&H 
or could threaten the successful completion of a program or project. For 
contracts including ISMS requirements, failure to develop and obtain 
required DOE approval of WS&H aspects of an ISMS is considered first 
degree. The Government will perform necessary review of the ISMS in a 
timely manner and will not unreasonably withhold approval of the WS&H 
aspects of the Contractor's ISMS. The following performance failures or 
performance failures of similar import will be deemed first degree:
    (i) Type A accident (defined in DOE Order 225.1A, Accident 
Investigations, or its successor).
    (ii) Two Second Degree performance failures during an evaluation 
period.
    (2) Second Degree: Performance failures that are significantly 
adverse to WS&H. They include failures to comply with approved WS&H 
aspects of an ISMS that result in an actual injury, exposure, or 
exceedence that occurred or nearly occurred but had minor practical 
long-term health consequences. The following performance failures or 
performance failures of similar import will be considered second degree:
    (i) Type B accident (defined in DOE Order 225.1A, Accident 
Investigations, or its successor).
    (ii) Non-compliance with approved WS&H aspects of an ISMS that 
results in a near miss of a Type A or B accident. A near miss is a 
situation in which an inappropriate action occurs, or a necessary action 
is omitted, but does not result in an adverse effect.
    (iii) Failure to mitigate or notify DOE of an imminent danger 
situation after discovery, where such notification is a requirement of 
the contract.
    (3) Third Degree: Performance failures that reflect a lack of focus 
on improving WS&H. They include failures to comply with approved WS&H 
aspects of an ISMS that result in potential breakdown of the 
Contractor's WS&H system. The following performance failures or 
performance failures of similar import will be considered third degree:
    (i) Failure to implement effective corrective actions to address 
deficiencies/non-compliance documented through external (e.g., Federal) 
oversight and/or reported per DOE Manual 231.1-2, Occurrence Reporting 
and Processing of Operations Information, or its successor, 
requirements, or internal oversight of DOE Order 470.2B, Independent 
Oversight and Performance Assurance Program, or its successor, 
requirements.
    (ii) Multiple similar non-compliances identified by external (e.g., 
Federal) oversight that in aggregate indicate a significant WS&H system 
breakdown.
    (iii) Non-compliances that either have, or may have, significant 
negative impacts to workers that indicate a significant WS&H system 
breakdown.
    (iv) Failure to notify DOE upon discovery of events or conditions 
where notification is

[[Page 425]]

required by the terms and conditions of the contract.

                             (End of clause)

[69 FR 68780, Dec. 10, 2004, as amended at 74 FR 36369, 36370, 36378, 
36380, July 22, 2009; 75 FR 69013, Nov. 10, 2010]



Sec. 952.223-78  Sustainable acquisition program.

    In accordance with 923.103 insert the following clause or its 
Alternate I in all contracts under which the contractor operates 
Government-owned facilities, motor vehicle fleets, or significant 
portions thereof or performs construction at a DOE facility.

               Sustainable Acquisition Program (OCT 2010)

    (a) Pursuant to Executive Order 13423, Strengthening Federal 
Environmental, Energy and Transportation Management, and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance, the Department of Energy (DOE) is committed to managing its 
facilities in an environmentally preferable and sustainable manner that 
will promote the natural environment and protect the health and well 
being of its Federal employees and contractor service providers. In the 
performance of work under this contract, the Contractor shall provide 
its services in a manner that promotes the natural environment, reduces 
greenhouse gas emissions and protects the health and well being of 
Federal employees, contract service providers and visitors using the 
facility.
    (b) Green purchasing or sustainable acquisition has several 
interacting initiatives. The Contractor must comply with initiatives 
that are current as of the contract award date. DOE may require 
compliance with revised initiatives from time to time. The Contractor 
may request an equitable adjustment to the terms of its contract using 
the procedures in the Changes clause of the contract. The initiatives 
important to these Orders are explained on the following Government or 
Industry Internet Sites:
    (1) Recycled Content Products are described at http://epa.gov/cpg.
    (2) Biobased Products are described at http://www.biopreferred.gov/.
    (3) Energy efficient products are at http://energystar.gov/products 
for Energy Star products.
    (4) Energy efficient products are at http://www.femp.energy.gov/
procurement for FEMP designated products.
    (5) Environmentally preferable and energy efficient electronics 
including desktop computers, laptops and monitors are at http://
www.epeat.net the Electronic Products Environmental Assessment Tool 
(EPEAT) the Green Electronics Council site.
    (6) Green house gas emission inventories are required, including 
Scope 3 emissions which include contractor emissions. These are 
discussed at Section 13 of Executive Order 13514 which can be found at 
http://www.archives.gov/federal-register/executive-orders/
disposition.html.
    (7) Non-Ozone Depleting Alternative Products are at http://
www.epa.gov/ozone/strathome.html.
    (8) Water efficient plumbing products are at http://epa.gov/
watersense.
    (c) The clauses at FAR 52.223-2, Affirmative Procurement of Biobased 
Products under Service and Construction Contracts, 52.223-15, Energy 
Efficiency in Energy Consuming Products, and 52.223-17 Affirmative 
Procurement of EPA-Designated Items in Service and Construction 
Contracts, require the use of products that have biobased content, are 
energy efficient, or have recycled content. To the extent that the 
services provided by the Contractor require provision of any of the 
above types of products, the Contractor must provide the energy 
efficient and environmentally sustainable type of product unless that 
type of product--
    (1) Is not available;
    (2) Is not life cycle cost effective or does not exceed 110% of the 
price of alternative items if life cycle cost data is unavailable (EPEAT 
is an example of lifecycle costs that have been analyzed by DOE and 
found to be acceptable at the silver and gold level);
    (3) Does not meet performance needs; or,
    (4) Cannot be delivered in time to meet a critical need.
    (d) In the performance of this contract, the Contractor shall comply 
with the requirements of Executive Order 13423, Strengthening Federal 
Environmental, Energy and Transportation Management, (http://
www.epa.gov/greeningepa/practices/eo13423.htm) and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance (http://www.archives.gov/federal-register/executive-orders/
disposition.html). The Contractor shall also consider the best practices 
within the DOE Acquisition Guide, Chapter 23, Acquisition Considerations 
Regarding Federal Leadership in Environmental, Energy, and Economic 
Performance. This guide includes information concerning recycled content 
products, biobased products, energy efficient products, water efficient 
products, alternative fuels and vehicles, non-ozone depleting substances 
and other environmentally preferable products and services. This guide 
is available on the Internet at: http://management.energy.gov/documents/
AcqGuide23pt0Rev1.pdf.
    (e) Contractors must establish and maintain a documented energy 
management program which includes requirements for energy

[[Page 426]]

and water efficient equipment, EnergyStar or WaterSense, as applicable 
and procedures for verification of purchases, following the criteria in 
DOE Order 430.2B, Departmental Energy, Renewable Energy, and 
Transportation Management, Attachment 1, or its successor to the extent 
required elsewhere in the contract. This requirement should not be 
flowed down to subcontractors.
    (f) In complying with the requirements of paragraph (c) of this 
clause, the Contractor(s) shall coordinate its activities with and 
submit required reports through the Environmental Sustainability 
Coordinator or equivalent position. Reporting under this paragraph and 
paragraphs (g) and (h) of this clause is only required if the contract 
or subcontract offers subcontracting opportunities for energy efficient 
and environmentally sustainable products or services exceeding $100,000 
in any contract year.
    (g) The Contractor shall prepare and submit performance reports, if 
required, using prescribed DOE formats, at the end of the Federal fiscal 
year, on matters related to the acquisition of environmentally 
preferable and sustainable products and services. This is a material 
delivery under the contract. Failure to perform this requirement may be 
considered a failure that endangers performance of this contract and may 
result in termination for default.
    (h) These provisions shall be flowed down only to first tier 
subcontracts exceeding the simplified acquisition threshold that support 
operation of the DOE facility and offer significant subcontracting 
opportunities for energy efficient or environmentally sustainable 
products or services. The Subcontractor, if subcontracting opportunities 
for sustainable and environmentally preferable products or services 
exceed the threshold in paragraph (f) of this clause, will comply with 
the procedures in paragraphs (c) through (f) of this clause regarding 
the collection of all data necessary to generate the reports required 
under paragraphs (c) through (f) of this clause, and submit the reports 
directly to the Prime Contractor's Environmental Sustainability 
Coordinator at the supported facility. The Subcontractor will advise the 
Contractor if it is unable to procure energy efficient and 
environmentally sustainable items and cite which of the reasons in 
paragraph (c) of this clause apply. The reports may be submitted at the 
conclusion of the subcontract term provided that the subcontract 
delivery term is not multi-year in nature. If the delivery term is 
multi-year, the Subcontractor shall report its accomplishments for each 
Federal fiscal year in a manner and at a time or times acceptable to 
both parties. Failure to comply with these reporting requirements may be 
considered a breach of contract with attendant consequences.
    (i) When this clause is used in a subcontract, the word 
``Contractor'' will be understood to mean ``Subcontractor.''

                             (End of clause)

    Alternate I for Construction Contracts and Subcontracts (OCT 2010)--
When contracting for construction, alteration, or renovation of DOE 
facilities, substitute the following paragraphs (d) through (i):
    (d) In the performance of this contract, the Contractor shall comply 
with the requirements of Executive Order 13423, Strengthening Federal 
Environmental, Energy and Transportation Management, (http://
www.epa.gov/greeningepa/practices/eo13423.htm) and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance (http://www.archives.gov/federal-register/executive-orders/
disposition.html). The Contractor shall also consider the best practices 
within the DOE Acquisition Guide, Chapter 23, Acquisition Considerations 
Regarding Federal Leadership in Environmental, Energy, and Economic 
Performance. This guide includes information concerning recycled content 
products, biobased products, energy efficient products, water efficient 
products, alternative fuels and vehicles, non-ozone depleting substances 
and other environmentally preferable products and services. This guide 
is available on the Internet at: http://management.energy.gov/documents/
AcqGuide23pt0Rev1.pdf. When developing the Bill of Materials for 
approval of the Contracting Officer or Representative, the contractor 
shall specify energy efficient and environmentally sustainable materials 
to the extent possible within the constraints of the general design 
specifications. Compliance with the Guiding Principles for Federal 
Leadership in High Performance and Sustainable Buildings (Guiding 
Principles) shall be achieved through certification to the Leadership in 
Energy and Environmental Design (LEED) Gold level under the LEED rating 
system most suited to the building type.
    (e) [Reserved]
    (f) In complying with the requirements of paragraph (c) of this 
clause, the Contractor(s) shall coordinate its activities with and 
submit required reports through the Environmental Sustainability 
Coordinator or equivalent position. Reporting under this paragraph and 
paragraphs (g) and (h) of this clause is only required if the contract 
or subcontract offers subcontracting opportunities for energy efficient 
and environmentally sustainable products or services exceeding $100,000 
in any contract year, except for reporting on high performance 
sustainable buildings which may be required elsewhere in this contract.

[[Page 427]]

    (g) The Contractor shall prepare and submit performance reports 
using prescribed DOE formats, at the end of the Federal fiscal year, on 
matters related to the acquisition of energy efficient and 
environmentally and sustainable products and services. This is a 
material delivery under the contract. Failure to perform this 
requirement may be considered a failure that endangers performance of 
this contract and may result in termination for default.
    (h) These provisions shall be flowed down only to first tier 
construction subcontracts exceeding the simplified acquisition threshold 
that support operation of the DOE facility and offer significant 
opportunities for designating energy efficient or environmentally 
sustainable products or services in the materials selection process. The 
subcontractor, if subcontracting opportunities for sustainable and 
environmentally preferable products or services exceed the threshold in 
paragraph (f) of this clause, will comply with the procedures in 
paragraphs (c) through (f) of this clause regarding the collection of 
all data necessary to generate the reports required under paragraphs (c) 
through (f) of this clause, and submit the reports directly to the Prime 
Contractor's Environmental Sustainability Coordinator at the supported 
facility. The subcontractor will advise the contractor if it is unable 
to procure energy efficient and environmentally sustainable items and 
cite which of the reasons in paragraph (c) of this clause apply. The 
reports may be submitted at the conclusion of the subcontract term 
provided that the subcontract delivery term is not multi-year in nature. 
If the delivery term is multi-year, the subcontractor shall report its 
accomplishments for each Federal fiscal year in a manner and at a time 
or times acceptable to both parties. Failure to comply with these 
reporting requirements may be considered a breach of contract with 
attendant consequences.
    (i) When this clause is used in a subcontract, the word 
``Contractor'' will be understood to mean ``Subcontractor.''

                             (End of clause)

[75 FR 57693, Sept. 22, 2010]



Sec. 952.225-70  Subcontracting for nuclear hot cell services.

    As prescribed in 925.7004, insert the following clause in 
solicitations and contracts:

         Subcontracting for Nuclear Hot Cell Services (MAR 1993)

    (a) Definitions. Costs related to the decommissioning of nuclear 
facilities, as used in this clause, means any cost associated with the 
compliance with regulatory requirements governing the decommissioning of 
nuclear facilities licensed by the Nuclear Regulatory Commission. Such 
costs for foreign facilities and for Department of Energy facilities are 
costs of decommissioning associated with the compliance with foreign 
regulatory requirements or the Department's own requirements.
    Costs related to the storage and disposal of nuclear waste, as used 
in this clause, means any costs, whether required by regulation or 
incurred as a matter of prudent business practice, associated with the 
storage or disposal of nuclear waste.
    Foreign company, as used in this clause, means a company which 
offers to perform nuclear hot cell services at a facility which is not 
subject to the laws and regulations of the United States, its agencies, 
and its political subdivisions.
    Nuclear hot cell services, as used in this clause, means services 
related to the examination of, or performance of various operations on, 
nuclear fuel rods, control assemblies, or other components that are 
emitting large quantities of ionizing radiation, after discharge from 
nuclear reactors, which are performed in specialized facilities located 
away from commercial nuclear power plants, generally referred to in the 
industry as ``hot cells.''
    Nuclear waste, as used in this clause, means any radioactive waste 
material subject to regulation by the Nuclear Regulatory Commission or 
the Department of Energy, or in the case of foreign offers, by 
comparable foreign organizations.
    United States company, as used in this clause, means a company which 
offers to perform nuclear hot cell services at a facility subject to the 
laws and regulations of the United States, its agencies, and its 
political subdivisions.
    (b) In selecting a competitive offer for a first-tier subcontract 
acquisition of nuclear hot cell services, the Contractor shall--
    (1) Consider neither costs related to the decommissioning of nuclear 
waste facilities nor costs related to the storage and disposal of 
nuclear waste; or
    (2) Add these costs to offers of foreign companies, if--
    (i) One or more of the offers is submitted by a United States 
company and includes costs related to the decommissioning of nuclear 
facilities and costs related to the storage and disposal of nuclear 
waste because it is subject to such cost; and
    (ii) One or more of the offers is submitted by a foreign company and 
does not include these types of costs. (A foreign company might not be 
subject to such costs or might not have to include these types of cost 
in its offer if the firm is subsidized in decommissioning activity or 
storage and disposal of nuclear waste, or a foreign government is

[[Page 428]]

performing the activities below the actual cost of the activity.)
    (c) Upon determining that no offer from a foreign firm has a 
reasonable chance of being selected for award, the requirements of this 
clause will not apply.

                             (End of clause)

[58 FR 8911, Feb. 18, 1993; 58 FR 39679, July 26, 1993, as amended at 74 
FR 36369, 36370, July 22, 2009; 75 FR 69014, Nov. 10, 2010]



Sec. 952.226-70  Subcontracting goals under section 3021(a) of the 
          Energy Policy Act of 1992.

    As prescribed in 926.7007(a), insert the following provision:

 Subcontracting Goals Under Section 3021(a) of the Energy Policy Act of 
                    1992 (Pub. L. 102-486) (JUN 1996)

    (a) Definition. Energy Policy Act target groups, as used in this 
provision means--
    (1) An institution of higher education that meets the criteria of 34 
CFR 600.4(a) and has a student enrollment that consists of at least 20 
percent--
    (i) Hispanic Americans, i.e., students whose origins are in Mexico, 
Puerto Rico, Cuba, or Central or South America, or any combination 
thereof, or
    (ii) Native Americans, i.e., American Indians, Eskimos, Aleuts, and 
Native Hawaiians, or any combination thereof;
    (2) Institutions of higher learning determined by the Secretary of 
Education to be Historically Black Colleges and Universities pursuant to 
34 CFR 608.2; and
    (3) Small business concerns, as defined under section 3 of the Small 
Business Act (15 U.S.C. 632), that are owned and controlled by 
individuals who are both socially and economically disadvantaged within 
the meaning of section 8(d) of the Small Business Act (15 U.S.C. 637(d)) 
or by a woman or women.
    (b) Section 3021 of the Energy Policy Act (Pub. L. 102-486) 
establishes a goal of award of 10 percent of the contract dollar value 
for prime and subcontract Energy Policy Act awards to Energy Policy Act 
target groups.
    (c) The Offeror, if other than one of the three groups specified in 
paragraph (a) of this clause, shall submit, as part of its business 
management proposal or, if this solicitation requires the submission of 
a Small Business Subcontracting Plan, then as part of that plan, unless 
otherwise stated in the proposal preparation instructions, individual 
subcontracting goals for each of the three Energy Policy Act target 
groups. Individual goals shall be expressed in terms of a percentage of 
the Offeror's proposed contract dollar value. In addition, the Offeror 
shall provide a description of the nature of the effort to be performed 
by each of the three groups, and, if possible, the identity of the 
contemplated subcontractor(s).
    (d) Unless otherwise stated, such goals shall be considered in the 
evaluation of the Business Management Proposal as discussed in Section M 
of this solicitation or, if applicable, as part of the evaluation of the 
Small Business Subcontracting Plan.

                           (End of provision)

[60 FR 22301, May 5, 1995, as amended at 61 FR 21977, May 13, 1996; 61 
FR 30823, June 18, 1996; 75 FR 69014, Nov. 10, 2010]



Sec. 952.226-71  Utilization of Energy Policy Act target entities.

    As prescribed in 926.7007(b), insert the following clause:

       Utilization of Energy Policy Act Target Entities (JUN 1996)

    (a) Definition. Energy Policy Act target groups, as used in this 
provision means--
    (1) An institution of higher education that meets the requirements 
of 34 CFR 600.4(a) and has a student enrollment that consists of at 
least 20 percent--
    (i) Hispanic Americans, i.e., students whose origins are in Mexico, 
Puerto Rico, Cuba, or Central or South America, or any combination 
thereof, or
    (ii) Native Americans, i.e., American Indians, Eskimos, Aleuts, and 
Native Hawaiians, or any combination thereof;
    (2) Institutions of higher learning determined to be Historically 
Black Colleges and Universities by the Secretary of Education pursuant 
to 34 CFR 608.2; and
    (3) Small business concerns, as defined under section 3 of the Small 
Business Act (15 U.S.C. 632), that are owned and controlled by 
individuals who are both socially and economically disadvantaged within 
the meaning of section 8(d) of the Small Business Act (15 U.S.C. 637(d)) 
or by a woman or women.
    (b) Obligation. In addition to its obligations under the clause of 
this contract entitled Utilization of Small Business, Small 
Disadvantaged and Women-Owned Small Business Concerns, the contractor, 
in performance of this contract, agrees to provide its best efforts to 
competitively award subcontracts to entities from among the Energy 
Policy Act target groups.

                             (End of clause)

[60 FR 22301, May 5, 1995, as amended at 61 FR 21977, May 13, 1996; 61 
FR 30823, June 18, 1996; 75 FR 69014, Nov. 10, 2010]

[[Page 429]]



Sec. 952.226-72  Energy Policy Act subcontracting goals and reporting 
          requirements.

    As prescribed in 926.7007(c), insert the following clause:

 Energy Policy Act Subcontracting Goals and Reporting Requirements (JUN 
                                  1996)

    (a) Definition. Energy Policy Act target groups, as used in this 
provision means--
    (1) An institution of higher education that meets the requirements 
of 34 CFR 600.4(a), and has a student enrollment that consists of at 
least 20 percent--
    (i) Hispanic Americans, i.e., students whose origins are in Mexico, 
Puerto Rico, Cuba, or Central or South America, or any combination 
thereof, or
    (ii) Native Americans, i.e., American Indians, Eskimos, Aleuts, and 
Native Hawaiians, or any combination thereof;
    (2) Institutions of higher learning determined to be Historically 
Black Colleges and Universities by the Secretary of Education pursuant 
to 34 CFR 608.2; and
    (3) Small business concerns, as defined under section 3 of the Small 
Business Act (15 U.S.C. 632), that are owned and controlled by 
individuals who are both socially and economically disadvantaged within 
the meaning of section 8(d) of the Small Business Act (15 U.S.C. 637(d)) 
or by a woman or women.
    (b) Goals. The Contractor, in performance of this contract, agrees 
to provide its best efforts to award subcontracts to the following 
classes of entities--
    (1) Small business concerns controlled by socially and economically 
disadvantaged individuals or by women: * * * percent;
    (2) Historically Black colleges and universities: * * * percent; and
    (3) Colleges or universities having a student body in which more 
than 20 percent of the students are Hispanic Americans or Native 
Americans: * * * percent.
    [* * * These goals are stated in a percentage reflecting the 
relationship of estimated award value of subcontracts to the value of 
this contract and appear elsewhere in this contract.]
    (c) Reporting requirements. (1) The Contractor agrees to report, on 
an annual Federal Government fiscal year basis, its progress against the 
goals by providing the actual annual dollar value of subcontract 
payments for the preceding 12-month period, and the relationship of 
those payments to the incurred contract costs for the same period. 
Reports submitted pursuant to this clause must be received by the 
Contracting Officer (or designee) not later than 45 days after the end 
of the reporting period.
    (2) If the contract includes reporting requirements under FAR 
52.219-9, Small Business Subcontracting Plan, the Contractor's progress 
against the goals stated in paragraph (b) of this clause shall be 
included as an addendum to Standard Form (SF) 294, Subcontracting Report 
for Individual Contracts, and/or SF 295, Summary Subcontract Report, as 
applicable, for the period that corresponds to the end of the Federal 
Government fiscal year.

                             (End of clause)

[60 FR 22302, May 5, 1995, as amended at 61 FR 21977, May 13, 1996; 61 
FR 30823, June 18, 1996; 75 FR 69014, Nov. 10, 2010]



Sec. 952.226-73  Energy Policy Act target group certification.

    As prescribed in 926.7007(d), insert the following provision:

         Energy Policy Act Target Group Certification (SEP 1997)

    (a) Certification. The Offeror is:
    (1) ---- An institution of higher education that meets the 
requirements of 34 CFR 600.4(a), and has a student enrollment that 
consists of at least 20 percent--
    (i) Hispanic Americans, i.e., students whose origins are in Mexico, 
Puerto Rico, Cuba, or Central or South America, or any combination 
thereof; or
    (ii) Native Americans, i.e., American Indians, Eskimos, Aleuts, and 
Native Hawaiians, or any combination thereof;
    (2) ---- An institution of higher learning determined to be a 
Historically Black College and University by the Secretary of Education 
pursuant to 34 CFR 608.2; or
    (3) ---- A small business concern, as defined under section 3 of the 
Small Business Act (15 U.S.C. 632), that is owned and controlled by 
individuals who are both socially and economically disadvantaged within 
the meaning of section 8(d) of the Small Business Act (15 U.S.C. 637(d)) 
or by a woman or women.
    (b) By submission of an offer, the Offeror agrees to provide to the 
Contracting Officer, upon request, evidence satisfactory to the 
Contracting Officer that the Offeror is an entity from the Energy Policy 
Act target group identified.

                           (End of provision)

[60 FR 22302, May 5, 1995; 61 FR 30823, June 18, 1996, as amended at 62 
FR 42074, Aug. 5, 1997; 75 FR 69014, Nov. 10, 2010]



Sec. 952.226-74  Displaced employee hiring preference.

    As prescribed in 926.7104, insert the following clause.

[[Page 430]]

             Displaced Employee Hiring Preference (JUN 1997)

    (a) Definition. Eligible employee means a current or former employee 
of a contractor or subcontractor employed at a Department of Energy 
Defense Nuclear Facility (1) whose position of employment has been, or 
will be, involuntarily terminated (except if terminated for cause), (2) 
who has also met the eligibility criteria contained in the Department of 
Energy guidance for contractor work force restructuring, as may be 
amended or supplemented from time to time, and (3) who is qualified for 
a particular job vacancy with the Department or one of its contractors 
with respect to work under its contract with the Department at the time 
the particular position is available.
    (b) Consistent with Department of Energy guidance for contractor 
work force restructuring, as may be amended or supplemented from time to 
time, the Contractor agrees that it will provide a preference in hiring 
to an eligible employee to the extent practicable for work performed 
under this contract.
    (c) The requirements of this clause shall be included in 
subcontracts at any tier (except for subcontracts for commercial items 
pursuant to 41 U.S.C. 403) expected to exceed $500,000.

[62 FR 34862, June 27, 1997, as amended at 75 FR 69014, Nov. 10, 2010]



Sec. 952.227  Provisions and clauses related to patents, technical data 
          and copyrights.



Sec. 952.227-9  Refund of royalties.

    As prescribed in 927.206-2, insert the following clause:

                     Refund of Royalties (MAR 1995)

    (a) The contract price includes certain amounts for royalties 
payable by the Contractor or subcontractors or both, which amounts have 
been reported to the Contracting Officer.
    (b) The term royalties as used in this clause refers to any costs or 
charges in the nature of royalties, license fees, patent or license 
amortization costs, or the like, for the use of or for rights in patents 
and patent applications in connection with performing this contract or 
any subcontract here-under. The term also includes any costs or charges 
associated with the access to, use of, or other right pertaining to data 
that is represented to be proprietary and is related to the performance 
of this contract or the copying of such data or data that is 
copyrighted.
    (c) The Contractor shall furnish to the Contracting Officer, before 
final payment under this contract, a statement of royalties paid or 
required to be paid in connection with performing this contract and 
subcontracts hereunder together with the reasons.
    (d) The Contractor will be compensated for royalties reported under 
paragraph (c) of this clause, only to the extent that such royalties 
were included in the contract price and are determined by the 
Contracting Officer to be properly chargeable to the Government and 
allocable to the contract. To the extent that any royalties that are 
included in the contract price are not, in fact, paid by the Contractor 
or are determined by the Contracting Officer not to be properly 
chargeable to the government and allocable to the contract, the contract 
price shall be reduced. Repayment or credit to the Government shall be 
made as the Contracting Officer directs. The approval by DOE of any 
individual payments or royalties shall not prevent the Government from 
contesting at any time the enforceability, validity, scope of, or title 
to, any patent or the proprietary nature of data pursuant to which a 
royalty or other payment is to be or has been made.
    (e) If, at any time within 3 years after final payment under this 
contract, the Contractor for any reason is relieved in whole or in part 
from the payment of the royalties included in the final contract price 
as adjusted pursuant to paragraph (d) of this clause, the Contractor 
shall promptly notify the Contracting Officer of that fact and shall 
reimburse the Government in a corresponding amount.
    (f) The substance of this clause, including this paragraph (f), 
shall be included in any subcontract in which the amount of royalties 
reported during negotiation of the subcontract exceeds $250.

                             (End of clause)

[60 FR 11817, Mar. 2, 1995]



Sec. 952.227-11  Patent rights--retention by the contractor (short 
          form).

    As prescribed in 927.303(a), insert the following clause:

   Patent Rights--Retention by the Contractor (Short Form) (MAR 1995)

    (a) Definitions--(1) Invention means any invention or discovery 
which is or may be patentable or otherwise protectable under title 35 of 
the United States Code, or any novel variety of plant which is or may be 
protected under the Plant Variety Protection Act (7 U.S.C. 2321, et 
seq.).
    (2) Made when used in relation to any invention means the conception 
of first actual reduction to practice of such invention.
    (3) Nonprofit organization means a university or other institution 
of higher education or an organization of the type described in section 
501(c)(3) of the Internal Revenue Code

[[Page 431]]

of 1954 (26 U.S.C. 501(c)) and exempt from taxation under section 501(a) 
of the Internal Revenue Code (26 U.S.C. 501(a)) or any nonprofit 
scientific or educational organization qualified under a state nonprofit 
organization statute.
    (4) Practical application means to manufacture, in the case of a 
composition or product; to practice, in the case of a process or method; 
or to operate, in the case of a machine or system; and, in each case, 
under such conditions as to establish that the invention is being 
utilized and that its benefits are, to the extent permitted by law or 
Government regulations, available to the public on reasonable terms.
    (5) Small business firm means a small business concern as defined at 
section 2 of Public Law 85-536 (15 U.S.C. 632) and implementing 
regulations of the Administrator of the Small Business Administration. 
For the purpose of this clause, the size standards for small business 
concerns involved in Government procurement and subcontracting at 13 CFR 
121.3-8 and 13 CFR 121.3-12, respectively, will be used.
    (6) Subject invention means any invention of the contractor 
conceived or first actually reduced to practice in the performance of 
work under this contract, provided that in the case of a variety of 
plant, the date of determination (as defined in section 41(d) of the 
Plant Variety Protection Act, 7 U.S.C. 2401(d)) must also occur during 
the period of contract performance.
    (7) Agency licensing regulations and agency regulations concerning 
the licensing of Government-owned inventions mean the Department of 
Energy patent licensing regulations at 10 CFR part 781.
    (b) Allocation of principal rights. The Contractor may retain the 
entire right, title, and interest throughout the world to each subject 
invention subject to the provisions of this clause and 35 U.S.C. 203. 
With respect to any subject invention in which the Contractor retains 
title, the Federal Government shall have a nonexclusive, 
nontransferable, irrevocable, paid-up license to practice or have 
practiced for or on behalf of the United States the subject invention 
throughout the world.
    (c) Invention disclosure, election of title, and filing of patent 
application by Contractor. (1) The Contractor will disclose each subject 
invention to the Department of Energy (DOE) within 2 months after the 
inventor discloses it in writing to Contractor personnel responsible for 
patent matters. The disclosure to DOE shall be in the form of a written 
report and shall identify the contract under which the invention was 
made and the inventor(s). It shall be sufficiently complete in technical 
detail to convey a clear understanding to the extent known at the time 
of the disclosure, of the nature, purpose, operation, and the physical, 
chemical, biological or electrical characteristics of the invention. The 
disclosure shall also identify any publication, on sale or public use of 
the invention and whether a manuscript describing the invention has been 
submitted for publication and, if so, whether it has been accepted for 
publication at the time of disclosure. In addition, after disclosure to 
the DOE, the Contractor will promptly notify that agency of the 
acceptance of any manuscript describing the invention for publication or 
of any on sale or public use planned by the Contractor.
    (2) The Contractor will elect in writing whether or not to retain 
title to any such invention by notifying DOE within 2 years of 
disclosure to DOE. However, in any case where publication, on sale or 
public use has initiated the l-year statutory period wherein valid 
patent protection can still be obtained in the United States, the period 
for election of title may be shortened by DOE to a date that is no more 
than 60 days prior to the end of the statutory period.
    (3) The Contractor will file its initial patent application on a 
subject invention to which it elects to retain title within 1 year after 
election of title or, if earlier, prior to the end of any statutory 
period wherein valid patent protection can be obtained in the United 
States after a publication, on sale, or public use. The Contractor will 
file patent applications in additional countries or international patent 
offices within either 10 months of the corresponding initial patent 
application or 6 months from the date permission is granted by the 
Commissioner of Patents and Trademarks to file foreign patent 
applications where such filing has been prohibited by a Secrecy Order.
    (4) Requests for extension of the time for disclosure, election, and 
filing under subparagraphs (c)(l), (2), and (3) of this clause may, at 
the discretion of the agency, be granted.
    (d) Conditions when the Government may obtain title. The Contractor 
will convey to the Federal agency, upon written request, title to any 
subject invention--
    (1) If the Contractor fails to disclose or elect title to the 
subject invention within the times specified in paragraph (c) of this 
clause, or elects not to retain title; provided, that DOE may only 
request title within 60 days after learning of the failure of the 
Contractor to disclose or elect within the specified times.
    (2) In those countries in which the Contractor fails to file patent 
applications within the times specified in paragraph (c) of this clause; 
provided, however, that if the Contractor has filed a patent application 
in a country after the times specified in paragraph (c) of this clause, 
but prior to its receipt of the written request of the Federal agency, 
the Contractor shall continue to retain title in that country.

[[Page 432]]

    (3) In any country in which the Contractor decides not to continue 
the prosecution of any application for, to pay the maintenance fees on, 
or defend in reexamination or opposition proceeding on, a patent on a 
subject invention.
    (e) Minimum rights to Contractor and protection of the Contractor 
right to file. (1) The Contractor will retain a nonexclusive royalty-
free license throughout the world in each subject invention to which the 
Government obtains title, except if the Contractor fails to disclose the 
invention within the times specified in paragraph (c) of this clause. 
The Contractor's license extends to its domestic subsidiary 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 the Federal agency, except when transferred to the 
successor of that part of the Contractor's business to which the 
invention pertains.
    (2) The Contractor's domestic license may be revoked or modified by 
DOE to the extent necessary to achieve expeditious practical application 
of subject invention pursuant to an application for an exclusive license 
submitted in accordance with applicable provisions at 37 CFR part 404 
and agency licensing regulations. This license will not be revoked in 
that field of use or the geographical areas in which the Contractor has 
achieved practical application and continues to make the benefits of the 
invention reasonably accessible to the public. The license in any 
foreign country may be revoked or modified at the discretion of DOE to 
the extent the Contractor, its licensees, or the domestic subsidiaries 
or affiliates have failed to achieve practical application in that 
foreign country.
    (3) Before revocation or modification of the license, DOE will 
furnish the Contractor a written notice of its intention to revoke or 
modify the license, and the Contractor will be allowed 30 days (or such 
other time as may be authorized by DOE for good cause shown by the 
Contractor) after the notice to show cause why the license should not be 
revoked or modified. The Contractor has the right to appeal, in 
accordance with applicable regulations in 37 CFR part 404 and agency 
regulations concerning the licensing of Government owned inventions, any 
decision concerning the revocation or modification of the license.
    (f) Contractor action to protect the Government's interest. (1) The 
Contractor agrees to execute or to have executed and promptly deliver to 
DOE all instruments necessary to (i) establish or confirm the rights the 
Government has throughout the world in those subject inventions to which 
the Contractor elects to retain title, and (ii) convey title to DOE when 
requested under paragraph (d) of this clause and to enable the 
government to obtain patent protection throughout the world in that 
subject invention.
    (2) The Contractor agrees to require, by written agreement, its 
employees, other than clerical and nontechnical employees, to disclose 
promptly in writing to personnel identified as responsible for the 
administration of patent matters and in a format suggested by the 
Contractor each subject invention made under contract in order that the 
Contractor can comply with the disclosure provisions of paragraph (c) of 
this clause, and to execute all papers necessary to file patent 
applications on subject inventions and to establish the Government's 
rights in the subject inventions. This disclosure format should require, 
as a minimum, the information required by subparagraph (c)(1) of this 
clause. The Contractor shall instruct such employees, through employee 
agreements or other suitable educational programs, on the importance of 
reporting inventions in sufficient time to permit the filing of patent 
applications prior to U.S. or foreign statutory bars.
    (3) The Contractor will notify DOE of any decision not to continue 
the prosecution of a patent application, pay maintenance fees, or defend 
in a reexamination or opposition proceeding on a patent, in any country, 
not less than 30 days before the expiration of the response period 
required by the relevant patent office.
    (4) The Contractor agrees to include, within the specification of 
any United States patent application and any patent issuing thereon 
covering a subject invention, the following statement, ``This invention 
was made with Government support under (identify the contract) awarded 
by the United States Department of Energy. The Government has certain 
rights in the invention.''
    (g) Subcontracts. (1) The Contractor will include this clause, 
suitably modified to identify the parties, in all subcontracts, 
regardless of tier, for experimental, developmental, or research work to 
be performed by a small business firm or domestic nonprofit 
organization. The subcontractor will retain all rights provided for the 
Contractor in this clause, and the Contractor will not, as part of the 
consideration for awarding the subcontract, obtain rights in the 
subcontractor's subject inventions.
    (2) The contractor shall include in all other subcontracts, 
regardless of tier, for experimental, developmental, demonstration, or 
research work the patent rights clause at 952.227-13.
    (3) In the case of subcontracts, at any tier, DOE, subcontractor, 
and the Contractor agree that the mutual obligations of the parties 
created by this clause constitute a contract between the subcontractor 
and DOE

[[Page 433]]

with respect to the matters covered by the clause; provided, however, 
that nothing in this paragraph is intended to confer any jurisdiction 
under the Contract Disputes Act in connection with proceedings under 
paragraph (j) of this clause.
    (h) Reporting on utilization of subject inventions. The Contractor 
agrees to submit, on request, periodic reports no more frequently than 
annually on the utilization of a subject invention or on efforts at 
obtaining such utilization that are being made by the Contractor or its 
licensees or assignees. Such reports shall include information regarding 
the status of development, date of first commercial sale or use, gross 
royalties received, by the Contractor, and such other data and 
information as DOE may reasonably specify. The Contractor also agrees to 
provide additional reports as may be requested by DOE in connection with 
any march-in proceeding undertaken by that agency in accordance with 
paragraph (j) of this clause. As required by 35 U.S.C. 202(c)(5), DOE 
agrees it will not disclose such information to persons outside the 
Government without permission of the Contractor.
    (i) Preference for United States industry. Notwithstanding any other 
provision of this clause, the Contractor agrees that neither it nor any 
assignee will grant to any person the exclusive right to use or sell any 
subject invention in the United States unless such person agrees that 
any product embodying the subject invention or produced through the use 
of the subject invention will be manufactured substantially in the 
United States. However, in individual cases, the requirement for such an 
agreement may be waived by DOE upon a showing by the Contractor or its 
assignee that reasonable but unsuccessful efforts have been made to 
grant licenses on similar terms to potential licensees that would be 
likely to manufacture substantially in the United States or that under 
the circumstances domestic manufacture is not commercially feasible.
    (j) March-in rights. The Contractor agrees that, with respect to any 
subject invention in which it has acquired title, DOE has the right in 
accordance with the procedures in 37 CFR 401.6 and any supplemental 
regulations of the agency to require the Contractor, an assignee or 
exclusive licensee of a subject invention to grant a nonexclusive, 
partially exclusive, or exclusive license in any field of use to a 
responsible applicant or applicants, upon terms that are reasonable 
under the circumstances, and, if the Contractor, assignee, or exclusive 
licensee refuses such a request, DOE has the right to grant such a 
license itself if DOE determines that--
    (1) Such action is necessary because the Contractor or assignee has 
not taken, or is not expected to take within a reasonable time, 
effective steps to achieve practical application of the subject 
invention in such field of use;
    (2) Such action is necessary to alleviate health or safety needs 
which are not reasonably satisfied by the Contractor, assignee, or their 
licensees;
    (3) Such action is necessary to meet requirements for public use 
specified by Federal regulations and such requirements are not 
reasonably satisfied by the Contractor, assignee, or licensees; or
    (4) Such action is necessary because the agreement required by 
paragraph (i) of this clause has not been obtained or waived or because 
a licensee of the exclusive right to use or sell any subject invention 
in the United States is in breach of such agreement.
    (k) Special provisions for contracts with nonprofit organizations. 
If the Contractor is a nonprofit organization, it agrees that--
    (1) Rights to a subject invention in the United States may not be 
assigned without the approval of the Federal agency, except where such 
assignment is made to an organization which has as one of its primary 
functions the management of inventions; provided, that such assignee 
will be subject to the same provisions as the Contractor;
    (2) The Contractor will share royalties collected on a subject 
invention with the inventor, including Federal employee co-inventors 
(when DOE deems it appropriate) when the subject invention is assigned 
in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;
    (3) The balance of any royalties or income earned by the Contractor 
with respect to subject inventions, after payment of expenses (including 
payments to inventors) incidental to the administration of subject 
inventions will be utilized for the support of scientific research or 
education; and
    (4) It will make efforts that are reasonable under the circumstances 
to attract licensees of subject inventions that are small business 
firms, and that it will give a preference to a small business firm when 
licensing a subject invention if the Contractor determines that the 
small business firm has a plan or proposal for marketing the invention 
which, if executed, is equally as likely to bring the invention to 
practical application as any plans or proposals from applicants that are 
not small business firms; provided, that the Contractor is also 
satisfied that the small business firm has the capability and resources 
to carry out its plan or proposal. The decision whether to give a 
preference in any specific case will be at the discretion of the 
contractor. However, the Contractor agrees that the Secretary of 
Commerce may review the Contractor's licensing program and decisions 
regarding small business applicants, and the Contractor will negotiate 
changes to its licensing policies, procedures, or practices with the 
Secretary of Commerce when that Secretary's review discloses that the 
Contractor could take reasonable steps to more

[[Page 434]]

effectively implement the requirements of this subparagraph (k)(4).
    (l) Communications. (1) The contractor shall direct any 
notification, disclosure, or request to DOE provided for in this clause 
to the DOE patent counsel assisting the DOE contracting activity, with a 
copy of the communication to the Contracting Officer.
    (2) Each exercise of discretion or decision provided for in this 
clause, except subparagraph (k)(4), is reserved for the DOE Patent 
Counsel and is not a claim or dispute and is not subject to the Contract 
Disputes Act of 1978.
    (3) Upon request of the DOE Patent Counsel or the contracting 
officer, the contractor shall provide any or all of the following:
    (i) A copy of the patent application, filing date, serial number and 
title, patent number, and issue date for any subject invention in any 
country in which the contractor has applied for a patent;
    (ii) A report, not more often than annually, summarizing all subject 
inventions which were disclosed to DOE individually during the reporting 
period specified; or
    (iii) A report, prior to closeout of the contract, listing all 
subject inventions or stating that there were none.

                             (End of clause)

[60 FR 11817, Mar. 2, 1995]



Sec. 952.227-13  Patent rights--acquisition by the Government.

    As prescribed at 927.303(a)(1), insert the following clause:

         Patent Rights--Acquisition by the Government (SEP 1997)

    (a) Definitions.
    Invention, as used in this clause, means any invention or discovery 
which is or may be patentable or otherwise protectable under title 35 of 
the United States Code or any novel variety of plant that is or may be 
protectable under the Plant Variety Protection Act (7 U.S.C. 2321, et 
seq.).
    Practical application, as used in this clause, means to manufacture, 
in the case of a composition or product; to practice, in the case of a 
process or method; or to operate, in the case of a machine or system; 
and, in each case, under such conditions as to establish that the 
invention is being utilized and that its benefits are, to the extent 
permitted by law or Government regulations, available to the public on 
reasonable terms.
    Subject invention, as used in this clause, means any invention of 
the Contractor conceived or first actually reduced to practice in the 
course of or under this contract.
    Patent Counsel, as used in this clause, means the Department of 
Energy Patent Counsel assisting the procuring activity.
    DOE patent waiver regulations, as used in this clause, means the 
Department of Energy patent waiver regulations in effect on the date of 
award of this contract. See 10 CFR part 784.
    Agency licensing regulations and applicable agency licensing 
regulations, as used in this clause, mean the Department of Energy 
patent licensing regulations at 10 CFR part 781.
    (b) Allocations of principal rights--(1) Assignment to the 
Government. The Contractor agrees to assign to the Government the entire 
right, title, and interest throughout the world in and to each subject 
invention, except to the extent that rights are retained by the 
Contractor under subparagraph (b)(2) and paragraph (d) of this clause.
    (2) Greater rights determinations. (i) The Contractor, or an 
employee-inventor after consultation with the Contractor, may request 
greater rights than the nonexclusive license and the foreign patent 
rights provided in paragraph (d) of this clause on identified inventions 
in accordance with the DOE patent waiver regulations. A request for a 
determination of whether the Contractor or the employee-inventor is 
entitled to acquire such greater rights must be submitted to the Patent 
Counsel with a copy to the Contracting Officer at the time of the first 
disclosure of the invention pursuant to subparagraph (e)(2) of this 
clause, or not later than 8 months thereafter, unless a longer period is 
authorized in writing by the Contracting Officer for good cause shown in 
writing by the Contractor. Each determination of greater rights under 
this contract shall be subject to paragraph (c) of this clause, unless 
otherwise provided in the greater rights determination, and to the 
reservations and conditions deemed to be appropriate by the Secretary of 
Energy or designee.
    (ii) Within two (2) months after the filing of a patent application, 
the Contractor shall provide the filing date, serial number and title, a 
copy of the patent application (including an English-language version if 
filed in a language other than English), and, promptly upon issuance of 
a patent, provide the patent number and issue date for any subject 
invention in any country for which the Contractor has been granted title 
or the right to file and prosecute on behalf of the United States by the 
Department of Energy.
    (iii) Not less than thirty (30) days before the expiration of the 
response period for any action required by the Patent and Trademark 
Office, notify the Patent Counsel of any decision not to continue 
prosecution of the application.
    (iv) Upon request, the Contractor shall furnish the Government an 
irrevocable power to inspect and make copies of the patent application 
file.
    (c) Minimum rights acquired by the Government. (1) With respect to 
each subject invention to which the Department of Energy

[[Page 435]]

grants the Contractor principal or exclusive rights, the Contractor 
agrees as follows:
    (i) The Contractor hereby grants to the Government a nonexclusive, 
nontransferable, irrevocable, paid-up license to practice or have 
practiced each subject invention throughout the world by or on behalf of 
the Government of the United States (including any Government agency).
    (ii) The Contractor agrees that with respect to any subject 
invention in which DOE has granted it title, DOE has the right in 
accordance with the procedures in the DOE patent waiver regulations (10 
CFR part 784) to require the Contractor, an assignee, or exclusive 
licensee of a subject invention to grant a nonexclusive, partially 
exclusive, or exclusive license in any field of use to a responsible 
applicant or applicants, upon terms that are reasonable under the 
circumstances, and if the Contractor, assignee, or exclusive licensee 
refuses such a request, DOE has the right to grant such a license itself 
if it determines that--
    (A) Such action is necessary because the Contractor or assignee has 
not taken, or is not expected to take within a reasonable time, 
effective steps to achieve practical application of the subject 
invention in such field of use;
    (B) Such action is necessary to alleviate health or safety needs 
which are not reasonably satisfied by the Contractor, assignee, or their 
licensees;
    (C) Such action is necessary to meet requirements for public use 
specified by Federal regulations and such requirements are not 
reasonably satisfied by the Contractor, assignee, or licensees; or
    (D) Such action is necessary because the agreement required by 
paragraph (i) of this clause has neither been obtained nor waived or 
because a licensee of the exclusive right to use or sell any subject 
invention in the United States is in breach of such agreement.
    (iii) The Contractor agrees to submit on request periodic reports no 
more frequently than annually on the utilization of a subject invention 
or on efforts at obtaining such utilization of a subject invention or on 
efforts at obtaining such utilization that are being made by the 
Contractor or its licensees or assignees. Such reports shall include 
information regarding the status of development, date of first 
commercial sale or use, gross royalties received by the Contractor, and 
such other data and information as DOE may reasonably specify. The 
Contractor also agrees to provide additional reports as may be requested 
by DOE in connection with any march-in proceedings undertaken by that 
agency in accordance with subparagraph (c)(1)(ii) of this clause. To the 
extent data or information supplied under this section is considered by 
the Contractor, its licensee, or assignee to be privileged and 
confidential and is so marked, the Department of Energy agrees that, to 
the extent permitted by law, it will not disclose such information to 
persons outside the Government.
    (iv) The Contractor agrees, when licensing a subject invention, to 
arrange to avoid royalty charges on acquisitions involving Government 
funds, including funds derived through a Military Assistance Program of 
the Government or otherwise derived through the Government, to refund 
any amounts received as royalty charges on a subject invention in 
acquisitions for, or on behalf of, the Government, and to provide for 
such refund in any instrument transferring rights in the invention to 
any party.
    (v) The Contractor agrees to provide for the Government's paid-up 
license pursuant to subparagraph (c)(1)(i) of this clause in any 
instrument transferring rights in a subject invention and to provide for 
the granting of licenses as required by subparagraph (c)(1)(ii) of this 
clause, and for the reporting of utilization information as required by 
subparagraph (c)(1)(iii) of this clause, whenever the instrument 
transfers principal or exclusive rights in a subject invention.
    (2) Nothing contained in this paragraph (c) shall be deemed to grant 
to the Government any rights with respect to any invention other than a 
subject invention.
    (d) Minimum rights to the Contractor. (1) The Contractor is hereby 
granted a revocable, nonexclusive, royalty-free license in each patent 
application filed in any country on a subject invention and any 
resulting patent in which the Government obtains title, unless the 
Contractor fails to disclose the subject invention within the times 
specified in subparagraph (e)(2) of this clause. The Contractor's 
license extends to its domestic subsidiaries and affiliates, if any, 
within the corporate structure of which the Contractor is a part and 
includes the right to grant sublicenses of the same scope to the extent 
the Contractor was legally obligated to do so at the time the contract 
was awarded. The license is transferable only with the approval of DOE 
except when transferred to the successor of that part of the 
Contractor's business to which the invention pertains.
    (2) The Contractor's domestic license may be revoked or modified by 
DOE to the extent necessary to achieve expeditious practical application 
of the subject invention pursuant to an application for an exclusive 
license submitted in accordance with applicable provisions in 37 CFR 
part 404 and agency licensing regulations. This license will not be 
revoked in that field of use or the geographical areas in which the 
Contractor has achieved practical applications and continues to make the 
benefits of the invention reasonably accessible to the public. The 
license in any foreign country may be revoked or modified at

[[Page 436]]

the discretion of DOE to the extent the Contractor, its licensees, or 
its domestic subsidiaries or affiliates have failed to achieve practical 
application in that foreign country.
    (3) Before revocation or modification of the license, DOE will 
furnish the Contractor a written notice of its intention to revoke or 
modify the license, and the Contractor will be allowed 30 days (or such 
other time as may be authorized by DOE for good cause shown by the 
Contractor) after the notice to show cause why the license should not be 
revoked or modified. The Contractor has the right to appeal, in 
accordance with applicable agency licensing regulations and 37 CFR part 
404 concerning the licensing of Government-owned inventions, any 
decision concerning the revocation or modification of its license.
    (4) The Contractor may request the right to acquire patent rights to 
a subject invention in any foreign country where the Government has 
elected not to secure such rights, subject to the conditions in 
subparagraphs (d)(4)(i) through (d)(4)(vii) of this clause. Such request 
must be made in writing to the Patent Counsel as part of the disclosure 
required by subparagraph (e)(2) of this clause, with a copy to the DOE 
Contracting Officer. DOE approval, if given, will be based on a 
determination that this would best serve the national interest.
    (i) The recipient of such rights, when specifically requested by 
DOE, and three years after issuance of a foreign patent disclosing the 
subject invention, shall furnish DOE a report stating:
    (A) The commercial use that is being made, or is intended to be 
made, of said invention, and
    (B) The steps taken to bring the invention to the point of practical 
application or to make the invention available for licensing.
    (ii) The Government shall retain at least an irrevocable, 
nonexclusive, paid-up license to make, use, and sell the invention 
throughout the world by or on behalf of the Government (including any 
Government agency) and States and domestic municipal governments, unless 
the Secretary of Energy or designee determines that it would not be in 
the public interest to acquire the license for the States and domestic 
municipal governments.
    (iii) If noted elsewhere in this contract as a condition of the 
grant of an advance waiver of the Government's title to inventions under 
this contract, or, if no advance waiver was granted but a waiver of the 
Government's title to an identified invention is granted pursuant to 
subparagraph (b)(2) of this clause upon a determination by the Secretary 
of Energy that it is in the Government's best interest, this license 
shall include the right of the Government to sublicense foreign 
governments pursuant to any existing or future treaty or agreement with 
such foreign governments.
    (iv) Subject to the rights granted in subparagraphs (d)(1), (2), and 
(3) of this clause, the Secretary of Energy or designee shall have the 
right to terminate the foreign patent rights granted in this 
subparagraph (d)(4) in whole or in part unless the recipient of such 
rights demonstrates to the satisfaction of the Secretary of Energy or 
designee that effective steps necessary to accomplish substantial 
utilization of the invention have been taken or within a reasonable time 
will be taken.
    (v) Subject to the rights granted in subparagraphs (d)(1), (2), and 
(3) of this clause, the Secretary of Energy or designee shall have the 
right, commencing four years after foreign patent rights are accorded 
under this subparagraph (d)(4), to require the granting of a 
nonexclusive or partially exclusive license to a responsible applicant 
or applicants, upon terms reasonable under the circumstances, and in 
appropriate circumstances to terminate said foreign patent rights in 
whole or in part, following a hearing upon notice thereof to the public, 
upon a petition by an interested person justifying such hearing:
    (A) If the Secretary of Energy or designee determines, upon review 
of such material as he deems relevant, and after the recipient of such 
rights or other interested person has had the opportunity to provide 
such relevant and material information as the Secretary or designee may 
require, that such foreign patent rights have tended substantially to 
lessen competition or to result in undue market concentration in any 
section of the United States in any line of commerce to which the 
technology relates; or
    (B) Unless the recipient of such rights demonstrates to the 
satisfaction of the Secretary of Energy or designee at such hearing that 
the recipient has taken effective steps, or within a reasonable time 
thereafter is expected to take such steps, necessary to accomplish 
substantial utilization of the invention.
    (vi) If the contractor is to file a foreign patent application on a 
subject invention, the Government agrees, upon written request, to use 
its best efforts to withhold publication of such invention disclosures 
for such period of time as specified by Patent Counsel, but in no event 
shall the Government or its employees be liable for any publication 
thereof.
    (vii) Subject to the license specified in subparagraphs (d) (1), 
(2), and (3) of this clause, the contractor or inventor agrees to convey 
to the Government, upon request, the entire right, title, and interest 
in any foreign country in which the contractor or inventor fails to have 
a patent application filed in a timely manner or decides not to continue 
prosecution or to pay any maintenance fees covering

[[Page 437]]

the invention. To avoid forfeiture of the patent application or patent, 
the contractor or inventor shall, not less than 60 days before the 
expiration period for any action required by any patent office, notify 
the Patent Counsel of such failure or decision, and deliver to the 
Patent Counsel, the executed instruments necessary for the conveyance 
specified in this paragraph.
    (e) Invention identification, disclosures, and reports. (1) The 
Contractor shall establish and maintain active and effective procedures 
to assure that subject inventions are promptly identified and disclosed 
to Contractor personnel responsible for patent matters within 6 months 
of conception and/or first actual reduction to practice, whichever 
occurs first in the performance of work under this contract. These 
procedures shall include the maintenance of laboratory notebooks or 
equivalent records and other records as are reasonably necessary to 
document the conception and/or the first actual reduction to practice of 
subject inventions, and records that show that the procedures for 
identifying and disclosing the inventions are followed. Upon request, 
the Contractor shall furnish the Contracting Officer a description of 
such procedures for evaluation and for determination as to their 
effectiveness.
    (2) The Contractor shall disclose each subject invention to the DOE 
Patent Counsel with a copy to the Contracting Officer within 2 months 
after the inventor discloses it in writing to Contractor personnel 
responsible for patent matters or, if earlier, within 6 months after the 
Contractor becomes aware that a subject invention has been made, but in 
any event before any on sale, public use, or publication of such 
invention known to the Contractor. The disclosure to DOE shall be in the 
form of a written report and shall identify the contract under which the 
invention was made and the inventor(s). It shall be sufficiently 
complete in technical detail to convey a clear understanding, to the 
extent known at the time of the disclosure, of the nature, purpose, 
operation, and physical, chemical, biological, or electrical 
characteristics of the invention. The disclosure shall also identify any 
publication, on sale, or public use of the invention and whether a 
manuscript describing the invention has been submitted for publication 
and, if so, whether it has been accepted for publication at the time of 
disclosure. In addition, after disclosure to DOE, the Contractor shall 
promptly notify Patent Counsel of the acceptance of any manuscript 
describing the invention for publication or of any on sale or public use 
planned by the Contractor. The report should also include any request 
for a greater rights determination in accordance with subparagraph 
(b)(2) of this clause. When an invention is disclosed to DOE under this 
paragraph, it shall be deemed to have been made in the manner specified 
in Sections (a)(1) and (a)(2) of 42 U.S.C. 5908, unless the Contractor 
contends in writing at the time the invention is disclosed that is was 
not so made.
    (3) The Contractor shall furnish the Contracting Officer the 
following:
    (i) Interim reports every 12 months (or such longer period as may be 
specified by the Contracting Officer) from the date of the contract, 
listing all subject inventions during that period, and including a 
statment that all subject inventions have been disclosed (or that there 
are not such inventions), and that such disclosure has been made in 
accordance with the procedures required by paragraph (e)(1) of this 
clause.
    (ii) A final report, within 3 months after completion of the 
contracted work listing all subject inventions or containing a statement 
that there were no such inventions, and listing all subcontracts at any 
tier containing a patent right clause or containing a statement that 
there were no such subcontracts.
    (4) The Contractor agrees to require, by written agreement, its 
employees, other than clerical and nontechnical employees, to disclose 
promptly in writing to personnel identified as responsible for the 
administration of patent matters and in a format suggested by the 
Contractor each subject invention made under contract in order that the 
Contractor can comply with the disclosure provisions of paragraph (c) of 
this clause, and to execute all papers necessary to file patent 
applications on subject inventions and to establish the Government's 
rights in the subject inventions. This disclosure format should require, 
as a minimum, the information required by subparagraph (e)(2) of this 
clause.
    (5) The Contractor agrees, subject to FAR 27.302(j), that the 
Government may duplicate and disclose subject invention disclosures and 
all other reports and papers furnished or required to be furnished 
pursuant to this clause.
    (f) Examination of records relating to inventions. (1) The 
Contracting Officer or any authorized representative shall, until 3 
years after final payment under this contract, have the right to examine 
any books (including laboratory notebooks), records, and documents of 
the Contractor relating to the conception or first actual reduction to 
practice of inventions in the same field of technology as the work under 
this contract to determine whether--
    (i) Any such inventions are subject inventions;
    (ii) The Contractor has established and maintains the procedures 
required by subparagraphs (e) (1) and (4) of this clause;
    (iii) The Contractor and its inventors have complied with the 
procedures.
    (2) If the Contracting Officer learns of an unreported Contractor 
invention which the

[[Page 438]]

Contracting Officer believes may be a subject invention, the Contractor 
may be required to disclose the invention to DOE for a determination of 
ownership rights.
    (3) Any examination of records under this paragraph will be subject 
to appropriate conditions to protect the confidentiality of the 
information involved.
    (g) Withholding of payment (This paragraph does not apply to 
subcontracts).
    (1) Any time before final payment under this contract, the 
Contracting Officer may, in the Government's interest, withhold payment 
until a reserve not exceeding $50,000 or 5 percent of the amount of this 
contract, whichever is less, shall have been set aside if, in the 
Contracting Officer's opinion, the Contractor fails to--
    (i) Convey to the Government, using a DOE-approved form, the title 
and/or rights of the Government in each subject invention as required by 
this clause.
    (ii) Establish, maintain, and follow effective procedures for 
identifying and disclosing subject inventions pursuant to subparagraph 
(e)(1) of this clause;
    (iii) Disclose any subject invention pursuant to subparagraph (e)(2) 
of this clause;
    (iv) Deliver acceptable interim reports pursuant to subparagraph 
(e)(3)(i) of this clause; or
    (v) Provide the information regarding subcontracts pursuant to 
subparagraph (h)(4) of this clause.
    (2) Such reserve or balance shall be withheld until the Contracting 
Officer has determined that the Contractor has rectified whatever 
deficiencies exist and has delivered all reports, disclosures, and other 
information required by this clause.
    (3) Final payment under this contract shall not be made before the 
Contractor delivers to the Contracting Officer all disclosures of 
subject inventions required by subparagraph (e)(2) of this clause, and 
acceptable final report pursuant to subparagraph (e)(3)(ii) of this 
clause, and the Patent Counsel has issued a patent clearance 
certification to the Contracting Officer.
    (4) The Contracting Officer may decrease or increase the sums 
withheld up to the maximum authorized above. No amount shall be withheld 
under this paragraph while the amount specified by this paragraph is 
being withheld under other provisions of the contract. The withholding 
of any amount or the subsequent payment thereof shall not be construed 
as a waiver of any Government rights.
    (h) Subcontracts. (1) The contractor shall include the clause at 48 
CFR 952.227-11 (suitably modified to identify the parties) in all 
subcontracts, regardless of tier, for experimental, developmental, 
demonstration, or research work to be performed by a small business firm 
or domestic nonprofit organization, except where the work of the 
subcontract is subject to an Exceptional Circumstances Determination by 
DOE. In all other subcontracts, regardless of tier, for experimental, 
developmental, demonstration, or research work, the contractor shall 
include this clause (suitably modified to identify the parties). The 
contractor shall not, as part of the consideration for awarding the 
subcontract, obtain rights in the subcontractor's subject inventions.
    (2) In the event of a refusal by a prospective subcontractor to 
accept such a clause the Contractor--
    (i) Shall promptly submit a written notice to the Contracting 
Officer setting forth the subcontractor's reasons for such refusal and 
other pertinent information that may expedite disposition of the matter; 
and
    (ii) Shall not proceed with such subcontract without the written 
authorization of the Contracting Officer.
    (3) In the case of subcontracts at any tier, DOE, the subcontractor, 
and Contractor agree that the mutual obligations of the parties created 
by this clause constitute a contract between the subcontractor and DOE 
with respect to those matters covered by this clause.
    (4) The Contractor shall promptly notify the Contracting Officer in 
writing upon the award of any subcontract at any tier containing a 
patent rights clause by identifying the subcontractor, the applicable 
patent rights clause, the work to be performed under the subcontract, 
and the dates of award and estimated completion. Upon request of the 
Contracting Officer, the Contractor shall furnish a copy of such 
subcontract, and, no more frequently than annually, a listing of the 
subcontracts that have been awarded.
    (5) The contractor shall identify all subject inventions of the 
subcontractor of which it acquires knowledge in the performance of this 
contract and shall notify the Patent Counsel, with a copy to the 
contracting officer, promptly upon identification of the inventions.
    (i) Preference United States industry. Unless provided otherwise, no 
Contractor that receives title to any subject invention and no assignee 
of any such Contractor shall grant to any person the exclusive right to 
use or sell any subject invention in the United States unless such 
person agrees that any products embodying the subject invention will be 
manufactured substantially in the United States. However, in individual 
cases, the requirement may be waived by the Government upon a showing by 
the Contractor or assignee that reasonable but unsuccessful efforts have 
been made to grant licenses on similar terms to potential licensees that 
would be likely to manufacture substantially in the United States or 
that under the circumstances domestic manufacture is not commercially 
feasible.

[[Page 439]]

    (j) Atomic energy. (1) No claim for pecuniary award of compensation 
under the provisions of the Atomic Energy Act of 1954, as amended, shall 
be asserted with respect to any invention or discovery made or conceived 
in the course of or under this contract.
    (2) Except as otherwise authorized in writing by the Contracting 
Officer, the Contractor will obtain patent agreements to effectuate the 
provisions of subparagraph (e)(1) of this clause from all persons who 
perform any part of the work under this contract, except nontechnical 
personnel, such as clerical employees and manual laborers.
    (k) Background patents. (1) Background Patent means a domestic 
patent covering an invention or discovery which is not a subject 
invention and which is owned or controlled by the Contractor at any time 
through the completion of this contract:
    (i) Which the contractor, but not the Government, has the right to 
license to others without obligation to pay royalties thereon, and
    (ii) Infringement of which cannot reasonably be avoided upon the 
practice of any specific process, method, machine, manufacture, or 
composition of matter (including relatively minor modifications thereof) 
which is a subject of the research, development, or demonstration work 
performed under this contract.
    (2) The Contractor agrees to and does hereby grant to the Government 
a royalty-free, nonexclusive license under any background patent for 
purposes of practicing a subject of this contract by or for the 
Government in research, development, and demonstration work only.
    (3) The Contractor also agrees that upon written application by DOE, 
it will grant to responsible parties, for purposes of practicing a 
subject of this contract, nonexclusive licenses under any background 
patent on terms that are reasonable under the circumstances. If, 
however, the Contractor believes that exclusive rights are necessary to 
achieve expeditious commercial development or utilization, then a 
request may be made to DOE for DOE approval of such licensing by the 
Contractor.
    (4) Notwithstanding subparagraph (k)(3) of this clause, the 
contractor shall not be obligated to license any background patent if 
the Contractor demonstrates to the satisfaction of the Secretary of 
Energy or designee that:
    (i) A competitive alternative to the subject matter covered by said 
background patent is commercially available or readily introducible from 
one or more other sources; or
    (ii) The Contractor or its licensees are supplying the subject 
matter covered by said background patent in sufficient quantity and at 
reasonable prices to satisfy market needs, or have taken effective steps 
or within a reasonable time are expected to take effective steps to so 
supply the subject matter.
    (l) Publication. It is recognized that during the course of the work 
under this contract, the Contractor or its employees may from time to 
time desire to release or publish information regarding scientific or 
technical developments conceived or first actually reduced to practice 
in the course of or under this contract. In order that public disclosure 
of such information will not adversely affect the patent interests of 
DOE or the Contractor, patent approval for release of publication shall 
be secured from Patent Counsel prior to any such release or publication.
    (m) Forfeiture of rights in unreported subject inventions. (1) The 
Contractor shall forfeit and assign to the Government, at the request of 
the Secretary of Energy or designee, all rights in any subject invention 
which the Contractor fails to report to Patent Counsel within six months 
after the time the Contractor:
    (i) Files or causes to be filed a United States or foreign patent 
application thereon; or
    (ii) Submits the final report required by subparagraph (e)(2)(ii) of 
this clause, whichever is later.
    (2) However, the Contractor shall not forfeit rights in a subject 
invention if, within the time specified in subparagraph (m)(1) of this 
clause, the Contractor:
    (i) Prepares a written decision based upon a review of the record 
that the invention was neither conceived nor first actually reduced to 
practice in the course of or under the contract and delivers the 
decision to Patent Counsel, with a copy to the Contracting Officer; or
    (ii) Contending that the invention is not a subject invention, the 
Contractor nevertheless discloses the invention and all facts pertinent 
to this contention to the Patent Counsel, with a copy to the Contracting 
Officer; or
    (iii) Establishes that the failure to disclose did not result from 
the Contractor's fault or negligence.
    (3) Pending written assignment of the patent application and patents 
on a subject invention determined by the Secretary of Energy or designee 
to be forfeited (such determination to be a final decision under the 
Disputes clause of this contract), the Contractor shall be deemed to 
hold the invention and the patent applications and patents pertaining 
thereto in trust for the Government. The forfeiture provision of this 
paragraph (m) shall be in addition to and shall not supersede other 
rights and remedies which the Government may have with respect to 
subject inventions.

[[Page 440]]

                             (End of clause)

[60 FR 11819, Mar. 2, 1995, as amended at 62 FR 42075, Aug. 5, 1997; 63 
FR 10507, Mar. 4, 1998; 67 FR 14872, Mar. 28, 2002]



Sec. 952.227-14  Rights in data-general. (DOE coverage--alternates VI 
          and VII)

    Alternate VI (FEB 1998) As prescribed at 48 CFR 927.404(l) insert 
Alternate VI to require the contractor to license data regarded as 
limited rights data or restricted computer software to the Government 
and third parties at reasonable royalties upon request by the Department 
of Energy.

    (k) Contractor licensing. Except as may be otherwise specified in 
this contract as data not subject to this paragraph, the contractor 
agrees that upon written application by DOE, it will grant to the 
Government and responsible third parties, for purposes of practicing a 
subject of this contract, a nonexclusive license in any limited rights 
data or restricted computer software on terms and conditions reasonable 
under the circumstances including appropriate provisions for 
confidentiality; provided, however, the contractor shall not be obliged 
to license any such data if the contractor demonstrates to the 
satisfaction of the Secretary of Energy or designee that:
    (1) Such data are not essential to the manufacture or practice of 
hardware designed or fabricated, or processes developed, under this 
contract;
    (2) Such data, in the form of results obtained by their use, have a 
commercially competitive alternate available or readily introducible 
from one or more other sources;
    (3) Such data, in the form of results obtained by their use, are 
being supplied by the contractor or its licensees in sufficient quantity 
and at reasonable prices to satisfy market needs, or the contractor or 
its licensees have taken effective steps or within a reasonable time are 
expected to take effective steps to so supply such data in the form of 
results obtained by their use; or
    (4) Such data, in the form of results obtained by their use, can be 
furnished by another firm skilled in the art of manufacturing items or 
performing processes of the same general type and character necessary to 
achieve the contract results.

                           (End of alternate)

    Alternate VII (FEB 1998) As prescribed in 48 CFR 927.404(m) make the 
change described in Alternate VII to limit the contractor's use of DOE 
restricted data.
    Insert the parenthetical phrase ``(except Restricted Data in 
category C-24, 10 CFR part 725, in which DOE has reserved the right to 
receive reasonable compensation for the use of its inventions and 
discoveries, including related data and technology).'' after the phrase 
``data first produced or specifically used by the Contractor in the 
performance of this contract'' in paragraph (b)(2)(i) of the clause at 
FAR 52.227-14.

                           (End of alternate)

[63 FR 10507, Mar. 4, 1998]



Sec. 952.227-70--952.227-74  [Reserved]



Sec. 952.227-82  Rights to proposal data.

    Pursuant to 927.7002(d), include this clause in any contract which 
the decision to make the award included consideration of a technical 
proposal.

                   Rights to Proposal Data (APR 1994)

    Except for technical data contained on pages ---- of the 
contractor's proposal dated ---- which are asserted by the contractor as 
being proprietary data, it is agreed that, as a condition of the award 
of this contract, and notwithstanding the provisions of any notice 
appearing on the proposal, the Government shall have the right to use, 
duplicate, disclose and have others do so for any purpose whatsoever, 
the technical data contained in the proposal upon which this contract is 
based.

[49 FR 12042, Mar. 28, 1984, as amended at 59 FR 9109, Feb. 25, 1994; 62 
FR 2312, Jan. 16, 1997]



Sec. 952.227-84  Notice of right to request patent waiver.

    Include this provision in all appropriate solicitations in 
accordance with 48 CFR 927.409(t).

                Right To Request Patent Waiver (FEB 1998)

    Offerors have the right to request a waiver of all or any part of 
the rights of the United States in inventions conceived or first 
actually reduced to practice in performance of the contract that may be 
awarded as a result of this solicitation, in advance of or within 30 
days after the effective date of contracting. Even where such advance 
waiver is not requested or the request is denied, the contractor will 
have a continuing right under the contract to request a waiver of the

[[Page 441]]

rights of the United States in identified inventions, i.e., individual 
inventions conceived or first actually reduced to practice in 
performance of the contract. Domestic small businesses and domestic 
nonprofit organizations normally will receive the patent rights clause 
at DEAR 952.227-11 which permits the contractor to retain title to such 
inventions, except under contracts for management or operation of a 
Government-owned research and development facility or under contracts 
involving exceptional circumstances or intelligence activities. 
Therefore, small businesses and nonprofit organizations normally need 
not request a waiver. See the patent rights clause in the draft contract 
in this solicitation. See DOE's patent waiver regulations at 10 CFR part 
784.

                           (End of provision)

[63 FR 10508, Mar. 4, 1998]



Sec. 952.231-70  Date of incurrence of cost.

    In accordance with 931.205-32, insert the following clause when 
advance understandings have been negotiated regarding costs incurred 
prior to the contract effective date:

                  Date of Incurrence of Cost (APR 1984)

    The Contractor shall be entitled to reimbursement for costs incurred 
in an amount not to exceed $---------- on or after -------------- which, 
if incurred after this contract has been entered into, would have been 
reimbursable under the provisions of this contract.

                             (End of clause)

[49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984, as amended at 74 
FR 36370, July 22, 2009]



Sec. 952.231-71  Insurance-litigation and claims.

    As prescribed in 931.205-19(f), insert the following clause in 
applicable non-management and operating contracts:

               Insurance--Litigation and Claims (JUL 2013)

    (a) The contractor must comply with 10 CFR part 719, contractor 
Legal Management Requirements, if applicable.
    (b)(1) Except as provided in paragraph (b)(2) of this clause, the 
contractor shall procure and maintain such bonds and insurance as 
required by law or approved in writing by the Contracting Officer.
    (2) The contractor may, with the approval of the Contracting 
Officer, maintain a self-insurance program in accordance with FAR 
28.308; provided that, with respect to workers' compensation, the 
contractor is qualified pursuant to statutory authority.
    (3) All bonds and insurance required by this clause shall be in a 
form and amount and for those periods as the Contracting Officer may 
require or approve and with sureties and insurers approved by the 
Contracting Officer.
    (c) The contractor agrees to submit for the Contracting Officer's 
approval, to the extent and in the manner required by the Contracting 
Officer, any other bonds and insurance that are maintained by the 
contractor in connection with the performance of this contract and for 
which the contractor seeks reimbursement. If an insurance cost (whether 
a premium for commercial insurance or related to self-insurance) 
includes a portion covering costs made unallowable elsewhere in the 
contract, and the share of the cost for coverage for the unallowable 
cost is determinable, the portion of the cost that is otherwise an 
allowable cost under this contract is reimbursable to the extent 
determined by the Contracting Officer.
    (d) Except as provided in paragraph (f) of this clause, or 
specifically disallowed elsewhere in this contract, the contractor shall 
be reimbursed--
    (1) For that portion of the reasonable cost of bonds and insurance 
allocable to this contract required in accordance with contract terms or 
approved under this clause, and
    (2) For liabilities (and reasonable expenses incidental to such 
liabilities, including litigation costs) to third persons not 
compensated by insurance without regard to the limitation of cost or 
limitation of funds clause of this contract.
    (e) The Government's liability under paragraph (d) of this clause is 
subject to the availability of appropriated funds. Nothing in this 
contract shall be construed as implying that the Congress will, at a 
later date, appropriate funds sufficient to meet deficiencies.
    (f)(1) Notwithstanding any other provision of this contract, the 
contractor shall not be reimbursed for liabilities to third parties, 
including contractor employees, and directly associated costs which may 
include but are not limited to litigation costs, counsel fees, judgment 
and settlements--
    (i) Which are otherwise unallowable by law or the provisions of this 
contract, including the cost reimbursement limitations contained in 48 
CFR part 970.31, as supplemented by 48 CFR part 931;
    (ii) For which the contractor has failed to insure or to maintain 
insurance as required by law, this contract, or by the written direction 
of the Contracting Officer; or
    (iii) Which were caused by contractor managerial personnel's--
    (A) Willful misconduct;

[[Page 442]]

    (B) Lack of good faith; or
    (C) Failure to exercise prudent business judgment, which means 
failure to act in the same manner as a prudent person in the conduct of 
competitive business; or, in the case of a non-profit educational 
institution, failure to act in the manner that a prudent person would 
under the circumstances prevailing at the time the decision to incur the 
cost is made.
    (2) The term ``contractor's managerial personnel'' is defined in the 
Property clause in this contract.
    (g)(1) All litigation costs, including counsel fees, judgments and 
settlements shall be segregated and accounted for by the contractor 
separately. If the Contracting Officer provisionally disallows such 
costs, then the contractor may not use funds advanced by DOE under the 
contract to finance the litigation.
    (2) Punitive damages are not allowable unless the act or failure to 
act which gave rise to the liability resulted from compliance with 
specific terms and conditions of the contract or written instructions 
from the Contracting Officer.
    (3) The portion of the cost of insurance obtained by the contractor 
that is allocable to coverage of liabilities referred to in paragraph 
(f) of this clause is not allowable.
    (h) The contractor may at its own expense and not as an allowable 
cost procure for its own protection insurance to compensate the 
contractor for any unallowable or non-reimbursable costs incurred in 
connection with contract performance.

                             (End of clause)

[78 FR 25816, May 3, 2013; 78 FR 29247, May 20, 2013]



Sec. 952.233-2  Service of protest.

    As prescribed in 933.106(a), add the following to the end of the 
provision at 48 CFR 52.233-2:

    (c) Another copy of a protest filed with the Government 
Accountability Office 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.

                           (End of provision)

[61 FR 41711, Aug. 9, 1996, as amended at 67 FR 14872, Mar. 28, 2002; 74 
FR 36370, July 22, 2009; 75 FR 29459, May 26, 2010]



Sec. 952.233-4  Notice of protest file availability.

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

             Notice of Protest File Availability (AUG 2009)

    (a) If a protest of this procurement is filed with the Government 
Accountability 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 48 CFR 
33.104(a)(3)(ii), implementing section 1065 of Public Law 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 48 CFR 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.)

                           (End of provision)

[61 FR 41711, Aug. 9, 1996, as amended at 74 FR 36370, 36380, July 22, 
2009; 75 FR 29459, May 26, 2010]



Sec. 952.233-5  Agency protest review.

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

                    Agency Protest Review (SEP 1996)

    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 48 CFR 
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.

                           (End of provision)

[61 FR 41711, Aug. 9, 1996, as amended at 74 FR 36370, 36380, July 22, 
2009]



Sec. 952.235-71  Research misconduct.

    As prescribed in 935.071, insert the following clause:

[[Page 443]]

                     Research Misconduct (JUL 2005)

    (a) The Contractor is responsible for maintaining the integrity of 
research performed pursuant to this contract award including the 
prevention, detection, and remediation of research misconduct as defined 
by this clause, and the conduct of inquiries, investigations, and 
adjudication of allegations of research misconduct in accordance with 
the requirements of this clause.
    (b) Unless otherwise instructed by the Contracting Officer, the 
Contractor must conduct an initial inquiry into any allegation of 
research misconduct. If the Contractor determines that there is 
sufficient evidence to proceed to an investigation, it must notify the 
Contracting Officer and, unless otherwise instructed, the Contractor 
must:
    (1) Conduct an investigation to develop a complete factual record 
and an examination of such record leading to either a finding of 
research misconduct and an identification of appropriate remedies or a 
determination that no further action is warranted.
    (2) If the investigation leads to a finding of research misconduct, 
conduct an adjudication by a responsible official who was not involved 
in the inquiry or investigation and is separated organizationally from 
the element which conducted the investigation. The adjudication must 
include a review of the investigative record and, as warranted, a 
determination of appropriate corrective actions and sanctions.
    (3) Inform the Contracting Officer if an initial inquiry supports a 
formal investigation and, if requested by the Contracting Officer 
thereafter, keep the Contracting Officer informed of the results of the 
investigation and any subsequent adjudication. When an investigation is 
complete, the Contractor will forward to the Contracting Officer a copy 
of the evidentiary record, the investigative report, any recommendations 
made to the Contractor's adjudicating official, the adjudicating 
official's decision and notification of any corrective action taken or 
planned, and the subject's written response (if any).
    (c) The Department of Energy (DOE) may elect to act in lieu of the 
Contractor in conducting an inquiry or investigation into an allegation 
of research misconduct if the Contracting Officer finds that--
    (1) The research organization is not prepared to handle the 
allegation in a manner consistent with this clause;
    (2) The allegation involves an entity of sufficiently small size 
that it cannot reasonably conduct the inquiry;
    (3) DOE involvement is necessary to ensure the public heath, safety, 
and security, or to prevent harm to the public interest; or
    (4) The allegation involves possible criminal misconduct.
    (d) In conducting the activities under paragraphs (b) and (c) of 
this clause, the Contractor and the Department, if it elects to conduct 
the inquiry or investigation, shall adhere to the following guidelines:
    (1) Safeguards for information and subjects of allegations. The 
Contractor shall provide safeguards to ensure that individuals may bring 
allegations of research misconduct made in good faith to the attention 
of the Contractor without suffering retribution. Safeguards include: 
protection against retaliation; fair and objective procedures for 
examining and resolving allegations; and diligence in protecting 
positions and reputations. The Contractor shall also provide the 
subjects of allegations confidence that their rights are protected and 
that the mere filing of an allegation of research misconduct will not 
result in an adverse action. Safeguards include timely written notice 
regarding substantive allegations against them, a description of the 
allegation and reasonable access to any evidence submitted to support 
the allegation or developed in response to an allegation and notice of 
any findings of research misconduct.
    (2) Objectivity and expertise. The Contractor shall select 
individual(s) to inquire, investigate, and adjudicate allegations of 
research misconduct who have appropriate expertise and have no 
unresolved conflict of interest. The individual(s) who conducts an 
adjudication must not be the same individual(s) who conducted the 
inquiry or investigation, and must be separate organizationally from the 
element that conducted the inquiry or investigation.
    (3) Timeliness. The Contractor shall coordinate, inquire, 
investigate and adjudicate allegations of research misconduct promptly, 
but thoroughly. Generally, an investigation should be completed within 
120 days of initiation, and adjudication should be complete within 60 
days of receipt of the record of investigation.
    (4) Confidentiality. To the extent possible, consistent with fair 
and thorough processing of allegations of research misconduct and 
applicable law and regulation, knowledge about the identity of the 
subjects of allegations and informants should be limited to those with a 
need to know.
    (5) Remediation and sanction. If the Contractor finds that research 
misconduct has occurred, it shall assess the seriousness of the 
misconduct and its impact on the research completed or in process. The 
Contractor must take all necessary corrective actions. Such action may 
include but are not limited to, correcting the research record and as 
appropriate imposing restrictions, controls, or other parameters on 
research in process or to be conducted in the future. The Contractor 
must coordinate remedial actions with the Contracting Officer. The 
Contractor

[[Page 444]]

must also consider whether personnel sanctions are appropriate. Any such 
sanction must be considered and effected consistent with any applicable 
personnel laws, policies, and procedures, and shall take into account 
the seriousness of the misconduct and its impact, whether it was done 
knowingly or intentionally, and whether it was an isolated event or 
pattern of conduct.
    (e) DOE reserves the right to pursue such remedies and other actions 
as it deems appropriate, consistent with the terms and conditions of the 
award instrument and applicable laws and regulations. However, the 
Contractor's good faith administration of this clause and the 
effectiveness of its remedial actions and sanctions shall be positive 
considerations and shall be taken into account as mitigating factors in 
assessing the need for such actions. If DOE pursues any such action, it 
will inform the subject of the action of the outcome and any applicable 
appeal procedures.
    (f) Definitions.
    Adjudication means a formal review of a record of investigation of 
alleged research misconduct to determine whether and what corrective 
actions and sanctions should be taken.
    Fabrication means making up data or results and recording or 
reporting them.
    Falsification means manipulating research materials, equipment, or 
processes, or changing or omitting data or results such that the 
research is not accurately represented in the research record.
    Finding of Research Misconduct means a determination, based on a 
preponderance of the evidence, that research misconduct has occurred. 
Such a finding requires a conclusion that there has been a significant 
departure from accepted practices of the relevant research community and 
that it be knowingly, intentionally, or recklessly committed.
    Inquiry means information gathering and initial fact-finding to 
determine whether an allegation or apparent instance of misconduct 
warrants an investigation.
    Investigation means the formal examination and evaluation of the 
relevant facts.
    Plagiarism means the appropriation of another person's ideas, 
processes, results, or words without giving appropriate credit.
    Research means all basic, applied, and demonstration research in all 
fields of science, medicine, engineering, and mathematics, including, 
but not limited to, research in economics, education, linguistics, 
medicine, psychology, social sciences statistics, and research involving 
human subjects or animals.
    Research misconduct means fabrication, falsification, or plagiarism 
in proposing, performing, or reviewing research, or in reporting 
research results, but does not include honest error or differences of 
opinion.
    Research record means the record of all data or results that embody 
the facts resulting from scientists' inquiries, including, but not 
limited to, research proposals, laboratory records, both physical and 
electronic, progress reports, abstracts, theses, oral presentations, 
internal reports, and journal articles.
    (g) By executing this contract, the Contractor provides its 
assurance that it has established an administrative process for 
performing an inquiry, mediating if possible, or investigating, and 
reporting allegations of research misconduct; and that it will comply 
with its own administrative process and the requirements of 10 CFR part 
733 for performing an inquiry, possible mediation, investigation and 
reporting of research misconduct.
    (h) The Contractor must insert or have inserted the substance of 
this clause, including paragraph (g), in subcontracts at all tiers that 
involve research.

                             (End of clause)

[70 FR 37015, June 28, 2005, as amended at 74 FR 36370, 36378, 36380, 
July 22, 2009; 75 FR 29459, May 26, 2010]



Sec. 952.236  Construction and architect-engineer contracts.



Sec. 952.236-71  Inspection in architect-engineer contracts.

    As prescribed at 936.609-3 insert the following clause:

                          Inspection (APR 1994)

    The Government, through any authorized representatives, has the 
right at all reasonable times, to inspect, or otherwise evaluate the 
work performed or being performed hereunder and the premises in which it 
is being performed. If any inspection, or evaluation is made by the 
Government on the premises of the Contractor or a subcontractor, the 
Contractor shall provide and shall require his subcontractors to provide 
all reasonable facilities and assistance for the safety and convenience 
of the Government representatives in the performance of their duties. 
All inspections and evaluations shall be performed in such a manner as 
will not unduly delay the work.

                             (End of clause)

[49 FR 12042, Mar. 28, 1984, as amended at 59 FR 9109, Feb. 25, 1994; 62 
FR 2312, Jan. 16, 1997; 74 FR 36370, July 22, 2009]



Sec. 952.236-72  Nonrefundable fee for plans and specifications.

    In accordance with the requirement at 936.202(h) include the 
following in solicitations for construction:

[[Page 445]]

        Nonrefundable Fee for Plans and Specifications (APR 1984)

    A fee of $------ is required for the plans and specifications 
referenced in this solicitation. Send check or money order to --------
--. The fee is not refundable. Plans and specifications need not be 
returned.

[49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984, as amended at 59 
FR 9109, Feb. 25, 1994; 67 FR 14872, Mar. 28, 2002; 74 FR 36370, July 
22, 2009]



Sec. 952.237-70  Collective bargaining agreements--protective services.

    As prescribed in 937.7040, insert the following clause:

    Collective Bargaining Agreements--Protective Services (AUG 1993)

    When negotiating collective bargaining agreements applicable to the 
work force under this contract, the Contractor shall use its best 
efforts to ensure such agreements contain provisions designed to assure 
continuity of services. All such agreements entered into during the 
contract period of performance should provide that grievances and 
disputes involving the interpretation or application of the agreement 
will be settled without resorting to strike, lockout, or other 
interruption of normal operations.
    For this purpose, each collective bargaining agreement should 
provide an effective grievance procedure with arbitration as its final 
step, unless the parties mutually agree upon some other method of 
assuring continuity of operations. As part of such agreements, 
management and labor should agree to cooperate fully with the Federal 
Mediation and Conciliation Service. The Contractor shall include the 
substance of this clause in any subcontracts for protective services.

                             (End of clause)

[58 FR 36152, July 6, 1993; 58 FR 43287, Aug. 16, 1993, as amended at 67 
FR 14872, Mar. 28, 2002; 74 FR 36370, 36378, July 22, 2009]



Sec. 952.242-70  Technical direction.

    As prescribed in 942.270-2, insert the following clause:

                     Technical Direction (DEC 2000)

    (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;
    (2) Advise the Contractor in writing within a reasonable time that 
the Government will issue a written change order; or
    (3) Advise the Contractor in writing within a reasonable time not to 
proceed with the instruction or direction of the COR.
    (f) A failure of the Contractor and Contracting Officer either to 
agree that the

[[Page 446]]

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)

[65 FR 81008, Dec. 22, 2000, as amended at 74 FR 36370, 36378, 36380, 
July 22, 2009]



Sec. 952.245  Clauses related to government property.



Sec. 952.245-2  Government property (fixed-price contracts).

    Modify FAR 52.245-2 by adding ``and the DOE Acquisition Regulation 
Subpart 945.5,'' after the reference to FAR Subpart 45.5 in the first 
sentence of paragraphs (e)(1) and (e)(2) of the clause.



Sec. 952.245-5  Government property (cost-reimbursement, time-and-
          materials, or labor-hour contracts.)

    Modify FAR 52.245-1 by adding ``and DOE Acquisition Regulation 
Subpart 945.5'' after the reference to FAR Subpart 45.5 in paragraphs 
(e)(1) and (e)(2) of the clause.

[49 FR 12042, Mar. 28, 1984, as amended at 77 FR 74389, Dec. 14, 2012]



Sec. 952.247-70  Foreign travel.

    As prescribed in 947.7002, insert the following clause:

                        Foreign Travel (JUN 2010)

    Contractor foreign travel shall be conducted pursuant to the 
requirements contained in Department of Energy (DOE) Order 551.1C, 
Official Foreign Travel, or its successor in effect at the time of 
award.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36370, July 22, 2009; 
75 FR 29459, May 26, 2010]



Sec. 952.249  Clauses related to termination.



Sec. 952.250  Clauses related to indemnification of contractors.



Sec. 952.250-70  Nuclear hazards indemnity agreement.

    Insert the following clause in accordance with section 950.7006:

             Nuclear Hazards Indemnity Agreement (JUN 1996)

    (a) Authority. This clause is incorporated into this contract 
pursuant to the authority contained in subsection 170d. of the Atomic 
Energy Act of 1954, as amended (hereinafter called the Act.)
    (b) Definitions. The definitions set out in the Act shall apply to 
this clause.
    (c) Financial protection. Except as hereafter permitted or required 
in writing by DOE, the Contractor will not be required to provide or 
maintain, and will not provide or maintain at Government expense, any 
form of financial protection to cover public liability, as described in 
paragraph (d)(2) below. DOE may, however, at any time require in writing 
that the Contractor provide and maintain financial protection of such a 
type and in such amount as DOE shall determine to be appropriate to 
cover such public liability, provided that the costs of such financial 
protection are reimbursed to the Contractor by DOE.
    (d)(1) Indemnification. To the extent that the Contractor and other 
persons indemnified are not compensated by any financial protection 
permitted or required by DOE, DOE will indemnify the Contractor and 
other persons indemnified against (i) claims for public liability as 
described in subparagraph (d)(2) of this clause; and (ii) such legal 
costs of the Contractor and other persons indemnified as are approved by 
DOE, provided that DOE's liability, including such legal costs, shall 
not exceed the amount set forth in section 170e.(1)(B) of the Act in the 
aggregate for each nuclear incident or precautionary evacuation 
occurring within the United States or $100 million in the aggregate for 
each nuclear incident occurring outside the United States, irrespective 
of the number of persons indemnified in connection with this contract.
    (2) The public liability referred to in subparagraph (d)(1) of this 
clause is public liability as defined in the Act which (i) arises out of 
or in connection with the activities under this contract, including 
transportation; and (ii) arises out of or results from a nuclear 
incident or precautionary evacuation, as those terms are defined in the 
Act.
    (e)(1) Waiver of defenses. In the event of a nuclear incident, as 
defined in the Act, arising out of nuclear waste activities, as defined 
in the Act, the Contractor, on behalf of itself and other persons 
indemnified, agrees to waive any issue or defense as to charitable or 
governmental immunity.
    (2) In the event of an extraordinary nuclear occurrence which--
    (i) Arises out of, results from, or occurs in the course of the 
construction, possession, or operation of a production or utilization 
facility; or

[[Page 447]]

    (ii) Arises out of, results from, or occurs in the course of 
transportation of source material, by-product material, or special 
nuclear material to or from a production or utilization facility; or
    (iii) Arises out of or results from the possession, operation, or 
use by the Contractor or a subcontractor of a device utilizing special 
nuclear material or by-product material, during the course of the 
contract activity; or
    (iv) Arises out of, results from, or occurs in the course of nuclear 
waste activities, the Contractor, on behalf of itself and other persons 
indemnified, agrees to waive--
    (A) Any issue or defense as to the conduct of the claimant 
(including the conduct of persons through whom the claimant derives its 
cause of action) or fault of persons indemnified, including, but not 
limited to--
    (1) Negligence;
    (2) Contributory negligence;
    (3) Assumption of risk; or
    (4) Unforeseeable intervening causes, whether involving the conduct 
of a third person or an act of God;
    (B) Any issue or defense as to charitable or governmental immunity; 
and
    (C) Any issue or defense based on any statute of limitations, if 
suit is instituted within 3 years from the date on which the claimant 
first knew, or reasonably could have known, of his injury or change and 
the cause thereof. The waiver of any such issue or defense shall be 
effective regardless of whether such issue or defense may otherwise be 
deemed jurisdictional or relating to an element in the cause of action. 
The waiver shall be judicially enforceable in accordance with its terms 
by the claimant against the person indemnified.
    (v) The term extraordinary nuclear occurrence means an event which 
DOE has determined to be an extraordinary nuclear occurrence as defined 
in the Act. A determination of whether or not there has been an 
extraordinary nuclear occurrence will be made in accordance with the 
procedures in 10 CFR part 840.
    (vi) For the purposes of that determination, offsite as that term is 
used in 10 CFR part 840 means away from ``the contract location'' which 
phrase means any DOE facility, installation, or site at which 
contractual activity under this contract is being carried on, and any 
contractor-owned or controlled facility, installation, or site at which 
the Contractor is engaged in the performance of contractual activity 
under this contract.
    (3) The waivers set forth above--
    (i) Shall be effective regardless of whether such issue or defense 
may otherwise be deemed jurisdictional or relating to an element in the 
cause of action;
    (ii) Shall be judicially enforceable in accordance with its terms by 
the claimant against the person indemnified;
    (iii) Shall not preclude a defense based upon a failure to take 
reasonable steps to mitigate damages;
    (iv) Shall not apply to injury or damage to a claimant or to a 
claimant's property which is intentionally sustained by the claimant or 
which results from a nuclear incident intentionally and wrongfully 
caused by the claimant;
    (v) Shall not apply to injury to a claimant who is employed at the 
site of and in connection with the activity where the extraordinary 
nuclear occurrence takes place, if benefits therefor are either payable 
or required to be provided under any workmen's compensation or 
occupational disease law;
    (vi) Shall not apply to any claim resulting from a nuclear incident 
occurring outside the United States;
    (vii) Shall be effective only with respect to those obligations set 
forth in this clause and in insurance policies, contracts or other proof 
of financial protection; and
    (viii) Shall not apply to, or prejudice the prosecution or defense 
of, any claim or portion of claim which is not within the protection 
afforded under (A) the limit of liability provisions under subsection 
170e. of the Act, and (B) the terms of this agreement and the terms of 
insurance policies, contracts, or other proof of financial protection.
    (f) Notification and litigation of claims. The Contractor shall give 
immediate written notice to DOE of any known action or claim filed or 
made against the Contractor or other person indemnified for public 
liability as defined in paragraph (d)(2). Except as otherwise directed 
by DOE, the Contractor shall furnish promptly to DOE, copies of all 
pertinent papers received by the Contractor or filed with respect to 
such actions or claims. DOE shall have the right to, and may collaborate 
with, the Contractor and any other person indemnified in the settlement 
or defense of any action or claim and shall have the right to (1) 
require the prior approval of DOE for the payment of any claim that DOE 
may be required to indemnify hereunder; and (2) appear through the 
Attorney General on behalf of the Contractor or other person indemnified 
in any action brought upon any claim that DOE may be required to 
indemnify hereunder, take charge of such action, and settle or defend 
any such action. If the settlement or defense of any such action or 
claim is undertaken by DOE, the Contractor or other person indemnified 
shall furnish all reasonable assistance in effecting a settlement or 
asserting a defense.
    (g) Continuity of DOE obligations. The obligations of DOE under this 
clause shall not be affected by any failure on the part of the 
Contractor to fulfill its obligation under this contract and shall be 
unaffected by the death, disability, or termination of existence of the 
Contractor, or by the completion, termination or expiration of this 
contract.

[[Page 448]]

    (h) Effect of other clauses. The provisions of this clause shall not 
be limited in any way by, and shall be interpreted without reference to, 
any other clause of this contract, including the clause entitled 
Contract Disputes, provided, however, that this clause shall be subject 
to the clauses entitled Covenant Against Contingent Fees, and Accounts, 
records, and inspection, and any provisions that are later added to this 
contract as required by applicable Federal law, including statutes, 
executive orders and regulations, to be included in Nuclear Hazards 
Indemnity Agreements.
    (i) Civil penalties. The Contractor and its subcontractors and 
suppliers who are indemnified under the provisions of this clause are 
subject to civil penalties, pursuant to 234A of the Act, for violations 
of applicable DOE nuclear-safety related rules, regulations, or orders.
    (j) Criminal penalties. Any individual director, officer, or 
employee of the Contractor or of its subcontractors and suppliers who 
are indemnified under the provisions of this clause are subject to 
criminal penalties, pursuant to 223(c) of the Act, for knowing and 
willful violation of the Atomic Energy Act of 1954, as amended, and 
applicable DOE nuclear safety-related rules, regulations or orders which 
violation results in, or, if undetected, would have resulted in a 
nuclear incident.
    (k) Inclusion in subcontracts. The Contractor shall insert this 
clause in any subcontract which may involve the risk of public 
liability, as that term is defined in the Act and further described in 
paragraph (d)(2) above. However, this clause shall not be included in 
subcontracts in which the subcontractor is subject to Nuclear Regulatory 
Commission (NRC) financial protection requirements under section 170b. 
of the Act or NRC agreements of indemnification under section 170c. or 
k. of the Act for the activities under the subcontract.

                             Effective date

    ( ) See note II below for instructions related to this section on 
Effective Date.

                    Relationship to general indemnity

    ( ) See note III below for instructions related to this section on 
Relationship to General Indemnity.

                             (End of clause)

                                 Note I

    Paragraph (i) of the clause will be replaced with ``Reserved'' in 
contracts specifically exempted from civil penalties by section 234 of 
the Act. That subsection provides that the following DOE contractors are 
not subject to the assessment of civil penalties:
    (1) The University of Chicago (and any subcontractors or suppliers 
thereto) for activities associated with Argonne National Laboratory;
    (2) The University of California (and any subcontractors or 
suppliers thereto) for activities associated with Los Alamos National 
Laboratory, Lawrence Livermore National Laboratory, and Lawrence 
Berkeley National Laboratory;
    (3) American Telephone and Telegraph Company and its subsidiaries 
(and any subcontractors or suppliers thereto) for activities associated 
with Sandia National Laboratories;
    (4) Universities Research Association, Inc. (and any subcontractors 
or suppliers thereto) for activities associated with FERMI National 
Laboratory:
    (5) Princeton University (and any subcontractor or suppliers 
thereto) for activities associated with Princeton Plasma Physics 
Laboratory;
    (6) The Associated Universities, Inc. (and any subcontractors or 
suppliers thereto) for activities associated with the Brookhaven 
National Laboratory; and
    (7) Battelle Memorial Institute (and any subcontractors or suppliers 
thereto) for activities associated with Pacific Northwest Laboratory.

                              (End of note)

                                 Note II

    Contracts with an effective date after the date of June 12, 1996, do 
not require the effective date provision in this clause. Delete the 
title.
    Use the EFFECTIVE DATE title and the following language, for those 
contracts:


Sec. ``( ) This indemnity agreement shall be applicable with respect to 
          nuclear incidents occurring on or after ----.''
    (1) Those that contained an indemnity pursuant to Public Law 85-840 
prior to August 20, 1988, include the effective date provision above, 
inserting the effective date of the contract modification that replaced 
the Public Law 85-804 indemnity with an interim Price-Anderson based 
indemnity. Pursuant to the Price-Anderson Amendments Act, this 
substitution must have taken place by February 20, 1989.
    (2) Those that contained, and continue to contain, either of the 
previous Nuclear Hazards Indemnity clauses, include the effective date 
provision above, inserting ``August 20, 1988.''
    (3) Those with an effective date between August 20, 1988, and the 
date of the Final Rule, that (a) had ``interim coverage'' or (b) did not 
have ``interim coverage'' but have now been determined to be covered 
under the PAAA, include the effective date provision above, inserting 
the contract effective date.

[[Page 449]]

                                Note III

    The following alternate will be added to the above Nuclear Hazards 
Indemnity Agreement clause for all contracts that contain a general 
authority indemnity pursuant to 950.7101. Caution: Be aware that for 
contracts that will have this provision added which do not contain an 
effective date provision, this paragraph shall be marked (1). In the 
event an Effective Date provision has been included, it shall be market 
(m).

Sec. ``( ) To the extent that the Contractor is compensated by any 
          financial protection, or is indemnified pursuant to this 
          clause, or is effectively relieved of public liability by an 
          order or orders limiting same, pursuant to 170e of the Act, 
          the provisions of the clause providing general authority 
          indemnity shall not apply.''

                              (End of note)

[56 FR 57828, Nov. 14, 1991, as amended at 58 FR 32307, June 9, 1993; 61 
FR 21977, May 13, 1996; 61 FR 30823, June 18, 1996; 67 FR 14872, Mar. 
28, 2002; 74 FR 36370, 36378, July 22, 2009; 75 FR 29459, May 26, 2010]



Sec. 952.250-71--952.250-72  [Reserved]



Sec. 952.251-70  Contractor employee travel discounts.

    As prescribed in 951.7002, insert the following clause:

             Contractor Employee Travel Discounts (AUG 2009)

    (a) The Contractor shall take advantage of travel discounts offered 
to Federal Contractor employee travelers by AMTRAK, hotels, motels, or 
car rental companies, when use of such discounts would result in lower 
overall trip costs and the discounted services are reasonably available. 
Vendors providing these services may require the Contractor employee to 
furnish them a letter of identification signed by the authorized 
Contracting Officer.
    (b) Contracted airlines. Contractors are not eligible for GSA 
contract city pair fares.
    (c) Discount rail service. AMTRAK voluntarily offers discounts to 
Federal travelers on official business and sometimes extends those 
discounts to Federal contractor employees.
    (d) Hotels/motels. Many lodging providers extend their discount 
rates for Federal employees to Federal contractor employees.
    (e) Car rentals. The Surface Deployment and Distribution Command 
(SDDC) of the Department of Defense negotiates rate agreements with car 
rental companies that are available to Federal travelers on official 
business. Some car rental companies extend those discounts to Federal 
contractor employees.
    (f) Obtaining travel discounts. (1) To determine which vendors offer 
discounts to Government contractors, the Contractor may review 
commercial publications such as the Official Airline guides Official 
Traveler, Innovata, or National Telecommunications. The Contractor may 
also obtain this information from GSA contract Travel Management Centers 
or the Department of Defense's Commercial Travel Offices.
    (2) The vendor providing the service may require the Government 
contractor to furnish a letter signed by the Contracting Officer. The 
following illustrates a standard letter of identification.

                       OFFICIAL AGENCY LETTERHEAD

TO: Participating Vendor
SUBJECT: OFFICIAL TRAVEL OF GOVERNMENT CONTRACTOR

(FULL NAME OF TRAVELER), the bearer of this letter is an employee of 
(COMPANY NAME) which has a contract with this agency under Government 
contract (CONTRACT NUMBER). During the period of the contract (GIVE 
DATES), AND WITH THE APPROVAL OF THE CONTRACT VENDOR, the employee is 
eligible and authorized to use available travel discount rates in 
accordance with Government contracts and/or agreements. Government 
Contract City Pair fares are not available to Contractors.

SIGNATURE, Title and telephone number of Contracting Officer

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36370, 36378, 36380, 
July 22, 2009]

[[Page 450]]

              SUBCHAPTER I_AGENCY SUPPLEMENTARY REGULATIONS

             PART 970_DOE MANAGEMENT AND OPERATING CONTRACTS

   Subpart 970.01_Management and Operating Contract Regulatory System

Sec.

Sec. 970.0100 Scope of part.

Sec. 970.0103 Publication and codification.

  Subpart 970.03_Improper Business Practices and Personal Conflicts of 
                                Interest


Sec. 970.0309 Whistleblower protection of contractor employees.

Sec. 970.0309-1 Applicability.

Sec. 970.0370 Management controls and improvements.

Sec. 970.0370-1 Policy.

Sec. 970.0370-2 Contract clause.

Sec. 970.0371 Conduct of employees of DOE management and operating 
          contractors.

Sec. 970.0371-1 Scope of section.

Sec. 970.0371-2 Applicability.

Sec. 970.0371-3 Definition.

Sec. 970.0371-4 Gratuities.

Sec. 970.0371-5 Use of privileged information.

Sec. 970.0371-6 Incompatibility between regular duties and private 
          interests.

Sec. 970.0371-7 Outside employment of contractor employees.

Sec. 970.0371-8 Employee disclosure concerning other employment 
          services.

Sec. 970.0371-9 Contract clause.

                  Subpart 970.04_Administrative Matters


Sec. 970.0404 Safeguarding classified information.

Sec. 970.0404-1 Definitions.

Sec. 970.0404-2 General.

Sec. 970.0404-3 Responsibilities of contracting officers.

Sec. 970.0404-4 Solicitation provision and contract clauses.

Sec. 970.0407 Contractor records retention.

Sec. 970.0407-1 Applicability.

Sec. 970.0407-1-1 Alternate retention schedules.

Sec. 970.0407-1-2 Access to and ownership of records.

Sec. 970.0407-1-3 Contract clause.

Sec. 970.0470 Department of Energy Directives.

Sec. 970.0470-1 General.

Sec. 970.0470-2 Contract clause.

        Subpart 970.08_Required Sources of Supplies and Services


Sec. 970.0801 Excess personal property.

Sec. 970.0801-2 Policy.

Sec. 970.0808 Acquisition of printing and related supplies.

Sec. 970.0808-00 Scope.

Sec. 970.0808-2 Policy.

Sec. 970.0808-3 Contract clause.

                Subpart 970.09_Contractor Qualifications


Sec. 970.0905 Organizational and consultant conflicts of interest.

Sec. 970.0970 Performance guarantees.

Sec. 970.0970-1 Determination of responsibility.

Sec. 970.0970-2 Solicitation provision.

                 Subpart 970.11_Describing Agency Needs


Sec. 970.1100 Policy.

Sec. 970.1100-1 Performance-based contracting.

Sec. 970.1100-2 Additional considerations.

Sec. 970.1103-4 Contract clause.

Sec. 970.1170 Work authorization.

Sec. 970.1170-1 Policy.

Sec. 970.1170-2 Contract provision.

                Subpart 970.15_Contracting by Negotiation


Sec. 970.1504 Contract pricing.

Sec. 970.1504-1 Price analysis

Sec. 970.1504-1-1 Fees for management and operating contracts.

Sec. 970.1504-1-2 Fee policy.

Sec. 970.1504-1-3 Special considerations: Laboratory management and 
          operation.

Sec. 970.1504-1-4 Types of contracts and fee arrangements.

Sec. 970.1504-1-5 General considerations and techniques for determining 
          fixed fees.

Sec. 970.1504-1-6 Calculating fixed fee.

Sec. 970.1504-1-7 Fee base.

Sec. 970.1504-1-8 Special equipment purchases.

Sec. 970.1504-1-9 Special considerations: Cost-plus-award-fee.

Sec. 970.1504-1-10 Special considerations: Fee limitations.

Sec. 970.1504-1-11 Documentation.

Sec. 970.1504-2 Price negotiation.

Sec. 970.1504-3 Documentation.

Sec. 970.1504-3-1 Cost or pricing data.

Sec. 970.1504-4 Special cost or pricing areas.

Sec. 970.1504-4-1--970.1504-4-3 [Reserved]

Sec. 970.1504-5 Solicitation provision contract clauses.

               Subpart 970.17_Special Contracting Methods


Sec. 970.1706 Management and operating contracts.

Sec. 970.1706-1 Award, renewal, and extension.

Sec. 970.1706-2 Contract clause.

Sec. 970.1707 Work for others.

Sec. 970.1707-1 Scope.

Sec. 970.1707-2 Purpose.

Sec. 970.1707-3 Terms governing work for others.

Sec. 970.1707-4 Contract clause.

[[Page 451]]

                 Subpart 970.19_Small Business Programs


Sec. 970.1907 The Small Business Subcontracting Program.

Sec. 970.1907-4 Subcontracting plan requirements.

              Subpart 970.22_Application of Labor Policies


Sec. 970.2200 Scope of subpart.

Sec. 970.2201 Basic labor policies.

Sec. 970.2201-1 Labor relations.

Sec. 970.2201-1-1 General.

Sec. 970.2201-1-2 Policies.

Sec. 970.2201-1-3 Contract clause.

Sec. 970.2201-2 Overtime management.

Sec. 970.2201-2-1 Policy.

Sec. 970.2201-2-2 Contract clause.

Sec. 970.2204 Labor standards for contracts involving construction.

Sec. 970.2204-1 Statutory and regulatory requirements.

Sec. 970.2204-1-1 Administrative controls and criteria for application 
          of the Davis-Bacon Act in operational or maintenance 
          activities.

Sec. 970.2208 Equal Employment Opportunity.

Sec. 970.2210 Service contract act.

Sec. 970.2270 Unemployment compensation.

   Subpart 970.23_Environment, Energy and Water Efficiency, Renewable 
    Energy Technologies, Occupational Safety and Drug-Free Work Place


Sec. 970.2301 Sustainable acquisition.

Sec. 970.2301-1 Policy.

Sec. 970.2301-2 Contract clauses.

Sec. 970.2303 Hazardous materials identification and material safety.

Sec. 970.2303-2-70 General.

Sec. 970.2303-3 Contract clauses.

Sec. 970.2305 Workplace substance abuse programs--Management and 
          operating contracts.

Sec. 970.2305-1 General.

Sec. 970.2305-2 Applicability.

Sec. 970.2305-3 Definitions.

Sec. 970.2305-4 Solicitation provision and contract clause.

Sec. 970.2306 Suspension of payments, termination of contract, and 
          debarment and suspension actions.

                   Subpart 970.25_Foreign Acquisition


Sec. 970.2570 Contract clauses.

               Subpart 970.26_Other Socioeconomic Programs


Sec. 970.2670 Implementation of Section 3021 of the Energy Policy Act of 
          1992.

Sec. 970.2670-1 Requirements.

Sec. 970.2671 Diversity.

Sec. 970.2671-1 Policy.

Sec. 970.2671-2 Contract clause.

Sec. 970.2672 Implementation of Section 3161 of the National Defense 
          Authorization Act for Fiscal Year 1993.

Sec. 970.2672-1 Policy.

Sec. 970.2672-2 Requirements.

Sec. 970.2672-3 Contract clause.

Sec. 970.2673 Regional partnerships.

Sec. 970.2673-1 Policy.

Sec. 970.2673-2 Contract clause.

              Subpart 970.27_Patents, Data, and Copyrights


Sec. 970.2701 General.

Sec. 970.2701-1 Applicability.

Sec. 970.2702 Patent related clauses.

Sec. 970.2702-1 Authorization and consent.

Sec. 970.2702-2 Notice and assistance regarding patent and copyright 
          infringement.

Sec. 970.2702-3 Patent indemnity.

Sec. 970.2702-4 Royalties.

Sec. 970.2702-5 Rights to proposal data.

Sec. 970.2702-6 Notice of right to request patent waiver.

Sec. 970.2703 Patent rights.

Sec. 970.2703-1 Purposes of patent rights clauses.

Sec. 970.2703-2 Patent rights clause provisions for management and 
          operating contractors.

Sec. 970.2704 Rights in data.

Sec. 970.2704-1 General.

Sec. 970.2704-2 Procedures.

Sec. 970.2704-3 Contract clauses.

Sec. 970.2770 Technology transfer.

Sec. 970.2770-1 General.

Sec. 970.2770-2 Policy.

Sec. 970.2770-3 Technology transfer and patent rights.

Sec. 970.2770-4 Contract clause.

                   Subpart 970.28_Bonds and Insurance


Sec. 970.2803 Insurance.

Sec. 970.2803-1 Workers' compensation insurance.

Sec. 970.2803-2 Contract clause.

                          Subpart 970.29_Taxes


Sec. 970.2902 Federal excise taxes.

Sec. 970.2902-3 Other Federal tax exemptions.

Sec. 970.2903 State and local taxes.

Sec. 970.2903-2 Application of State and local taxes to the Government.

Sec. 970.2904 Contract clauses.

Sec. 970.2904-1 Management and operating contracts.

         Subpart 970.30_Cost Accounting Standards Administration


Sec. 970.3002 CAS Program Requirements.

Sec. 970.3002-1 CAS applicability.

[[Page 452]]

         Subpart 970.31_Contract Cost Principles and Procedures


Sec. 970.3101-00-70 Scope of subpart.

Sec. 970.3101-9 Advance agreements.

Sec. 970.3101-10 Indirect cost rate certification and penalties on 
          unallowable costs.

Sec. 970.3102-3-70 Home office expenses

Sec. 970.3102-05 Selected costs.

Sec. 970.3102-05-4 Bonding costs.

Sec. 970.3102-05-6 Compensation for personal services.

Sec. 970.3102-05-18 Independent research and development and bid and 
          proposal costs.

Sec. 970.3102-05-19 Insurance and indemnification.

Sec. 970.3102-05-22 Lobbying and political activity costs.

Sec. 970.3102-05-28 Other business expenses.

Sec. 970.3102-05-30 Patent costs.

Sec. 970.3102-05-30-70 Patent costs and technology transfer costs.

Sec. 970.3102-05-33 Professional and consultant service costs.

Sec. 970.3102-05-46 Travel costs.

Sec. 970.3102-05-47 Costs related to legal and other proceedings.

Sec. 970.3102-05-70 Preexisting conditions.

Sec. 970.3170 Contract clause.

                    Subpart 970.32_Contract Financing


Sec. 970.3200 Policy.

Sec. 970.3200-1 Reduction or suspension of advance, partial, or progress 
          payments.

Sec. 970.3200-1-1 Contract clause.

Sec. 970.3204 Advance payments.

Sec. 970.3204-1 Applicability.

Sec. 970.3270 Standard financial management clauses.

                 Subpart 970.34_Major System Acquisition


Sec. 970.3405 General requirements.

Sec. 970.3405-1 Mission-oriented solicitation.

           Subpart 970.35_Research and Development Contracting


Sec. 970.3500 Scope of subpart.

Sec. 970.3501 Federally funded research and development centers.

Sec. 970.3501-1 Sponsoring agreements.

Sec. 970.3501-2 Using an FFRDC.

Sec. 970.3501-3 Reviewing FFRDC's.

Sec. 970.3501-4 Contract Clause.

      Subpart 970.36_Construction and Architect-Engineer Contracts.


Sec. 970.3605 Contract clauses.

Sec. 970.3605-1 Other contracts.

Sec. 970.3605-2 Special construction clause for operating contracts.

            Subpart 970.37_Facilities Management Contracting


Sec. 970.3706 Performance-based acquisition.

Sec. 970.3706-1 General.

Sec. 970.3770 Facilities management.

Sec. 970.3770-1 Policy.

Sec. 970.3770-2 [Reserved]

             Subpart 970.41_Acquisition of Utility Services


Sec. 970.4102 Acquiring utility services.

Sec. 970.4102-1 Policy.

                 Subpart 970.42_Contract Administration


Sec. 970.4207-03-02 Certificate of costs.

Sec. 970.4207-03-70 Contract clause.

Sec. 970.4207-05-01 Contracting officer determination procedure.

                  Subpart 970.43_Contract Modifications


Sec. 970.4302 Changes.

Sec. 970.4302-1 Contract Clause.

      Subpart 970.44_Management and Operating Contractor Purchasing


Sec. 970.4400 Scope.

Sec. 970.4401 Responsibilities.

Sec. 970.4401-1 General.

Sec. 970.4401-2 Review and approval.

Sec. 970.4401-3 Advance notification.

Sec. 970.4402 Contractor purchasing system.

Sec. 970.4402-1 Policy.

Sec. 970.4402-2 General requirements.

Sec. 970.4402-3 Purchasing from contractor-affiliated sources.

Sec. 970.4402-4 Nuclear material transfers.

Sec. 970.4403 Contract clause.

                   Subpart 970.45_Government Property


Sec. 970.4501 General.

Sec. 970.4501-1 Contract clause.

                 Subpart 970.49_Termination of Contracts


Sec. 970.4905 Contract termination clause.

Sec. 970.4905-1 Termination for convenience of the government and 
          default.

   Subpart 970.50_Extraordinary Contractual Actions and the Safety Act


Sec. 970.5001 Residual powers.

Sec. 970.5001-4 Contract clause.

Sec. 970.5070 Indemnification.

Sec. 970.5070-1 Scope and applicability.

Sec. 970.5070-2 General.

[[Page 453]]


Sec. 970.5070-3 Contract clauses.

    Subpart 970.52_Solicitation Provisions and Contract Clauses for 
                   Management and Operating Contracts


Sec. 970.5200 Scope of subpart.

Sec. 970.5201 Text of provisions and clauses.

Sec. 970.5203-1 Management controls.

Sec. 970.5203-2 Performance improvement and collaboration.

Sec. 970.5203-3 Contractor's organization.

Sec. 970.5204-1 Counterintelligence.

Sec. 970.5204-2 Laws, regulations, and DOE directives.

Sec. 970.5204-3 Access to and ownership of records.

Sec. 970.5208-1 Printing.

Sec. 970.5209-1 Requirement for guarantee of performance.

Sec. 970.5211-1 Work authorization.

Sec. 970.5215-1 Total Available Fee: Base fee amount and performance fee 
          amount.

Sec. 970.5215-2 [Reserved]

Sec. 970.5215-3 Conditional payment of fee, profit, or incentives.

Sec. 970.5215-4 Cost reduction.

Sec. 970.5215-5 Limitation on fee.

Sec. 970.5217-1 Work for Others Program.

Sec. 970.5222-1 Collective bargaining agreements--management and 
          operating contracts.

Sec. 970.5222-2 Overtime management.

Sec. 970.5223-1 Integration of environment, safety, and health into work 
          planning and execution.

Sec. 970.5223-3 Agreement regarding Workplace Substance Abuse Programs 
          at DOE sites.

Sec. 970.5223-4 Workplace Substance Abuse Programs at DOE sites.

Sec. 970.5223-6 Executive Order 13423, Strengthening Federal 
          Environmental, Energy, and Transportation Management.

Sec. 970.5223-7 Sustainable acquisition program.

Sec. 970.5226-1 Diversity plan.

Sec. 970.5226-2 Workforce restructuring under Section 3161 of the 
          National Defense Authorization Act for Fiscal Year 1993.

Sec. 970.5226-3 Community commitment.

Sec. 970.5227-1 Rights in data--facilities.

Sec. 970.5227-2 Rights in data--technology transfer.

Sec. 970.5227-3 Technology transfer mission.

Sec. 970.5227-4 Authorization and consent.

Sec. 970.5227-5 Notice and assistance regarding patent and copyright 
          infringement.

Sec. 970.5227-6 Patent indemnity--subcontracts.

Sec. 970.5227-7 Royalty information.

Sec. 970.5227-8 Refund of royalties.

Sec. 970.5227-9 Notice of right to request patent waiver.

Sec. 970.5227-10 Patent rights--management and operating contracts, 
          nonprofit organization or small business firm contractor.

Sec. 970.5227-11 Patent rights--management and operating contracts, for-
          profit contractor, non-technology transfer.

Sec. 970.5227-12 Patent rights--management and operating contracts, for-
          profit contractor, advance class waiver.

Sec. 970.5228-1 Insurance--Litigation and claims.

Sec. 970.5229-1 State and local taxes.

Sec. 970.5231-4 Preexisting conditions.

Sec. 970.5232-1 Reduction or suspension of advance, partial, or progress 
          payments upon finding of substantial evidence of fraud.

Sec. 970.5232-2 Payments and advances.

Sec. 970.5232-3 Accounts, records, and inspection.

Sec. 970.5232-4 Obligation of funds.

Sec. 970.5232-5 Liability with respect to cost accounting standards.

Sec. 970.5232-6 Work for others funding authorization.

Sec. 970.5232-7 Financial management system.

Sec. 970.5232-8 Integrated accounting.

Sec. 970.5235-1 Federally funded research and development center 
          sponsoring agreement.

Sec. 970.5236-1 Government facility subcontract approval.

Sec. 970.5237-2 [Reserved]

Sec. 970.5242-1 Penalties for unallowable costs.

Sec. 970.5243-1 Changes.

Sec. 970.5244-1 Contractor purchasing system.

Sec. 970.5245-1 Property.

    Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 et 
seq.; 50 U.S.C. 2401 et seq.

    Source: 65 FR 81009, Dec. 22, 2000, unless otherwise noted.

   Subpart 970.01_Management and Operating Contract Regulatory System



Sec. 970.0100  Scope of part.

    This part provides Departmental policies, procedures, provisions, 
and clauses that implement and supplement the Federal Acquisition 
Regulation (FAR) (Chapter 1 of Title 48 Code of Federal Regulations 
(CFR)) and other parts of the Department of Energy Acquisition 
Regulation (DEAR) (Chapter 9 of Title 48 CFR) for the award and 
administration of the Department's management and operating contracts, 
as defined at 48 CFR subpart 17.6. The FAR and other parts of the DEAR 
apply to management and operating contracts. See 970.5200 for guidance 
regarding which provisions and clauses (from FAR, part 970, or other 
parts of the DEAR) to include in management and operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36370, July 22, 2009; 
75 FR 68219, Nov. 5, 2010]

[[Page 454]]



Sec. 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 970.0309 corresponds with material contained 
in 48 CFR subpart 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).

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68219, Nov. 5, 2010]

  Subpart 970.03_Improper Business Practices and Personal Conflicts of 
                                Interest



Sec. 970.0309  Whistleblower Protection of Contractor Employees.



Sec. 970.0309-1  Applicability.

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

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36370, July 22, 2009]



Sec. 970.0370  Management Controls and Improvements.



Sec. 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 the Department of Energy (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 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; and
    (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.
    (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

[[Page 455]]

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 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.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36370, July 22, 2009]



Sec. 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.



Sec. 970.0371  Conduct of employees of DOE management and operating 
          contractors.



Sec. 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.



Sec. 970.0371-2  Applicability.

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



Sec. 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.



Sec. 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.



Sec. 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; internal DOE decisions; policy 
development; and knowledge of selections of contractors or 
subcontractors in advance of official announcement.



Sec. 970.0371-6  Incompatibility between regular duties and private 
          interests.

    (a) 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

[[Page 456]]

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.
    (b) 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.



Sec. 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.



Sec. 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. As 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.



Sec. 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. 
The approval authority of the Secretary of Energy required in paragraph 
(c) may not be delegated. In paragraph (a) the words ``and managerial 
personnel (see 970.5245-1(j))'' may be inserted after ``(see 952.215-
70)''.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36370, July 22, 2009]

[[Page 457]]

                  Subpart 970.04_Administrative Matters



Sec. 970.0404  Safeguarding classified information.



Sec. 970.0404-1  Definitions.

    Access Authorization means an administrative determination that an 
individual is eligible for access to classified information or is 
eligible for access to, or control over, special nuclear material.
    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 
12958, Classified National Security Information, April 17, 1995, as 
amended, 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.
    Facility Clearance means an administrative determination that a 
facility is eligible to access, produce, use or store classified 
information or special nuclear material.
    Restricted Data means all data concerning design, manufacture, or 
utilization of atomic weapons; the production of special nuclear 
material; or the use of special nuclear material in the production of 
energy; but shall not include data declassified or removed from the 
Restricted Data category pursuant to section 142 of the Atomic Energy 
Act of 1954, as amended, (42 U.S.C. 2162).

[65 FR 81009, Dec. 22, 2000, as amended at 67 FR 14878, Mar. 28, 2002; 
74 FR 36370, July 22, 2009]



Sec. 970.0404-2  General.

    (a) Guidance regarding the National Industrial Security Program as 
implemented by the Department of Energy (DOE) may be found at subpart 
904.4, Safeguarding Classified Information Within Industry. Additional 
information concerning contractor ownership when national security or 
atomic energy information is involved may be found at subpart 904.70. 
Information regarding contractor ownership involving national security 
program contracts may be found at subpart 904.71.
    (b) Executive Order 12333, United States Intelligence Activities, 
provides for the organization and control of United States foreign 
intelligence and counterintelligence activities. DOE has established a 
counterintelligence program subject to this Executive Order which is 
described in DOE Order 475.1, Counterintelligence Program, or its 
successor. 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.
    (c) For DOE management and operating contracts and other contracts 
designated by the Senior Procurement Executive, or designee, the clause 
entitled, ``Conditional Payment of Fee, Profit, and Other Incentives--
Facility Management Contracts,'' implements the requirements of section 
234B of the Atomic Energy Act (see 904.402(c)(1)) for the use of a 
contract clause that provides for an appropriate reduction in the fee or 
amount paid to the contractor under the contract in the event of a 
violation by the contractor or any contractor employee of any rule, 
regulation, or order relating to the safeguarding or security of 
Restricted Data or other classified information. The clause, in part, 
provides for reductions in the amount of fee, profit, or share of cost 
savings that is otherwise earned by the contractor for performance 
failures relating to the safeguarding of Restricted Data and other 
classified information.

[67 FR 14878, Mar. 28, 2002, as amended at 68 FR 68781, Dec. 10, 2003; 
74 FR 36370, 36378, July 22, 2009; 75 FR 68219, Nov. 5, 2010]

[[Page 458]]



Sec. 970.0404-3  Responsibilities of contracting officers.

    (a) 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.
    (b) The contracting officer shall refer to subpart 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.

[65 FR 81009, Dec. 22, 2000, as amended at 67 FR 14878, Mar. 28, 2002; 
74 FR 36371, July 22, 2009]



Sec. 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 904.404 and 904.7103 for 
the prescription of solicitation provisions and contract clauses 
relating to safeguarding classified information and foreign ownership, 
control, or influence over contractors.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]



Sec. 970.0407  Contractor records retention.



Sec. 970.0407-1  Applicability.



Sec. 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.



Sec. 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 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.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]



Sec. 970.0407-1-3  Contract clause.

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

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]



Sec. 970.0470  Department of Energy Directives.



Sec. 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

[[Page 459]]

requirements in the Directives Program 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 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.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 23127, May 18, 2009; 74 
FR 36371, July 22, 2009]



Sec. 970.0470-2  Contract clause.

    The contracting officer shall insert the clause at 970.5204-2, Laws, 
Regulations, and DOE Directives, in management and operating contracts. 
The contracting officer may modify the clause to indicate the location 
in the contract of List A, List B, or both.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]

        Subpart 970.08_Required sources of supplies and services



Sec. 970.0801  Excess personal property.



Sec. 970.0801-2  Policy.

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

[74 FR 36371, July 22, 2009]



Sec. 970.0808  Acquisition of printing and related supplies.



Sec. 970.0808-00  Scope.

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

[65 FR 81009, Dec. 22, 2000. Redesignated at 74 FR 36371, July 22, 2009]



Sec. 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.



Sec. 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



Sec. 970.0905  Organizational and consultant conflicts of interest.

    Management and operating contracts shall contain an organizational 
conflict of interest clause substantially similar to the clause at 
952.209-72, Organizational Conflicts of Interest, and which is 
appropriate to the statement of work of the individual contract. In 
addition,

[[Page 460]]

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 restraints 
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.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]



Sec. 970.0970  Performance guarantees.



Sec. 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) Department of Energy (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.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]



Sec. 970.0970-2  Solicitation provision.

    The contracting officer shall insert the provision at 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.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]

                 Subpart 970.11_Describing Agency Needs



Sec. 970.1100  Policy.



Sec. 970.1100-1  Performance-based contracting.

    (a) It is the policy of the Department of Energy (DOE) to use, to 
the maximum extent practicable, performance-based contracting methods in 
its management and operating contracts. The Office of Federal 
Procurement Policy's Seven Steps to Performance-Based Acquisition 
located at Web site http://www.acquisition.gov/comp/seven--steps/
home.html 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

[[Page 461]]

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.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]



Sec. 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.



Sec. 970.1103-4  Contract clause.

    Insert the clause at 48 CFR 52.211-5, Material Requirements, in 
solicitations and contracts.



Sec. 970.1170  Work authorization.



Sec. 970.1170-1  Policy.

    Each contract for the management and operation of a DOE site or 
facility, and other contracts designated by the DOE or the National 
Nuclear Security Administration (NNSA) Senior Procurement Executive, 
must contain a scope of work section that describes, in general terms, 
work planned and/or required to be performed. Work to be performed under 
the contract shall be assigned through the use of a work authorization 
to control individual work activities performed within the scope of 
work. Work authorizations must be issued prior to the commencement of 
the work and incurrence of any costs.

[72 FR 29434, May 29, 2007, as amended at 74 FR 36371, July 22, 2009]



Sec. 970.1170-2  Contract provision.

    The Contracting Officer shall insert the clause at 970.5211-1, Work 
authorization, in each solicitation and contract for the management and 
operation of a DOE site or facility and in other contracts designated by 
the DOE or NNSA Senior Procurement Executive.

[72 FR 49434, May 29, 2007, as amended at 74 FR 36371, 36378, July 22, 
2009]

                Subpart 970.15_Contracting by Negotiation



Sec. 970.1504  Contract pricing.



Sec. 970.1504-1  Price analysis.



Sec. 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

[[Page 462]]

be applied to other contracts as determined by the Senior Procurement 
Executive, or designee.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36378, July 22, 2009]



Sec. 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 
Senior 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 Senior 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 970.1504-
1-1, and the fee amount targeted for negotiation, if less, with the 
Senior 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 Senior 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 
970.1504-1-4.
    (i)(1) In addition to other performance requirements specified in 
the contract, DOE management and operating contractors and other 
contractors designated by the Senior Procurement Executive, or designee, 
are subject to performance requirements relating to: environment, 
safety, and health (ES&H), including worker safety and health (WS&H); 
and safeguarding of Restricted Data and other classified information. 
Performance requirements relating to ES&H will be set forth in the

[[Page 463]]

contract's ES&H terms and conditions, including a DOE approved 
Integrated Safety Management System (ISMS), or similar document. As 
applicable, performance requirements relating to the safeguarding of 
Restricted Data and other classified information will be set forth in 
the clauses of the contract entitled ``Security'' and ``Laws, 
Regulations, and DOE Directives,'' as well as in other terms and 
conditions that prescribe requirements for the safeguarding of 
Restricted Data and other classified information.
    (2) If the contractor does not meet the performance requirements of 
the contract relating to ES&H or to the safeguarding of Restricted Data 
and other classified information, otherwise earned fee, fixed fee, 
profit, or share of cost savings may be unilaterally reduced by the 
contracting officer in accordance with the clause entitled ``Conditional 
Payment of Fee, Profit, and Other Incentives--Facility Management 
Contracts.''
    (3) The clause entitled ``Conditional Payment of Fee, Profit, and 
Other Incentives--Facility Management Contracts,'' provides for 
reductions of earned fee, fixed fee, profit, or share of cost savings 
under the contract depending upon the severity of the contractor's 
performance failure relating to ES&H requirements and, if applicable, 
relating to the safeguarding of Restricted Data and other classified 
information. When reviewing performance failures that would otherwise 
warrant a potential reduction of earned fee, fixed fee, profit, or share 
of cost savings, the contracting officer must consider mitigating 
factors that may warrant a reduction below the applicable range 
specified in the clause. Some of the mitigating factors that must be 
considered are included in the clause.
    (4) The contracting officer must obtain the concurrence of the 
cognizant Program Secretarial Officer
    (i) Prior to effecting any reduction of fee or profit in accordance 
with the terms and conditions of the clause entitled, ``Conditional 
Payment of Fee, Profit, and Other Incentives--Facility Management 
Contracts;'' and
    (ii) For determinations that no reduction of fee or profit is 
warranted for a particular performance failure(s) that would otherwise 
be subject to a reduction.

[65 FR 81009, Dec. 22, 2000, as amended at 68 FR 68781, Dec. 10, 2003; 
74 FR 36371, 36378, July 22, 2009]



Sec. 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 (including subpart 
970.31), 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 Senior Procurement Executive, or designee.
    (2) Except as specified in 970.1504-1-3(c)(3), the maximum total 
amount of fee shall be calculated in accordance with 970.1504-1-5 or 
970.1504-1-9, as appropriate. The total amount of fee

[[Page 464]]

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 
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 970.5215-3, Conditional Payment of 
Fee, Profit, and Other Incentives--Facility Management Contracts, 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 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 970.1504-1-5 or 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 
Senior 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 Senior 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.

[65 FR 81009, Dec. 22, 2000, as amended at 68 FR 68781, Dec. 10, 2003; 
74 FR 36371, 36378, July 22, 2009]



Sec. 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 subpart 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 970.1504-1-3(c)(2) may only be used

[[Page 465]]

when approved in advance by the Senior 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 Senior 
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 Senior Procurement Executive, or designee, 
except as permitted in 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 subpart 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 
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

[[Page 466]]

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.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, 36378, July 22, 
2009; 75 FR 68220, Nov. 5, 2010]



Sec. 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 
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).

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]



Sec. 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

[[Page 467]]

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          Fee         Incr.
        Fee base (dollars)          (dollars)    (percent)    (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          Fee         Incr.
        Fee base (dollars)          (dollars)    (percent)    (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         0.58
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          Fee         Incr.
        Fee base (dollars)          (dollars)    (percent)    (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
------------------------------------------------------------------------


[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]



Sec. 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

[[Page 468]]

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 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 independent research and development cost or 
bid and proposal expenses that may be approved under the contract;
    (9) Any cost of work funded with uncosted balances previously 
included in a fee base of this or any other contract performed by the 
contractor;
    (10) Cost of rework attributable to the contractor; and
    (11) State taxes.
    (c) In calculating the annual fee amounts associated with the 
Production, Research and Development, or Environmental Management work 
to be performed, the fee base is to be allocated to the category 
reflecting the work to be performed and the appropriate fee schedule 
utilized.
    (d) The portion of the fee base associated with the Production, 
Research and Development, or Environmental Management work to be 
performed and the associated schedules in this part are not intended to 
reflect the portion of the fee base or related compensation for unusual 
architect-engineer, construction services, or special equipment provided 
by the management and operating contractor. Architect-engineer and 
construction services are normally covered by special agreements based 
on the policies applying to architect-engineer or construction 
contracts. Fees paid for such services shall be calculated using the 
provisions of 915.404-4-71-5 relating to architect-engineer or 
construction fees and shall be in addition to the operating fees 
calculated for the Production, Research and Development, or 
Environmental Management work to be performed. Special equipment 
purchases shall be addressed in accordance with the provisions of 
970.1504-1-8 relating to special equipment.
    (e) No schedule set forth in 915.404-4-71-5 or 970.1504-1-6 shall be 
used more than once in the determination of the fee amount for an annual 
period, unless prior approval of the Senior Procurement Executive, or 
designee, is obtained.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, 36378, July 22, 
2009]



Sec. 970.1504-1-8  Special equipment purchases.

    (a) Special equipment is sometimes procured in conjunction with 
management and operating contracts. When a contractor procures special 
equipment, the DOE negotiating official shall determine separate fees 
for the equipment which shall not exceed the maximum fee allowable as 
established using the schedule in 915.404-4-71-5(h).
    (b) In determining appropriate fees, factors such as complexity of 
equipment, ratio of procurement transactions to volume of equipment to 
be purchased and completeness of services should be considered. Where 
possible, the reasonableness of the fees should be checked by their 
relationship to actual costs of comparable procurement services.
    (c) For purposes of this subsection, special equipment is equipment 
for which the purchase price is of such a magnitude compared to the cost 
of installation as to distort the amount of technical direction and 
management effort required of the contractor. Special equipment is of a 
nature that requires less management attention. When a contractor 
procures special equipment, the DOE negotiating official shall determine 
separate fees for the equipment using the schedule in 915.404-4-71-5(h). 
The determination of specific items of equipment in this category 
requires application of judgment and careful study of the circumstances 
involved in each project. This category of equipment would generally 
include:
    (1) Major items of prefabricated process or research equipment; and
    (2) Major items of preassembled equipment such as packaged boilers, 
generators, machine tools, and large electrical equipment. In some 
cases, it

[[Page 469]]

would also include special apparatus or devices such as reactor vessels 
and reactor charging machines.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, July 22, 2009]



Sec. 970.1504-1-9  Special considerations: Cost-plus-award-fee.

    (a) When a management and operating contract is to be awarded on a 
cost-plus-award-fee basis, several special considerations are 
appropriate.
    (b) All annual performance incentives identified under these 
contracts are funded from the annual total available fee, which consists 
of a base fee amount (which may be zero) and a performance fee amount 
(which typically will consist of an incentive fee component for 
objective performance requirements, an award fee component for 
subjective performance requirements, or both).
    (c) The annual total available fee for the contract shall equal the 
product of the fee(s) that would have been calculated for an annual 
fixed fee contract and the classification factor(s) most appropriate for 
the facility/task. If more than one fee schedule is applicable to the 
contract, the annual total available fee shall be the sum of the 
available fees derived proportionately from each fee schedule; 
consideration of significant factors applicable to each fee schedule; 
and application of a Classification Factor(s) most appropriate for the 
work.
    (d) Classification Factors applied to each Facility/Task Category 
are:

------------------------------------------------------------------------
                                                          Classification
                 Facility/task category                       factor
------------------------------------------------------------------------
A.......................................................            3.0
B.......................................................            2.5
C.......................................................            2.0
D.......................................................           1.25
------------------------------------------------------------------------

    (e) The contracting officer shall select the Facility/Task Category 
after considering the following:
    (1) Facility/Task Category A. The main focus of effort performed is 
related to--
    (i) The manufacture, assembly, retrieval, disassembly, or disposal 
of nuclear weapons with explosive potential;
    (ii) The physical cleanup, processing, handling, or storage of 
nuclear radioactive or toxic chemicals with consideration given to the 
degree the nature of the work advances state of the art technologies in 
cleanup, processing or storage operations and/or the inherent difficulty 
or risk of the work is significantly demanding when compared to similar 
industrial/DOE settings (i.e., nuclear energy processing, industrial 
environmental cleanup);
    (iii) Construction of facilities such as nuclear reactors, atomic 
particle accelerators, or complex laboratories or industrial units 
especially designed for handling radioactive materials;
    (iv) Research and development directly supporting paragraphs 
(e)(1)(i), (ii), or (iii) of this subsection and not conducted in a 
laboratory, or
    (v) As designated by the Senior Procurement Executive, or designee. 
(Classification factor 3.0)
    (2) Facility/Task Category B. The main focus of effort performed is 
related to--
    (i) The safeguarding and maintenance of nuclear weapons or nuclear 
material;
    (ii) The manufacture or assembly of nuclear components;
    (iii) The physical cleanup, processing, handling, or storage of 
nuclear radioactive or toxic chemicals, or other substances which pose a 
significant threat to the environment or the health and safety of 
workers or the public, if the nature of the work uses state of the art 
technologies or applications in such operations and/or the inherent 
difficulty or risk of the work is more demanding than that found in 
similar industrial/DOE settings (i.e., nuclear energy, chemical or 
petroleum processing, industrial environmental cleanup);
    (iv) The detailed planning necessary for the assembly/disassembly of 
nuclear weapons/components;
    (v) Construction of facilities involving operations requiring a high 
degree of design layout or process control;
    (vi) Research and development directly supporting paragraphs 
(e)(2)(i), (ii), (iii), (iv) or (v) of this subsection and not conducted 
in a laboratory; or
    (vii) As designated by the Senior Procurement Executive, or 
designee. (Classification factor 2.5)
    (3) Facility/Task Category C. The main focus of effort performed is 
related to--
    (i) The physical cleanup, processing, or storage of nuclear 
radioactive or

[[Page 470]]

toxic chemicals if the nature of the work uses routine technologies in 
cleanup, processing or storage operations and/or the inherent difficulty 
or risk of the work is similar to that found in similar industrial/DOE 
settings (i.e., nuclear energy, chemical processing, industrial 
environmental cleanup);
    (ii) Plant and facility maintenance;
    (iii) Plant and facility security (other than the safeguarding of 
nuclear weapons and material);
    (iv) Construction of facilities involving operations requiring 
normal processes and operations; general or administrative service 
buildings; or routine infrastructure requirements;
    (v) Research and development directly supporting paragraphs 
(e)(3)(i), (ii), (iii) or (iv) of this subsection and not conducted in a 
laboratory; or
    (vi) As designated by the Senior Procurement Executive, or designee. 
(Classification factor 2.0)
    (4) Facility/Task Category D. The main focus of the effort performed 
is research and development conducted at a laboratory. (Classification 
factor 1.25)
    (f) Where the Senior Procurement Executive, or designee, has 
approved a base fee, the Classification Factors shall be reduced, as 
approved by the Senior Procurement Executive, or designee.
    (g) Any risks which are indemnified by the Government (for example, 
by the Price-Anderson Act) will not be considered as risk to the 
contractor.
    (h) All management and operating contracts awarded on a cost-plus-
award-fee basis shall set forth in the contract, or the Performance 
Evaluation and Measurement Plan(s) required by the contract clause at 
970.5215-1, Total Available Fee: Base Fee Amount and Performance Fee 
Amount, a site specific method of rating the contractor's performance of 
the contract requirements and a method of fee determination tied to the 
method of rating.
    (i) Prior approval of the Senior Procurement Executive, or designee, 
is required for an annual total available fee amount exceeding the 
guidelines in paragraph (c) of this subsection.
    (j) DOE Operations/Field Office Managers must ensure that all 
important areas of contract performance are specified in the contract or 
Performance Evaluation and Measurement Plan(s), even if such areas are 
not assigned specific weights or percentages of available fee.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36371, 36378, July 22, 
2009]



Sec. 970.1504-1-10  Special considerations: Fee limitations.

    In situations where the objective performance incentives are of 
unusual difficulty or where the successful completion of the performance 
incentives would provide extraordinary value to the Government, fees in 
excess of those allowed under 970.1504-1-5 and 970.1504-1-9 may be 
allowed with the approval of the Senior Procurement Executive, or 
designee. Requests to allow fees in excess of those provided under other 
provisions of this fee policy must be accompanied by a written 
justification with detailed supporting rationale as to how the specific 
circumstances satisfy the two criteria listed in this subsection.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, 36378, July 22, 
2009]



Sec. 970.1504-1-11  Documentation.

    The contracting officer shall tailor the documentation of the 
determination of fee prenegotiation objective based on 48 CFR 15.406-1, 
Prenegotiation objectives, and the determination of the negotiated fee 
in accordance with 48 CFR 15.406-3, Documenting the negotiation. The 
contracting officer shall include as part of the documentation: the 
rationale for the allocation of cost and the assignment of Facility/Task 
Categories; a discussion of the calculations described in 970.1504-1-5; 
and discussion of any other relevant provision of this subsection.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.1504-2  Price negotiation.

    (a) Management and operating contract prices (fee) and DOE 
obligations to support contract performance shall be governed by:
    (1) The level of activity authorized and the amount of funds 
appropriated

[[Page 471]]

for DOE approved programs by specific program legislation;
    (2) Congressional budget and reporting limitations;
    (3) The amount of funds apportioned to DOE;
    (4) The amount of obligation authority allotted to program officials 
and Approved Funding Program limitations; and
    (5) The amount of funds actually available to the DOE operating 
activity as determined in accordance with applicable financial 
regulations and directives.
    (b) Funds shall be obligated and made available by contract 
provision or modification after the funds become available for 
obligation for payment to support performance of DOE approved projects, 
tasks, work authorizations, or services.
    (c) Contractor expenditures shall be limited to the overall amount 
of funds available and obligated on the contract. As prescribed at 
970.3270(b), the clause at 970.5232-4, Obligation of Funds, is used for 
this purpose.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.1504-3  Documentation.



Sec. 970.1504-3-1  Cost or pricing data.

    (a) The certification requirements of 48 CFR 15.406-2 are not 
applied to DOE cost-reimbursement management and operating contracts.
    (b) The contracting officer shall ensure that management and 
operating contractors and their subcontractors obtain cost or pricing 
data prior to the award of a negotiated subcontract or modification of a 
subcontract in accordance with 48 CFR 15.406-2, and incorporate 
appropriate contract provisions similar to those set forth at 48 CFR 
52.215-10 and 48 CFR 52.215-11 that provide for the reduction of a 
negotiated subcontract price by any significant amount that the 
subcontract price was increased because of the submission of defective 
cost or pricing data by a subcontractor at any tier.
    (c) The clauses at 48 CFR 52.215-12 and 48 CFR 52.215-13 shall be 
included in management and operating contracts.



Sec. 970.1504-4  Special cost or pricing areas.



Sec. 970.1504-4-1--970.1504-4-3  [Reserved]



Sec. 970.1504-5  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert the clause at 970.5215-1, 
Total Available Fee: Base Fee Amount and Performance Fee Amount, in 
management and operating contracts, and other contracts determined by 
the Senior Procurement Executive, or designee, that include cost-plus-
award-fee arrangements.
    (1) The contracting officer shall include the clause with its 
Alternate I when the award fee cycle consists of two or more evaluation 
periods.
    (2) The contracting officer shall include the clause with its 
Alternate II when the award fee cycle consists of one evaluation period.
    (3) The contracting officer shall include the clause with its 
Alternate III when the DOE Operations/Field Office Manager, or designee, 
requires the contractor to submit a self-assessment.
    (4) The contracting officer shall include the clause with its 
Alternate IV when the DOE Operations/Field Office Manager, or designee, 
permits the contractor to submit a self-assessment at the contractor's 
option.
    (b)(1) The contracting officer shall insert the clause at 970.5215-
3, Conditional Payment of Fee, Profit, and Other Incentives--Facility 
Management Contracts, in all DOE management and operating contracts and 
other contracts determined by the Senior Procurement Executive, or 
designee.
    (2) The contracting officer shall include the clause with its 
Alternate I in contracts that do not contain the clause at 952.204-2, 
Security.
    (3) The contracting officer shall include the clause with its 
Alternate II in contracts that are awarded on a cost-plus-award-fee 
basis. The contracting officer should consider including the clause with 
its Alternate II in contracts that are awarded on a multiple fee basis 
if the cost-plus-award-fee portion of the contract is significant.

[[Page 472]]

    (c) The contracting officer shall insert the clause at 970.5215-4, 
Cost Reduction, in management and operating contracts, and other 
contracts determined by the Senior Procurement Executive, or designee, 
if cost savings programs are contemplated.
    (d) The Contracting officer shall insert the provision at 970.5215-
5, Limitation on Fee, in solicitations for management and operating 
contracts, and other contracts determined by the Senior Procurement 
Executive, or designee.

[65 FR 81009, Dec. 22, 2000, as amended at 69 FR 68781, Dec. 10, 2003; 
71 FR 16243, Mar. 31, 2006; 74 FR 36372, 36378, July 22, 2009]

               Subpart 970.17_Special Contracting Methods



Sec. 970.1706  Management and operating contracts.



Sec. 970.1706-1  Award, renewal, and extension.

    (a) Contract term. Effective work performance under a management and 
operating contract is facilitated by the use of a relatively long 
contract term of up to ten (10) years. Accordingly, management and 
operating contracts shall provide for a basic contract term not to 
exceed five (5) years and may include an option(s) to extend the term 
for additional periods; provided, that no one option period exceeds five 
(5) years in duration and the total term of the contract, including any 
options exercised, does not exceed ten (10) years. The specific term of 
the base period and of any options periods shall be determined at the 
time of the authorization to compete or extend the contract. The term 
``option'' as used in this subpart means a unilateral right in the 
contract by which the Government can extend the term of the contract. 
Accordingly, except as may be provided for through the inclusion of an 
option(s) in the contract to extend the term, any extension to continue 
the contract with the incumbent contractor beyond its term shall only 
occur when such extension can be justified under one of the statutory 
authorities identified in 48 CFR 6.302 and when authorized by the Head 
of the Agency.
    (b) Exercise of option. As part of the review required by 48 CFR 
17.605(b), the contracting officer shall assess whether competing the 
contract will produce a more advantageous offer than exercising the 
option. The incumbent contractor's past performance under the contract, 
the extent to which performance-based management contract provisions are 
present, or can be negotiated into, the contract, and the impact of a 
change in a contractor on the Department's discharge of its programs are 
considerations that shall be addressed in the contracting officer's 
decision that the exercise of the option is in the Government's best 
interest. The contracting officer's decision shall be approved by the 
Senior Procurement Executive and the cognizant Assistant Secretary(s).
    (c) Conditional Authorization of Non-competitive Extension Made 
Pursuant to Authority Under CICA. Authorization to extend a management 
and operating contract by the Head of the Agency shall be considered 
conditional upon the successful negotiation of the contract to be 
extended in accordance with the Department's negotiation objectives. The 
Head of the Contracting Activity shall advise the Senior Procurement 
Executive no later than 6 months after receipt of the conditional 
authorization as to whether the Department's objectives will be met and, 
if not, the contracting activity's plans for competing the requirement.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36378, July 22, 2009]



Sec. 970.1706-2  Contract clause.

    The contracting officer shall insert the clause at 48 CFR 52.217-9, 
Option to Extend the Term of the Contract, in all management and 
operating contracts when the inclusion of an option is appropriate.



Sec. 970.1707  Work for others.



Sec. 970.1707-1  Scope.

    Pursuant to Section 33 of the Atomic Energy Act of 1954, as amended 
(42 U.S.C. 2053), DOE is authorized to make its facilities available to 
other Federal and non-Federal entities (sponsors) for

[[Page 473]]

the conduct of certain research and development and training activities. 
Pursuant to the Economy Act of 1932, as amended (31 U.S.C. 1535), or 
other applicable authority, other Federal entities may request DOE to 
conduct work. DOE has implemented these and other statutory authorities 
and requirements in its Work for Others Program. DOE's internal 
procedures governing the Work for Others Program are described in DOE 
Order 481.1C, WORK FOR OTHERS (NON-DEPARTMENT OF ENERGY FUNDED WORK).

[69 FR 75003, Dec. 15, 2004]



Sec. 970.1707-2  Purpose.

    The purpose of DOE's Work for Others Program is to--
    (a) Provide access for non-DOE entities to highly specialized or 
unique DOE facilities, services, or technical expertise, when private 
facilities are inadequate;
    (b) Increase research and development interactions among DOE's 
management and operating contractors and industry in order to transfer 
DOE technologies to industry for further development or 
commercialization;
    (c) Maintain facility core competencies;
    (d) Enhance the science and technology capabilities at DOE 
facilities; and
    (e) Provide assistance to other Federal agencies and non-Federal 
entities in accomplishing goals that may otherwise be unattainable and 
to avoid the possible duplication of effort at Federal facilities.

[69 FR 75003, Dec. 15, 2004, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.1707-3  Terms governing work for others.

    (a) DOE's internal review and approval procedural requirements for 
individual work for others agreements are set forth in DOE Order 481.1C 
(as supplemented by DOE Manual 481.1-1A for agreements with non-Federal 
entities), which may be amended from time to time, and such other 
guidance as may be issued by DOE. Contracting officers must ensure that 
the contractor's procedures for its operations are consistent with DOE's 
procedural requirements.
    (b) A contractor may perform work for other Federal or non-Federal 
sponsors only if--
    (1) The contractor is authorized by contract clause to perform such 
work;
    (2) The work is not directly funded by DOE appropriations and is 
fully reimbursed by the sponsor;
    (3) The DOE Contracting Officer or authorized designee approves the 
work in advance; and
    (4) The work is performed in accordance with DOE policies, 
procedures and directives applicable to the contract.
    (c) Contracting officers must ensure that the requesting Federal 
entity certifies that--
    (1) The interagency agreement with DOE complies with the Economy Act 
of 1932 (31 U.S.C. 1535) and other applicable statutory authorities and 
48 CFR 6.002, which prohibits the use of an Interagency Agreement for 
the purpose of avoiding the competition requirements of the Federal 
Acquisition Regulation; and
    (2) The work to be performed will not place the DOE contractor in 
direct competition with the domestic private sector.

[69 FR 75003, Dec. 15, 2004, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.1707-4  Contract clause.

    Insert the clause at 970.5217-1, Work for Others Program (Non-DOE 
Funded Work), in any contract that may involve work under the Work for 
Others Program, pursuant to 970.1707-3(b).

[69 FR 75003, Dec. 15, 2004]

                 Subpart 970.19_Small Business Programs



Sec. 970.1907  The Small Business Subcontracting Program.



Sec. 970.1907-4  Subcontracting plan requirements.

    Pursuant to the clause at 48 CFR 52.219-9, Small Business 
Subcontracting Plan, which is required for all management and operating 
contracts, each management and operating contract shall include a 
subcontracting plan which is effective for the term of

[[Page 474]]

the contract. Goals for the contract shall be negotiated annually when 
revised funding levels are determined. The plan should include 
provisions for revising the goals or any other sections of the plan. 
Such revisions shall be in writing, approved by the contracting officer, 
and shall be specifically made a material part of the contract.

[65 FR 81009, Dec. 22, 2000. Redesignated at 75 FR 68219, Nov. 5, 2010]

              Subpart 970.22_Application of Labor Policies



Sec. 970.2200  Scope of subpart.

    This subpart prescribes Department of Energy (DOE) labor policies 
pertaining to the award and administration of management and operating 
contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.2201  Basic labor policies.



Sec. 970.2201-1  Labor relations.



Sec. 970.2201-1-1  General.

    Contracting officers shall, in appropriate circumstances, follow the 
requirements in 48 CFR subpart 22.1, as supplemented in this section, in 
the award and administration of management and operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 23126, May 18, 2009; 75 
FR 68220, Nov. 5, 2010]



Sec. 970.2201-1-2  Policies.

    (a) The extent of Government ownership of the nation's energy plant 
and materials, and the overriding concerns of national defense and 
security, impose special conditions on personnel and labor relations in 
the energy program. Such special conditions include the need for 
continuity of vital operations at DOE installations; retention by DOE of 
absolute authority on all questions of security; and DOE review of labor 
expenses under management and operating contracts as a part of its 
responsibility for assuring judicious expenditure of public funds. It is 
the intent of DOE that personnel and labor policies throughout the 
energy program reflect the best experience of American industry in 
aiming to achieve the type of stable labor-management relations that are 
essential to the proper development of the energy program. The following 
enunciates the principles upon which the DOE policy is based:
    (1) Employment standards. (i) Management and operating contractors 
are expected to bring experienced, proven personnel from their private 
operations to staff key positions on the contract and to recruit other 
well-qualified personnel as needed. Such personnel should be employed 
and treated during employment without discrimination by reason of race, 
color, religion, sex, age, disability, or national origin. Contractors 
shall be required to take affirmative action to achieve these 
objectives.
    (ii) The Contractor must conduct a thorough review, as defined at 
904.401, of an uncleared applicant's or uncleared employee's background, 
and test the individual for illegal drugs, as part of its determination 
to select that individual for a position requiring a DOE access 
authorization.
    (A) A review must-- Verify an uncleared applicant's or uncleared 
employee's educational background, including any high school diploma 
obtained within the past five years, and degrees or diplomas granted by 
an institution of higher learning; contact listed employers for the last 
three years and listed personal references; conduct local law 
enforcement checks when such checks are not prohibited by state or local 
law or regulation and when the uncleared applicant or uncleared employee 
resides in the jurisdiction where the contractor is located; and conduct 
a credit check and other checks as appropriate.
    (B) Contractor reviews are not required for an applicant for DOE 
access authorization who possesses a current access authorization from 
DOE or another federal agency, or whose access authorization may be 
reapproved without a federal background investigation pursuant to 
Executive Order 12968, Access to Classified Information (August 4, 
1995), Sections 3.3(c) and (d).
    (C) In collecting and using this information to make a determination 
as to whether it is appropriate to select an

[[Page 475]]

uncleared applicant or uncleared employee for a position requiring an 
access authorization, the contractor must comply with all applicable 
laws, regulations, and Executive Orders, including those--
    (1) Governing the processing and privacy of an individual's 
information by employers, such as the Fair Credit Reporting Act, 
Americans with Disabilities Act (ADA), and Health Insurance Portability 
and Accountability Act; and
    (2) Prohibiting discrimination in employment, such as under the ADA, 
Title VII and the Age Discrimination in Employment Act, including with 
respect to pre- and post-offer of employment disability related 
questioning.
    (iii) In addition to a review, each candidate for a DOE access 
authorization must be tested to demonstrate the absence of any illegal 
drug, as defined in 10 CFR 707.4. All positions requiring access 
authorizations are deemed testing designated positions in accordance 
with 10 CFR part 707. All employees possessing access authorizations are 
subject to applicant, random or for cause testing for use of illegal 
drugs. DOE will not process candidates for a DOE access authorization 
unless their tests confirm the absence of any illegal drug.
    (iv) When an uncleared applicant or uncleared employee is hired 
specifically for a position that requires a DOE access authorization, 
the contractor shall not place that individual in that position prior to 
the access authorization being granted by DOE, unless an approval has 
been obtained from the contracting officer, acting in consultation for 
these purposes with the head of the cognizant local security office. If 
an uncleared employee is placed in that position prior to an access 
authorization being granted by the contracting officer, the uncleared 
employee may not be afforded access to classified information or matter 
or special nuclear material (in categories requiring access 
authorization) until the contracting officer notifies the employer that 
an access authorization has been granted.
    (v)(A) The contractor must furnish to the head of the cognizant 
local DOE Security Office, in writing, the following information 
concerning each uncleared applicant or uncleared employee who is 
selected for a position requiring an access authorization--
    (1) The date(s) each review was conducted;
    (2) Each entity contacted that provided information concerning the 
individual;
    (3) A certification that the review was conducted in accordance with 
all applicable laws, regulations, and Executive Orders, including those 
governing the processing and privacy of an individual's information 
collected during the review;
    (4) A certification that all information collected during the review 
was reviewed and evaluated in accordance with the contractor's personnel 
policies; and
    (5) The results of the test for illegal drugs.
    When a DOE access authorization will be required, the aforementioned 
review must be conducted and the required information forwarded to DOE 
before a request is made to DOE to process the individual for an access 
authorization.
    (vi) Management and operating contractors and other contractors 
operating DOE facilities shall include the requirements set forth in 
this subsection in subcontracts (appropriately modified to identify the 
parties) wherein subcontract employees will be required to hold DOE 
access authorizations in order to perform on-site duties, such as 
protective force operations.
    (2) Security. On all matters of security at its facilities, DOE 
retains absolute authority and neither the regulations and policies 
pertaining to security, nor their administration, are matters for 
collective bargaining between the contractor's management and labor. 
Insofar as DOE security regulations affect the collective bargaining 
process, the security policies and regulations will be made known to 
both parties. To the fullest extent feasible, DOE will consult with 
representatives of the contractor's management and labor when 
formulating security regulations and policies that may affect the 
collective bargaining process.

[[Page 476]]

    (3) Wages, salaries, and employee benefits. (i) Wages, salaries, and 
employee benefits shall be administered in a manner designated to adapt 
the normal practices and conditions of industry or institutions of 
higher education to the contract work, and to provide for appropriate 
review by DOE. Area practices, valid patterns, and well-established 
commercial or academic practices of the contractors, as appropriate, 
form the criteria for the establishment and adjustment of compensation 
schedules.
    (ii) The aspects of wages, hours, and working conditions which are 
the substance of collective bargaining in normal organized industries 
will be left to the orderly processes of negotiation and agreement 
between DOE contractor management and employee representatives with 
maximum possible freedom from Government interference.
    (4) Employee relations. The handling of employee relations on 
contract work, including such matters as the conduct and discipline of 
the work force and the handling of employee grievances, is part of the 
normal management responsibility of the contractor.
    (5) Collective bargaining. (i) DOE review of collective bargaining 
practices will be premised on the view that management's trusteeship for 
the operation of the Government facilities includes the duty to adopt 
practices which are fundamental to the friendly adjustment of disputes, 
and which experience has shown, promote orderly collective bargaining 
relationships. Practices inconsistent with this view may be objected to 
if not found to be otherwise clearly warranted.
    (ii) Consistent with the policy of assuring continuity of operation 
of vital facilities, all collective bargaining agreements at DOE-owned 
facilities should provide that grievances and disputes involving the 
interpretation or application of the agreement will be settled without 
resorting to strike, lockout, or other interruption of normal 
operations. For this purpose, each collective bargaining agreement 
entered into during the period of performance of this contract should 
provide an effective grievance procedure with arbitration as its final 
step, unless the parties mutually agree upon some other method of 
assuring continuity of operation for the term of the collective 
bargaining agreement.
    (iii) DOE expects its management and operating contractors and the 
unions representing the contractor's employees to cooperate fully with 
the Federal Mediation and Conciliation Service.
    (6) Personnel training. DOE encourages and supports personnel 
training programs aimed at improving work efficiency or developing 
needed skills which are not otherwise obtainable.
    (7) Working conditions. Accident, fire, health, and occupational 
hazards associated with DOE activities will be held to a practical 
minimum level and controlled in the interest of maintenance of health 
and prevention of accidents. Subject to DOE control, contractors shall 
be required to maintain comprehensive continuous preventive and 
protective programs appropriate to the particular activities throughout 
all operations. Appropriate financial protection in case of occupational 
disability must be provided to employees on DOE projects.
    (b) Title to payroll and associated records under certain contracts 
for the management and operation of DOE facilities, and for necessary 
miscellaneous construction incidental to the function of these 
facilities, shall vest in the Government. Such records are to be 
disposed of in accordance with DOE directions. For such contracts, the 
Solicitor of Labor has granted a tolerance from the Department of Labor 
Regulations to omit from the prescribed labor clauses the requirement 
for the retention of payrolls and associated records for a period of 
three years after completion of the contract. Under this tolerance, the 
records retention requirements for all labor clauses in the contract and 
the Fair Labor Standards Act are satisfied by disposal of such records 
in accordance with applicable DOE directives.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 23126, May 18, 2009; 75 
FR 68221, Nov. 5, 2010]



Sec. 970.2201-1-3  Contract clause.

    In addition to the clause at 48 CFR 52.222-1, Notice to the 
Government of

[[Page 477]]

Labor Disputes, the contracting officer shall insert the clause at 
970.5222-1, Collective Bargaining Agreements--Management and Operating 
Contracts, in all management and operating contracts.



Sec. 970.2201-2  Overtime management.



Sec. 970.2201-2-1  Policy.

    Contracting officers shall ensure that management and operating 
contractors manage overtime cost effectively and use overtime only when 
necessary to ensure performance of work under the contract.



Sec. 970.2201-2-2  Contract clause.

    The contracting officer shall insert the clause at 970.5222-2, 
Overtime Management, in management and operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.2204  Labor standards for contracts involving construction.



Sec. 970.2204-1  Statutory and regulatory requirements.



Sec. 970.2204-1-1  Administrative controls and criteria for application 
          of the Davis-Bacon Act in operational or maintenance 
          activities.

    (a) Particular work items falling within one or more of the 
following criteria normally will be classified as non-covered by the 
Davis-Bacon Act, hereinafter referred to in this section as the ``Act.''
    (1) Individual work items estimated to cost $2,000 or less. The 
total dollar amount of the management and operating contract is not a 
factor to be considered and bears no relation to individual work items 
classified as construction, alteration and/or repair, including painting 
and decorating. However, no item of work, the cost of which is estimated 
to be in excess of $2,000, shall be artificially divided into portions 
less than $2,000 for the purpose of avoiding the application of the Act.
    (2) Work and services that are a part of operational and maintenance 
activities or which, being very closely and directly involved therewith, 
are more in the nature of operational activities than construction, 
alteration, and/or repair work. This includes work and services which 
would involve a material risk to continuity of operations, to life or 
property, or to DOE operating requirements, if performed by persons 
other than the contractor's regular production and maintenance forces. 
However, any decision that contracts or work items are non-covered for 
these reasons must be made by the Head of the Contracting Activity 
without power of delegation.
    (3) Assembly, modification, setup, installation, replacement, 
removal, rearrangement, connection, testing, adjustment, and calibration 
of machinery and equipment. However, it is noted that these activities 
are covered if they are part of, or would be a logical part of, the 
construction of a facility, or if construction-type work which is not 
``incidental'' to the overall effort is involved.
    (4) Experimental development of equipment, processes, or devices, 
including assembly, fitting, installation, testing, reworking, and 
disassembly. This refers to equipment, processes, and devices which are 
assembled for the purpose of conducting a test or experiment. The design 
may be only conceptual in character, and professional personnel who are 
responsible for the experiment participate in the assembly. Specifically 
excluded from the category of experimental development are buildings and 
building utility services, as distinguished from temporary connections 
thereto. Also specifically excluded from this category is equipment to 
be used for continuous testing (e.g., a machine to be continuously used 
for testing the tensile strength of structural members).
    (5) Experimental work in connection with peaceful uses of nuclear 
energy. This refers to equipment, processes and devices which are 
assembled and/or set in place and interconnected for the purpose of 
conducting a test or experiment. The nature of the test or experiment is 
such that professional personnel who are responsible for the test or 
experiment and/or data to be derived therefrom must, by necessity, 
participate in the assembly and interconnections. Specifically excluded 
from experimental work are buildings, building utility services, 
structural changes,

[[Page 478]]

drilling, tunneling, excavation, and back-filling work which can be 
performed according to customary drawings and specifications, and 
utility services of modifications to utility services, as distinguished 
from temporary connections thereto. Work in this category may be 
performed in mines or in other locations specifically constructed for 
tests or experiments.
    (6) Emergency work to combat the effects of fire, flood, earthquake, 
equipment failure, accident, or other casualties, and to restart the 
operational activity following the casualty. Work which is not directly 
related to restarting the activity or which involves rebuilding or 
replacement of a structure, structural components, or equipment is 
excluded from this category.
    (7) Decontamination, including washing, scrubbing, and scraping to 
remove contamination; removal of contaminated soil or other material; 
and painting or other resurfacing, provided that such painting or 
resurfacing is an integral part of the decontamination activity and 
performed by the employees of the contractors performing the 
decontamination.
    (8) Burial of contaminated soil waste or contained liquid; however, 
initial preparatory work readying the burial ground for use (e.g., any 
grading or excavating that is a part of initial site preparation, 
fencing, drilling wells for continued monitoring of contamination, 
construction of guard or other office space) is covered. Work performed 
subsequent to burial which involves the placement of concrete or other 
like activity is also covered.
    (b) The classification of a contract as a contract for operational 
or maintenance activities does not necessarily mean that all work and 
activities at the contract location are classifiable as outside coverage 
of the Act since it may be necessary to separate work which should be 
classified as covered. Therefore, the Heads of Contracting Activities 
shall establish and maintain controls for the careful scrutiny of 
proposed work assignments under such contracts to assure that:
    (1) Contractors whose contracts do not contemplate the performance 
of work covered by the Act with the contractor's own forces are neither 
asked nor authorized to perform work within the scope of the Act. If the 
actual work assignments do involve covered work, the contract should be 
modified to include applicable provisions of the Act.
    (2) Where covered work is performed by a contractor whose contract 
contains provisions required by the Act, such work is performed as 
required by law and the contract. After the contractor has been 
informed, as provided in paragraph (b)(3) of this subsection, that 
certain work is covered, the responsibilities of the Head of the 
Contracting Activity to assure compliance is the same as it would be if 
the work were being performed under a separate construction contract.
    (3) Controls provided for above include consideration by the Head of 
the Contracting Activity and the contractor, before work is begun or 
contracted out, of the relation of the Act to the annual programming of 
work; the contractor's work orders; and work contracted out in excess of 
$2,000. The Head of the Contracting Activity may, if consistent with 
DOE's responsibilities as described in this subsection, prescribe from 
time to time classes of work as to which applicability or 
nonapplicability of the Act is clear, for which the Head of the 
Contracting Activity will require no further DOE determination on 
coverage in advance of the work. For all work, controls to be 
established by the Head of the Contracting Activity should provide for 
notification to the contractor before work is begun as to whether such 
work is covered. The Head of the Contracting Activity is responsible for 
submitting to the Wage and Hours Division, Employment Standards 
Administration, Department of Labor, Washington, D.C. 20210, all DOE 
requests for project area or installation wage determinations, or 
individual determinations, or extensions or modification thereto. 
Requests for such determinations shall be made on Standard Form 308, at 
least 30 calendar days before they are required for use in advertising 
for bids or requests for proposals.
    (c) Experimental installations. Within DOE programs, a variety of 
experiments are conducted involving materials, fuels, coolants, and 
processing equipment. Certain types of situations

[[Page 479]]

where tests and experiments have presented coverage questions are 
described as follows:
    (1) Set-ups of device and/or processes. The proving out of 
investigative findings and theories of a scientific and technical nature 
may require the set-up of various devices and/or processes at an early, 
pre-prototype stage of development. These may range from laboratory 
bench size to much larger set-ups. As a rule, these set-ups are made 
within established facilities (normally laboratories), required utility 
connections are made to services provided as a part of the basic 
facilities, and the activity as a whole falls within the functional 
purpose of the facility. Such set-ups are generally not covered. 
However, the erection of structures which are public works is covered if 
construction type work, other than incidental work, is involved. 
Preparatory work for the set-up requiring structural changes or 
modifications of basic utility services, as distinguished from 
connections thereto, is covered. The following are illustrations of non-
covered set-ups of devices and/or processes:
    (i) Assembly of piping and equipment within existing ``hot cell'' 
facilities for proving out a conceptual design of a chemical processing 
unit.
    (ii) Assembly of equipment, including adaptation and modification 
thereof, in existing ``hot cell'' facilities to prove out a conceptual 
design for remotely controlled machining equipment.
    (iii) Assembly of the first graphite pile in a stadium at Stagg 
Field in Chicago.
    (iv) Assembly of materials and equipment for particular aspects of 
the direct current thermonuclear experiments to explore feasibility and 
to study other ramifications of the concept of high energy injection and 
to collect data thereon.
    (2) Loops. Many experiments are carried on in equipment assemblies, 
called loops, in which liquids or gases are circulated under monitored 
and controlled conditions. For purposes of determining coverage under 
the Act, loops may be classed as loop facilities or as loop set-ups. 
Both of these classes of loops can include in-reactor loops and out-of-
reactor loops. In differentiating between clearly identified loop set-
ups and loop facilities, an area exists in which there have been some 
questions of coverage, such as certain loops at the Material Test 
Reactor and at Engineering Test Reactor and the Idaho National 
Engineering and Environmental Laboratory site. Upon clarification of 
this area, further illustrations will be added. In the meantime, the 
differentiation between loop set-ups and loop facilities must be made on 
a case-by-case basis, taking into account the total criteria set forth 
in this subpart.
    (i) Loop set-ups. The assembly, erection, modification, and 
disassembly of a loop set-up is non-covered. A noncontroversial example 
of a loop set-up is one which is assembled in a laboratory, e.g., Oak 
Ridge National Laboratory, Argonne National Laboratory, or Lawrence 
Livermore National Laboratory, for a particular test and thereafter 
disassembled. However, preparatory work for a loop set-up requiring 
structural changes or modifications of basic utility services as 
distinguished from connections thereto is covered, as are material and 
equipment that are installed for a loop set-up which is a permanent part 
of the facility or which is use for a succession of experimental 
programs.
    (ii) Loop facilities. A loop facility differs from a loop set-up in 
that it is of a more permanent character. It is usually, but not always, 
of greater size. It normally involves the building or modification of a 
structure. Sometimes it is installed as a part of construction of the 
facility. It may be designed for use in a succession of experimental 
programs over a longer period of time. Examples of loop facilities are 
the in-reactor ``K'' loops at Hanford and the large Aircraft Nuclear 
Propulsion loop at the Idaho National Engineering and Environmental 
Laboratory site. The on-site assembly and erection of such loop 
facilities are covered. However, once a loop facility is completed and 
becomes operational, the criteria set forth in this paragraph for 
operational and maintenance activities apply.
    (3) Reactor component experiments. Other experiments are carried on 
by insertion of experimental components within reactor systems without 
the use

[[Page 480]]

of a loop assembly. An example of reactor facilities erected for such 
experimental purposes are the special power excursion test reactors 
(SPETRs) at the National Reactor Test Site which are designed for 
studying reactor behavior and performance characteristics of certain 
reactor components. Such a facility may consist of a reactor vessel, 
pressurizing tank, coolant loops, pumps, heat exchangers, and other 
auxiliary equipment as needed. The facility also may include sufficient 
shielding to permit work on the reactor to proceed following a short 
period of power interruption, and buildings as needed to house the 
reactor and its auxiliary equipment. The erection and on-site assembly 
of such a reactor facility is covered, but the components whose 
characteristics are under study are excluded from coverage. To 
illustrate, one of the SPETRs planned for studies of nuclear reactor 
safety is designed to accommodate various internal fuel and control 
assemblies. The internal structure of the pressure vessel is designed so 
that cores of different shapes and sizes may be placed in the vessel for 
investigation, or the entire internal structure may be easily removed 
and replaced by a structure which will accept a different core design. 
Similarly, the control rod assembly is arranged to provide for 
flexibility in the removal of instrument leads and experimental 
assemblies from within the core.
    (4) Tests or experiments in peaceful uses of nuclear energy. These 
tests or experiments are varied in nature and some are only in a 
planning stage. They consist of one or more nuclear or nonnuclear 
detonations for the purposes of acquiring data. The data can include 
seismic effects, radiation effects, amount of heat generated, amount of 
material moved and so forth. Some of these tests are conducted in 
existing mines, while others are conducted in facilities specifically 
constructed for the tests or experiments. In general, all work which can 
be performed in accordance with customary drawings and specifications, 
as well as other work in connection with preparation of facilities is 
treated as covered work. Such work includes tunneling, drilling, 
excavation and back-filling, erection of buildings or other structures, 
and installation of utilities. The installation of the nonnuclear 
material or nuclear device to be detonated, and the instrumentation and 
connection between such material or device and the instrumentation are 
treated as non-covered work.
    (5) Tests or experiments in military uses of nuclear energy. As in 
970.2204-1-1(c)(4), these tests or experiments can be varied in nature. 
However, under this category it is intended to include only detonation 
of nonnuclear material or nuclear devices. The material or devices can 
be detonated either underground, at ground level, or above the ground. 
These tests or experiments have been conducted in, on, or in connection 
with facilities specifically constructed for such tests or experiments. 
As in tests or experiments in peaceful uses of nuclear energy, all work 
which can be performed in accord with customary drawings and 
specifications, as well as other work in connection with preparation of 
facilities are treated as covered work. Such work includes building 
towers or similar structures, tunneling, drilling, excavation and 
backfilling, erection of buildings or other structures, and installation 
of utilities. The installation of the nonnuclear material or nuclear 
devices and instrumentation are treated as non-covered work.
    (d) Construction site contiguous to an established manufacturing 
facility. As DOE-owned property sometimes encompasses several thousand 
acres of real estate, a number of separate facilities may be located in 
areas contiguous to each other on the same property. These facilities 
may be built over a period of years, and established manufacturing 
activities may be regularly carried on at one site at the same time that 
construction of another facility is underway at another site. On 
occasion, the regular manufacturing activities of the operating 
contractor at the first site may include the manufacture, assembly, and 
reconditioning of components and equipment which in other industries 
would normally be done in established commercial plants. While the 
manufacture of components and equipment in the manufacturing plant is 
non-covered, the installation of any

[[Page 481]]

such manufactured items on a construction job is covered.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.2208  Equal employment opportunity.

    The equal employment opportunity provisions of 48 CFR subpart 22.8 
and subpart 922.8 of this chapter, including Executive Order 11246 and 
41 CFR part 60, are applicable to DOE management and operating 
contracts.



Sec. 970.2210  Service Contract Act.

    The Service Contract Act of 1965 is not applicable to contracts for 
the management and operation of DOE facilities, but it is applicable to 
subcontracts under such contracts (see 970.5244-1(x)).

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.2270  Unemployment compensation.

    (a) Each state has its own unemployment compensation system to 
provide payments to workers who become unemployed involuntarily and 
through no fault of their own. Funds are provided for unemployment 
compensation benefits through a payroll tax on employers. Most DOE 
contractors are subject to the unemployment compensation tax laws of the 
states in which they are located. It is the policy to assure, both in 
the negotiation and administration of cost-reimbursement type contracts, 
that economical and practical arrangements are made and practiced with 
respect to unemployment compensation.
    (b) Contract exempt from state laws. (1) Some contractors are exempt 
from state unemployment compensation laws, usually on grounds that they 
are nonprofit organizations or subdivisions of State governments. Most 
states, however, permit such employers to elect unemployment 
compensation coverage on a voluntary basis. Under such circumstances, 
all existing or prospective cost-reimbursement contractors shall be 
encouraged to provide unemployment compensation coverage or equivalent 
substitutes.
    (2) It is also DOE policy that, prior to the award or extension of a 
management and operating contract, exempt contractors or prospective 
contractors shall be required to submit to the contracting officer a 
statement that they will either elect coverage or provide equivalent 
substitutes for unemployment compensation, or in the alternative, submit 
evidence that it is impractical to do so. If any exempt contractor or 
prospective contractor submits that it is impractical to elect coverage 
or to provide an equivalent substitute, appropriate Office of Contract 
and Resource Management, within the Headquarters procurement 
organization, staff shall review that position prior to recommending an 
award or extension of the contract. If there are substantial reasons for 
not electing coverage or for not providing equivalent substitutes, a 
contract may be awarded or extended. Headquarters' staff review and 
recommendation shall be based on such factors as--
    (i) The specific provisions of the unemployment compensation law of 
the State;
    (ii) The extent to which the establishment of special conditions on 
DOE work may have an adverse effect on the contractor's general policies 
and operating costs in its private operations;
    (iii) The numerical relationship between the contractor's private 
work force and its employees performing only work for DOE;
    (iv) The contractor's record with respect to work force stability 
and the general outlook with respect to future work force stability;
    (v) In a replacement contractor situation, whether or not the prior 
contractor had coverage or suitable substitutes; and
    (vi) The particular labor relations implications involved.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]

[[Page 482]]

   Subpart 970.23_Environment, Energy and Water Efficiency, Renewable 
    Energy Technologies, Occupational Safety and Drug-Free Work Place



Sec. 970.2301  Sustainable acquisition.



Sec. 970.2301-1  Policy.

    There are many environmentally beneficial and resource efficient 
programs described in various subparts of FAR Part 23. For ease of use, 
DOE refers to all of these as the DOE Sustainable Acquisition Program 
with guidance for the many products at http://www.hss.energy.gov/pp/epp. 
Contractors operating DOE facilities shall comply with the requirements 
of Executive Order 13423, Strengthening Federal Environmental, Energy 
and Transportation Management, and Executive Order 13514, Federal 
Leadership in Environmental, Energy, and Economic Performance. The 
contractor shall also consider the best practices within the DOE 
Acquisition Guide, Chapter 23, Acquisition Considerations Regarding 
Federal Leadership in Environmental, Energy, and Economic Performance.

[75 FR 57695, Sept. 22, 2010]



Sec. 970.2301-2  Contract clauses.

    (a) Section 3(f) of Executive Order 13423 requires contractors to 
comply with the provisions of the Order to the same extent as the 
Federal agency would be required to comply if it operated the facility 
or fleet. Insert the clause at 970.5223-6, Executive Order 13423, 
Strengthening Federal Environmental, Energy, and Transportation 
Management, in such contracts.
    (b) Insert the clause at 970.5223-6, Sustainable and Environmentally 
Preferable Purchasing Practices, or its Alternate I in contracts for the 
management and operation of DOE facilities, or other contracts under 
which the contractor manages Government facilities or fleets, or 
conducts mission operations at Government facilities, or performs 
construction at DOE facilities. Inclusion of this contract clause 
applies to contractors that are responsible for the management and 
operation of the DOE's facilities or the conduct of mission operations 
at the Department's facilities, including elements of the National 
Nuclear Security Administration (NNSA), the Power Marketing 
Administrations, and the National Laboratories. All such contracts 
should also include the following clauses: FAR 52.223-2, Affirmative 
Procurement of Biobased Products under Service and Construction 
Contracts; FAR 52.223-10, Waste Reduction Program; FAR 52.223-XX, 
Compliance with Environmental Management Systems (see 923.903 regarding 
the applicability of this clause to specific DOE contracts); FAR 52.223-
15, Energy Efficiency in Energy Consuming Products; and FAR 52.223-17, 
Affirmative Procurement of EPA-designated Items in Service and 
Construction Contracts.

[75 FR 57695, Sept. 22, 2010]



Sec. 970.2303  Hazardous materials identification and material safety.



Sec. 970.2303-2-70  General.

    (a) The Department of Energy regulates the nuclear safety of its 
major facilities under its own statutory authority derived from the 
Atomic Energy Act and other legislation. The Department also regulates, 
under certain specific conditions, the use by its contractors of 
radioactive materials and ionizing radiation producing machines.
    (b) The inclusion of environmental, safety and health clauses in DOE 
contracts shall be made by the contracting officer in accordance with 
this subpart and in consultation with appropriate environmental, safety 
and health program management personnel.
    (c)(1) For DOE management and operating contracts and other 
contracts designated by the Senior Procurement Executive, or designee, 
the clause entitled ``970.5215-3 Conditional Payment of Fee, Profit, and 
Other Incentives--Facility Management Contracts'' implements the 
requirements of section 234C of the Atomic Energy Act for the use of a 
contract clause that provides for an appropriate reduction in the fee or 
amount paid to the contractor under the contract in the event of a 
violation by the contractor or any contractor employee of any 
Departmental regulation relating to the enforcement of worker safety and 
health concerns. The clause, in part, provides for reductions

[[Page 483]]

in the amount of fee, profit, or share of cost savings that is otherwise 
earned by the contractor for performance failures relating to worker 
safety and health violations under the Department's regulations.
    (2)(i) Section 234C of the Atomic Energy Act states that DOE shall 
either pursue civil penalties (implemented at 10 CFR part 851) for a 
violation under section 234C of the Atomic Energy Act (42 U.S.C. 2282c) 
or a contract fee reduction, but not both.
    (ii) The contracting officer must coordinate with the Office of 
Price Anderson Enforcement within the Office of the Assistant Secretary 
for Health, Safety and Security (or with any designated successor 
office) before pursuing contract fee reduction in the event of a 
violation by the contractor or any contractor employee of any 
Departmental regulation relating to the enforcement of worker safety and 
health concerns.

[65 FR 81009, Dec. 22, 2000, as amended at 68 FR 68782, Dec. 10, 2003. 
Redesignated and amended at 74 FR 36372, 36378, July 22, 2009]



Sec. 970.2303-3  Contract clauses.

    (a) When work under management and operating contracts and 
subcontracts thereunder is to be performed at a facility where DOE will 
exercise its statutory authority to enforce occupational safety and 
health standards applicable to the working conditions of the contractor 
and subcontractor employees at such facility, the clause at 48 CFR 
970.5223-1, Integration of Environment, Safety and Health into Work 
Planning and Execution, shall be used in such contract or subcontract 
and made applicable to the work if conditions in paragraphs (a)(1) 
through (3) of this section, are satisfied--
    (1) DOE work is segregated from the contractor's or subcontractor's 
other work;
    (2) The operation is of sufficient size to support its own safety 
and health services; and
    (3) The facility is government-owned, or leased by or for the 
account of the government.
    (b) The clause set forth in 952.223-72, Radiation Protection and 
Nuclear Criticality, shall be included in those contracts or 
subcontracts for, and be made applicable to, work to be performed at a 
facility where DOE does not elect to assert its statutory authority to 
enforce occupational safety and health standards applicable to the 
working conditions of contractor and subcontractor employees, but does 
need to enforce radiological safety and health standards pursuant to 
provisions of the contract or subcontract rather than by reliance upon 
Nuclear Regulatory Commission licensing requirements (including 
agreements with States under section 274 of the Atomic Energy Act).

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.2305  Workplace substance abuse programs--management and 
          operating contracts.



Sec. 970.2305-1  General.

    (a) The Department of Energy (DOE), as part of its overall 
responsibilities to protect the environment, maintain public health and 
safety, and safeguard the national security, has established policies, 
criteria, and procedures for management and operating contractors to 
develop and implement programs that help maintain a workplace free from 
the use of illegal drugs.
    (b) Regulations concerning DOE's management and operating contractor 
workplace substance abuse programs are promulgated at 10 CFR part 707, 
Workplace Substance Abuse Programs at DOE Sites.



Sec. 970.2305-2  Applicability.

    (a) All management and operating contracts awarded under the 
authority of the Atomic Energy Act of 1954, as amended, are required to 
implement the policies, criteria, and procedures of 10 CFR part 707, 
Workplace Substance Abuse Programs at DOE Sites.
    (b) Except as otherwise provided for in this subpart, management and 
operating contracts subject to the requirements of 10 CFR part 707 and 
this subpart shall not be subject to 48 CFR subpart 23.5, Drug Free 
Workplace.

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68221, Nov. 5, 2010]

[[Page 484]]



Sec. 970.2305-3  Definitions.

    Terms and words relating to DOE's Workplace Substance Abuse 
Programs, as used in this section, have the same meanings assigned to 
such terms and words in 10 CFR part 707.



Sec. 970.2305-4  Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 970.5223-
3, Agreement Regarding Workplace Substance Abuse Programs at DOE Sites, 
in solicitations for the management and operation of DOE-owned or -
controlled sites operated under the authority of the Atomic Energy Act 
of 1954, as amended.
    (b) The contracting officer shall insert the clause at 970.5223-4, 
Workplace Substance Abuse Programs at DOE Sites, in contracts for the 
management and operation of DOE-owned or -controlled sites operated 
under the authority of the Atomic Energy Act of 1954, as amended.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.2306  Suspension of payments, termination of contract, and 
          debarment and suspension actions.

    (a) The contracting officer shall comply with the procedures of 48 
CFR 23.506 regarding the suspension of contract payments, the 
termination of the contract for default, and the debarment and 
suspension of a contractor relative to failure to comply with the clause 
at 970.5223-4, Workplace Substance Abuse Programs at DOE Sites.
    (b) For purposes of 10 CFR part 707, the specific causes for 
suspension of contract payments, termination of the contract for 
default, and debarment and suspension of the contractor are:
    (1) The contractor fails to either comply with the requirements of 
10 CFR part 707 or perform in a manner consistent with its approved 
program;
    (2) The contractor has failed to comply with the terms of the 
provision at 970.5223-3, Agreement Regarding Workplace Substance Abuse 
Programs at DOE Sites;
    (3) Such a number of contractor employees having been convicted of 
violations of criminal drug statutes for violations occurring on the 
DOE-owned or -controlled site, as to indicate that the contractor has 
failed to make a good faith effort to provide a drug free workplace; or,
    (4) The offeror has submitted a false certification in response to 
the provision at 970.5223-3, Agreement Regarding Workplace Substance 
Abuse Programs at DOE Sites.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009; 
75 FR 68221, Nov. 5, 2010]

                   Subpart 970.25_Foreign Acquisition



Sec. 970.2570  Contract clauses.

    Contracting officers shall insert the clauses at 48 CFR 52.225-1, 
Buy American Act--Supplies, and 48 CFR 52.225-9, Buy American Act--
Construction Materials, in management and operating contracts. The 
clause at 48 CFR 52.225-1 shall be modified in paragraph (d) by 
substituting the word ``use'' for the word ``deliver.''

[75 FR 68219, Nov. 5, 2010]

               Subpart 970.26_Other Socioeconomic Programs



Sec. 970.2670  Implementation of Section 3021 of the Energy Policy Act 
          of 1992.



Sec. 970.2670-1  Requirements.

    The goal requirements of section 3021 of the Energy Policy Act of 
1992, and the attendant reporting requirements shall be included in the 
subcontracting plan for the management and operating contract and shall 
apply to the annual dollar obligations specifically provided to the 
contractor for competitively awarded subcontracts that fulfill Energy 
Policy Act requirements.



Sec. 970.2671  Diversity.



Sec. 970.2671-1  Policy.

    Department of Energy policy recognizes that full utilization of the 
talents and capabilities of a diverse work force is critical to the 
achievement of its mission. The principal goals of this policy are to 
foster and enhance partnerships with small, small disadvantaged, women-
owned small businesses, and

[[Page 485]]

educational institutions; to match capabilities with existing 
opportunities; to track small, small disadvantaged, women-owned small 
business, and educational activity; and to develop innovative strategies 
to increase opportunities.



Sec. 970.2671-2  Contract clause.

    The contracting officer shall insert the clause at 970.5226-1, 
Diversity Plan, in all management and operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68221, Nov. 5, 2010]



Sec. 970.2672  Implementation of Section 3161 of the National Defense 
          Authorization Act for Fiscal Year 1993.



Sec. 970.2672-1  Policy.

    Consistent with the objectives of section 3161 of the National 
Defense Authorization Act for Fiscal Year 1993, 42 U.S.C. 7274h, in 
instances where the Department of Energy has determined that a change in 
work force at a DOE Defense Nuclear Facility is necessary, DOE 
contractors and subcontractors at DOE Defense Nuclear Facilities shall 
accomplish work force restructuring or displacement so as to mitigate 
social and economic impacts and in a manner consistent with any DOE work 
force restructuring plan in effect for the facility or site. In all 
cases, mitigation shall include the requirement for hiring preferences 
for employees whose positions have been terminated (except for 
termination for cause) as a result of changes to the work force at the 
facility due to restructuring accomplished under the requirements of 
section 3161. Where applicable, contractors may take additional actions 
to mitigate consistent with the Department's Workforce Restructuring 
Plan for the facility or site.



Sec. 970.2672-2  Requirements.

    The requirements set forth in subpart 926.71, Implementation of 
Section 3161 of the National Defense Authorization Act for Fiscal Year 
1993, for contractors and subcontractors to provide a hiring preference 
for employees under Department of Energy contracts whose employment in 
positions at a Department of Energy Defense Nuclear Facility is 
terminated (except for a termination for cause) applies to management 
and operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68221, Nov. 5, 2010]



Sec. 970.2672-3  Contract clause.

    The contracting officer shall insert the clause at 970.5226-2, 
Workforce Restructuring Under Section 3161 of the National Defense 
Authorization Act for Fiscal Year 1993, in contracts for the management 
and operation of Department of Energy Defense Nuclear Facilities and, as 
appropriate, in other contracts that include site management 
responsibilities at a Department of Energy Defense Nuclear Facility.

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68221, Nov. 5, 2010]



Sec. 970.2673  Regional partnerships.



Sec. 970.2673-1  Policy.

    It is the policy of the DOE to be a constructive partner in the 
geographic region in which DOE conducts its business. The basic elements 
of this policy include--
    (a) Recognizing the diverse interests of the region and its 
stakeholders;
    (b) Engaging regional stakeholders in issues and concerns of mutual 
interest; and
    (c) Recognizing that giving back to the community is a worthwhile 
business practice.

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68219, Nov. 5, 2010]



Sec. 970.2673-2  Contract clause.

    The contracting officer shall insert the clause at 970.5226-3, 
Community Commitment, in all management and operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68221, Nov. 5, 2010]

              Subpart 970.27_Patents, Data, and Copyrights



Sec. 970.2701  General.



Sec. 970.2701-1  Applicability.

    This subpart applies to negotiation of patent rights, rights in 
technical data provisions and other related provisions

[[Page 486]]

for the Department of Energy contracts for the management and operation 
of DOE's major sites or facilities, including the conduct of research 
and development and nuclear weapons production, and contracts which 
involve major, long-term or continuing activities conducted at a DOE 
site.



Sec. 970.2702  Patent related clauses.



Sec. 970.2702-1  Authorization and consent.

    Contracting officers must use the clause at 970.5227-4, 
Authorization and Consent, instead of the clause at 48 CFR 52.227-1.



Sec. 970.2702-2  Notice and assistance regarding patent and copyright 
          infringement.

    Contracting officers must use the clause at 970.5227-5, Notice and 
Assistance Regarding Patent and Copyright Infringement, instead of the 
clause at 48 CFR 52.227-2.



Sec. 970.2702-3  Patent indemnity.

    (a) Contracting officers must use the clause at 970.5227-6, Patent 
Indemnity--Subcontracts to assure that subcontracts appropriately 
address patent indemnity.
    (b) Normally, the clause at 48 CFR 52.227-3 would not be appropriate 
for an M&O contract; however, if there is a question, such as when the 
mission of the contractor involves production, the contracting officer 
must consult with local patent counsel and use the clause where 
appropriate.



Sec. 970.2702-4  Royalties.

    Contracting officers must use the solicitation provision at 
970.5227-7, Royalty Information, and the clause at 970.5227-8, Refund of 
Royalties instead of the provision at 48 CFR 52.227-8 and the clause at 
48 CFR 52.227-9, respectively.



Sec. 970.2702-5  Rights to proposal data.

    Contracting officers must include the clause at 48 CFR 52.227-23, 
Rights to Proposal Data, in all solicitations and contracts for the 
management and operation of DOE sites and facilities.



Sec. 970.2702-6  Notice of right to request patent waiver.

    Contracting officers must include the provision at 970.5227-9 in all 
solicitations for contracts for the management and operation of DOE 
sites or facilities.



Sec. 970.2703  Patent rights.



Sec. 970.2703-1  Purposes of patent rights clauses.

    (a) DOE sites and facilities are managed and operated on behalf of 
the Department of Energy by a contractor, pursuant to management and 
operating contracts that are generally awarded for a five (5) year term, 
with the possibility for renewal. Special provisions relating to patent 
rights are appropriately incorporated into an M&O contract because of 
the unique circumstances and responsibilities of managing and operating 
a Government-owned facility, as compared to other federally funded 
research and development contracts.
    (b)(1) Technology transfer mission clause. In accordance with Public 
Law 101-189, section 3133(d), DOE may grant technology transfer 
authority to M&O contractors operating a DOE facility. Generally, M&O 
contractors have the right to elect to retain title to inventions made 
under the contract, whether a nonprofit or educational organizations, as 
a result of 35 U.S.C. 200 et seq. (Bayh-Dole Act), or a large business, 
as a result of a class patent waiver issued pursuant to 10 CFR part 784. 
Under such contracts, the M&O contractor assumes responsibilities for 
commercializing retained inventions, in accordance with the Technology 
Transfer Mission clause provided at 970.5227-3. That clause also governs 
such activities as the distribution of royalties earned from inventions 
made under the contract and the transfer of patent rights in inventions 
made under the contract to successor contractors.
    (2) If the M&O contractor is a nonprofit organization or small 
business firm having technology transfer authority, the following 
clauses are inserted into the M&O contract: 970.5227-3 and 970.5227-10.
    (3) If the M&O contract has technology transfer as a mission and is 
to

[[Page 487]]

be performed by a for-profit, large business firm that has been granted 
an advance class waiver, the following clauses are inserted into the M&O 
contract: 970.5227-3 and 970.5227-12. The terms of the clause at 
970.5227-12 are subject to modification to conform to the terms of the 
class waiver.
    (4) If the M&O contract does not have a technology transfer mission 
and is to be performed by a for-profit, large business firm and does not 
have advance class waiver under 10 CFR part 784, the patent rights 
clause at 970.5227-11 is inserted into the M&O contract, and the 
Technology Transfer Mission clause is inapplicable.
    (5) If the contractor is an educational institution, a non-profit 
organization or a small business firm and is conducting privately funded 
technology transfer activities, involving the use of private funds to 
conduct licensing and marketing activities related to inventions made 
under the contract in accordance with the Bayh-Dole Act, DOE may modify 
the patent rights clause (970.5227-10) to address issues such as the 
disposition of royalties earned under the privately funded technology 
transfer program, the transfer of patent rights to a successor 
contractor, allowable cost restrictions concerning privately funded 
technology transfer activities, and the Government's freedom from any 
liability related to licensing under the contractor's privately funded 
technology transfer program.
    (c) Contracting officers must consult with DOE patent counsel 
assisting the contracting activity or the Assistant General Counsel for 
Technology Transfer and Intellectual Property for assistance in 
selecting for use in the solicitation, negotiating, or approving 
appropriate patent rights clauses for a M&O contract. It may be 
appropriate to include more than one patent rights clause in a 
solicitation if the successful contractor could, for instance, be either 
an educational or a large business. If a large business may be selected 
for performance of a contract that will include a technology transfer 
clause, the solicitation must include the clause at 970.5227-12 to 
reflect the waiver that will likely be granted. If the solicitation 
includes more than one patent clause, it must include an explanation of 
the circumstances under which the appropriate clause will be used. The 
final award must contain only one patent rights clause.



Sec. 970.2703-2  Patent rights clause provisions for management and 
          operating contractors.

    (a) Allocation of Principal Rights: Bayh-Dole provisions. If the 
management and operating contractor is an educational institution or 
nonprofit organization, the patent rights clause provided at 970.5227-10 
must be inserted into the M&O contract. Such entities are beneficiaries 
of Bayh-Dole Act, including the paramount right of the contractor to 
elect to retain title to inventions conceived or first actually reduced 
to practice in performance of work under the contract, except in DOE-
exempted areas of technology or in operation of DOE facilities primarily 
dedicated to naval nuclear propulsion or weapons related programs.
    (b) Allocation of Principal Rights: Government title. (1) The patent 
rights clause provided at 970.5227-11 must be incorporated into the M&O 
contract if the contractor is a for-profit, large business firm and the 
contract does not have a technology transfer mission or if, without 
regard to the type of contractor, the contract is for the operation of a 
DOE facility primarily dedicated to naval nuclear propulsion or weapons 
related programs. That clause provides for DOE's statutory obligation to 
take title to inventions conceived or first actually reduced to practice 
in the course of or under an M&O contract, and does not contemplate an 
advance class waiver of Government rights in inventions, or 
participation by the contractor in technology transfer activities.
    (2) While only in rare circumstances does a for-profit large 
business contractor whose contract contains no technology transfer 
mission receive rights in or title to inventions made under the 
contract, the contractor does have the right to request a license or 
foreign patent rights in inventions made under the contract, and may 
petition for a waiver of Government rights in identified inventions. The 
patent rights clause 970.5227-11 does not

[[Page 488]]

include many of the provisions of patent rights clauses 970.5227-10 and 
970.5227-12, related to the filing of patent applications by the 
contractor, the granting of rights in inventions by the contractor to 
third parties (preference for United States industry), and conditions 
allowing the Government to grant licenses to third parties in inventions 
retained by the contractor (march-in rights). Any instrument granting 
rights in inventions made under a contract governed by patent rights 
clause 970.5227-11 must include these additional provisions within its 
terms and conditions.
    (c) Allocation of Principal Rights: Contractor right to elect title 
under an advance class waiver. If the M&O contractor is a for-profit, 
large business firm and the Government has granted an advance class 
waiver of Government rights in inventions made in the course of or under 
the M&O contract, under the authority of the Atomic Energy Act of 1954 
(42 U.S.C. 2182) and the Federal Nonnuclear Energy Act of 1974 (42 
U.S.C. 5908(c)), the patent rights clause provided at 970.5227-12 must 
be inserted into the M&O contract, unless the terms and conditions of 
such an approved waiver alter or replace the patent rights clause 
provisions pursuant to 10 CFR part 784.
    (d) Extensions of time--DOE discretion. The patent rights clauses 
for M&O contracts require the contractor to take certain actions within 
prescribed time periods to comply with the contract and preserve its 
rights in inventions. The M&O contractor may request extensions of time 
in which to take such actions by submitting written justification to 
DOE, and DOE may grant the contractor's requests, on a case-by-case 
basis. If the time period expired due to negligence by the contractor, 
DOE may grant a request for an extension of time upon a showing by the 
contractor that corrective procedures are in place to avoid such 
negligence in the future. If a contractor is requesting an extension of 
time in which to elect to retain title to an invention, DOE may grant 
the request if the extension allows the contractor to conduct further 
experimentation, market research, or other analysis helpful to determine 
contractor interest in electing title to the invention, among other 
considerations. Generally, the extensions of time are for periods of 
between six (6) months to one (1) year.
    (e) Facilities license. These include the rights to make, use, 
transfer, or otherwise dispose of all articles, materials, products, or 
processes embodying inventions or discoveries used or embodied in the 
facility regardless of whether or not conceived or first actually 
reduced to practice under or in the course of such a contract. The 
patent rights clauses, 970.5227-10, 970.5227-11, 970.5227-12, each 
contain a provision granting the Government this facilities license.
    (f) Deletion of classified inventions provision. If DOE determines 
that the research, development, demonstration or production work to be 
performed during the course of a management and operating contract most 
probably will not involve classified subject matter or result in any 
inventions that require security classification, DOE patent counsel may 
advise the contracting officer to delete the patent rights clause 
provision entitled, ``Classified Inventions'' from the M&O contract.
    (g) Alternate 1--Weapons Related Research or Production. If DOE 
grants technology transfer authority to a DOE facility, pursuant to 
Public Law 101-189, section 3133(d), and the DOE owned facility is 
involved in weapons related research and development, or production, 
then Alternate 1 of the patent rights clauses must be inserted into the 
M&O contract. Alternate 1 defines weapons related subject inventions and 
restricts the contractor's rights with respect to such inventions.



Sec. 970.2704  Rights in data.



Sec. 970.2704-1  General.

    (a) Rights in data relating to the performance of the contract and 
to all facilities are significant in assuring continuity of the 
management and operation of DOE facilities. It is crucial in assuring 
DOE's continuing ability to perform its statutory missions that DOE 
obtain rights to all data produced or specifically used by its 
management and operating contractors and appropriate subcontractors. In 
order to obtain the necessary rights in technical

[[Page 489]]

data, DOE contracting officers shall assure that management and 
operating contracts contain either the Rights in Data clause at 48 CFR 
970.5227-1, Rights in Data--Facilities, or the clause at 48 CFR 
970.5227-2, Rights in Data--Technology Transfer. Selection of the 
appropriate clause is dependent upon whether technology transfer is a 
mission of the management and operating contract pursuant to the 
National Competitiveness Technology Transfer Act of 1989, Public Law 
101-189, (15 U.S.C. 3711 et seq., as amended). If technology transfer is 
not a mission of the management and operating contract, the clause at 48 
CFR 970.5227-1, Rights in Data--Facilities, shall be used. In those 
instances in which technology transfer is a mission of the contract, the 
clause at 48 CFR 970.5227-2, Rights in Data--Technology Transfer, shall 
be used.
    (b) Employees of the management and operating contractor may not be 
used to assist in the preparation of a proposal or bid for services 
which are similar or related to those being performed under the 
contract, which are to be performed by the contractor or its parent or 
affiliate organization for commercial customers unless the employee has 
been separated from work under the DOE contract for such period as the 
Head of the Contracting Activity or designee shall have directed.



Sec. 970.2704-2  Procedures.

    (a) The clauses at 48 CFR 970.5227-1, Rights in Data-Facilities, and 
48 CFR 970.5227-2, Rights in Data--Technology Transfer, both provide 
generally for Government ownership and for unlimited rights in the 
Government for all data first produced in the performance of the 
contract and unlimited rights in data specifically used in the 
performance of the contract. Both clauses provide that, subject to 
patent, security, and other provisions of the contract, the contractor 
may use contract data for its private purposes. The contractor, under 
either clause, must treat any data furnished by DOE or acquired from 
other Government agencies or private entities in the performance of 
their contracts in accordance with any restrictive legends contained 
therein.
    (b) Since both clauses secure access to and, if requested, delivery 
of technical data used in the performance of the contract, there is 
generally no need to use the Additional Technical Data Requirements 
clause at 48 CFR 52.227-16 in the management and operating contract.
    (c)(1) Paragraph (d) of the clause at 48 CFR 970.5227-1, Rights in 
Data--Facilities, and paragraph (f) of the clause at 48 CFR 970.5227-2, 
Rights in Data--Technology Transfer, provide for the inclusion in 
subcontracts of the Rights in Technical Data--General clause at 48 CFR 
52.227-14, with Alternate V, and modified in accordance with DEAR 
927.409. Those clauses also provide for the inclusion in appropriate 
subcontracts Alternates II, III, and IV to the clause at 48 CFR 52.227-
14 with DOE's prior approval and the inclusion of the Additional 
Technical Data Requirements clause at 48 CFR 52.227-16 in all 
subcontracts for research, development, or demonstration and all other 
subcontracts having special requirements for the production or delivery 
of data. In subcontracts, including subcontracts for related support 
services, involving the design or operation of any plants or facilities 
or specially designed equipment for such plants or facilities that are 
managed or operated by the contractor under its contract with DOE, the 
management and operating contractor shall use the Rights in Data--
Facilities clause at 48 CFR 970.5227-1.
    (2) Where, however, a subcontract is to be awarded by the management 
and operating contractor in connection with a program, as discussed at 
927.404-70, which provides statutory authority to protect from public 
disclosure, data first produced under contracts awarded pursuant to the 
program, contracting officers shall ensure that the management and 
operating contractor includes in that subcontract the rights in data 
clause provided by DOE Patent Counsel, consistent with any accompanying 
guidance.
    (3) Management and operating contractors and higher-tier 
subcontractors shall not use their power to award subcontracts as 
economic leverage to acquire rights in a subcontractor's limited rights 
data or restricted computer

[[Page 490]]

software for their private use, nor may they acquire rights in a 
subcontractor's limited rights data or restricted computer software 
except through the use of Alternate II or III to the clause at 48 CFR 
52.227-14, respectively, without the prior approval of DOE Patent 
Counsel.
    (d)(1) Paragraphs (e) and (f) of the clause at 48 CFR 970.5227-1, 
Rights in Data--Facilities, and paragraphs (g) and (h) of the clause at 
48 CFR 970.5227-2, Rights in Data--Technology Transfer, provide for the 
contractor's granting a nonexclusive license in any limited rights data 
and restricted computer software specifically used in performance of the 
contract.
    (2) In certain instances the objectives of DOE would be frustrated 
if the Government did not obtain, at the time of contracting, limited 
license rights on behalf of responsible third parties and the 
Government, and to limited rights data or restricted computer software 
or both necessary for the practice of subject inventions or data first 
produced or delivered in the performance of the contract. This situation 
may arise in the performance of management and operating contracts and 
contracts for the management or operation of a DOE facility or site. 
Contracting officers should consult with program officials and Patent 
Counsel. No such rights should be obtained from a small business or non-
profit organization, unless similar rights in background inventions of 
the small business or non-profit organization have been authorized in 
accordance with 35 U.S.C. 202(f). Where such a background license is in 
DOE's interest, a provision that provides substantially as Alternate VI 
at 48 CFR 952.227-14 should be added to the appropriate clause, 48 CFR 
970.5227-1, Rights in Data--Facilities, or 48 CFR 970.5227-2, Rights in 
Data--Technology Transfer.
    (e) The Rights in Data--Technology Transfer clause at 48 CFR 
970.5227-2 differs from the clause at 48 CFR 970.5227-1, Rights in 
Data--Facilities, in the context of its more detailed treatment of 
copyright. In management and operating contracts that have technology 
transfer as a mission, the right to assert copyright in data first 
produced under the contract will be a valuable right, and 
commercialization of such data, including computer software, will assist 
the management and operating contractor in advancing the technology 
transfer mission of the contract. The clause at 48 CFR 970.5227-2, 
Rights in Data--Technology Transfer, provides for DOE approval of DOE's 
taking a limited copyright license for a period of five years, and, in 
certain rare cases, specified longer periods in order to contribute to 
commercialization of the data.
    (f) Contracting officers should consult with Patent Counsel to 
assure that requirements regarding royalties and conflicts of interest 
associated with asserting copyright in data first produced under the 
contract are appropriately addressed in the Technology Transfer Mission 
clause (48 CFR 970.5227-3) of the management and operating contract. 
Where it is not otherwise clear which DOE program funded the development 
of a computer software package, such as where the development was funded 
out of a contractor's overhead account, the DOE program which was the 
primary source of funding for the entire contract is deemed to have 
administrative responsibility. This issue may arise, among others, in 
the decision whether to grant the contractor permission to assert 
copyright. See paragraph (e) of the Rights in Data--Technology Transfer 
clause at 970.5227-2.
    (g) In management and operating contracts involving access to DOE-
owned Category C-24 restricted data, as set forth in 10 CFR part 725, 
DOE has reserved the right to receive reasonable compensation for the 
use of its inventions and discoveries, including its related restricted 
data and technology. Alternate I to each clause shall be used where 
access to Category C-24 restricted data is contemplated in the 
performance of a contract.



Sec. 970.2704-3  Contract clauses.

    (a) The contracting officer shall insert the clause at 48 CFR 
970.5227-1, Rights in Data--Facilities, in management and operating 
contracts which do not contain the clause at 48 CFR 970.5227-2, Rights 
in Data--Technology Transfer. The contracting officer shall include the 
clause with its Alternate I

[[Page 491]]

in contracts where access to Category C-24 restricted data, as set forth 
in 10 CFR part 725, is to be provided to contractors.
    (b) The contracting officer shall insert the clause at 970.5227-2, 
Rights in Data--Technology Transfer, in management and operating 
contracts which contain the clause at 970.5227-3, Technology Transfer 
Mission. The contracting officer shall include the clause with its 
Alternate I in contracts where access to Category C-24 restricted data, 
as set forth in 10 CFR part 725, is to be provided to contractors.



Sec. 970.2770  Technology Transfer.



Sec. 970.2770-1  General.

    This subpart prescribes policies and procedures for implementing the 
National Competitiveness Technology Transfer Act of 1989, Public Law 
101-189, (15 U.S.C. 3711 et seq., as amended). The Act requires that 
technology transfer be established as a mission of each Government-owned 
laboratory operated under contract by a non-Federal entity. The National 
Defense Authorization Act for Fiscal Year 1994 expanded the definition 
of ``laboratory'' to include weapon production facilities that are 
operated for national security purposes and are engaged in the 
production, maintenance, testing, or dismantlement of a nuclear weapon 
or its components.



Sec. 970.2770-2  Policy.

    All new awards for or extensions of existing DOE laboratory or 
weapon production facility management and operating contracts shall have 
technology transfer, including authorization to award Cooperative 
Research and Development Agreements (CRADAs), as a laboratory or 
facility mission under Section 11(a)(1) of the Stevenson-Wydler 
Technology Innovation Act of 1980, Public Law 96-480 (15 U.S.C. 3701 et 
seq., as amended). A management and operating contractor for a facility 
not deemed to be a laboratory or weapon production facility may be 
authorized on a case-by-case basis to support the DOE technology 
transfer mission including, but not limited to, participating in CRADAs 
awarded by DOE laboratories and weapon production facilities.



Sec. 970.2770-3  Technology transfer and patent rights.

    The National Competitiveness Technology Transfer Act of 1989 (NCTTA) 
established technology transfer as a mission for Government-owned, 
contractor-operated laboratories, including weapons production 
facilities, and authorizes those laboratories to negotiate and award 
cooperative research and development agreements with public and private 
entities for purposes of conducting research and development and 
transferring technology to the private sector. In implementing the 
NCTTA, DOE has negotiated technology transfer clauses with the 
contractors managing and operating its laboratories. Those technology 
transfer clauses must be read in concert with the patent rights clause 
required by this subpart. Thus, each management and operating contractor 
holds title to subject inventions for the benefit of the laboratory or 
facility being managed and operated by that contractor.



Sec. 970.2770-4  Contract clause.

    (a) The contracting officer shall insert the clause at 970.5227-3, 
Technology Transfer Mission, in each solicitation for a new or an 
extension of an existing laboratory or weapon production facility 
management and operating contract.
    (b) If the contractor is a nonprofit organization or small business 
eligible under 35 U.S.C. 200 et seq., to receive title to any inventions 
under the contract and proposes to fund at private expense the 
maintaining, licensing, and marketing of the inventions, the contracting 
officer shall use the basic clause with its Alternate I.
    (c) If the facility is operated for national security purposes and 
engaged in the production, maintenance, testing, or dismantlement of a 
nuclear weapon or its components, the contracting officer shall use the 
basic clause with its Alternate II.

[[Page 492]]

                   Subpart 970.28_Bonds and Insurance



Sec. 970.2803  Insurance.



Sec. 970.2803-1  Workers' Compensation Insurance.

    (a) Policies and requirements. (1) Workers' compensation insurance 
protects employers against liability imposed by workers' compensation 
laws for injury or death to employees arising out of, or in the course 
of, their employment. This type of insurance is required by state laws 
unless employers have acceptable programs of self-insurance.
    (2) Special requirements. Certain workers' compensation laws contain 
provisions which result in limiting the protection afforded persons 
subject to such laws. The policy with respect to these limitations as 
they affect persons employed by management and operating contractors is 
set forth as follows:
    (i) Elective provisions. Some worker's compensation laws permit an 
employer to elect not to be subject to its provisions. It is DOE policy 
to require these contractors to be subject to workers' compensation laws 
in jurisdictions permitting election.
    (ii) Statutory immunity. Under the provisions of some workers' 
compensation laws, certain types of employers; e.g., nonprofit 
educational institutions, are relieved from liability. If a contractor 
has a statutory option to accept liability, it is DOE policy to require 
the contractor to do so.
    (iii) Limited medical benefits. Some workers' compensation laws 
limit the liability of the employer for medical care to a maximum dollar 
amount or to a specified period of time. In such cases, a contractor's 
workers' compensation insurance policy should contain a standard extra-
statutory medical coverage endorsement.
    (iv) Limits on occupational disease coverage and employers' 
liability. Some workers' compensation laws do not provide coverage for 
all occupational diseases. In such situations, a contractor's workers' 
compensation insurance policy should contain voluntary coverage for all 
occupational diseases.
    (3) Contractor ``employees' benefit plan''--self-insurers. The 
policies and requirements set forth in paragraph (a)(2) of this section 
apply where management and operating contractors purchase workers' 
compensation insurance. With respect to self-insured contractors, the 
objectives specified in paragraph (a)(2) also shall be met through 
primary or excess workers' compensation and employers' liability 
insurance policy(ies) or an approved combination thereof. ``Employees'' 
benefit plans'' which were established in prior years may be continued 
to contrast termination at existing benefit levels.
    (b) Assignment of responsibilities. (1) Office of Resource 
Management, within the Headquarters procurement organization, other 
officials, and the Heads of Contracting Activities, consistent with 
their delegations of responsibility, shall assure management and 
operating contracts are consistent with the policies and requirements of 
paragraph (a) of this section.
    (2) In discharging assigned responsibility, the Heads of Contracting 
Activities shall--
    (i) Periodically review workers' compensation insurance programs of 
management and operating contractors in the light of applicable workers' 
compensation statutes to assure conformance with the requirements of 
paragraph (a) of this section.
    (ii) Evaluate the adequacy of coverage of ``self-insured'' workers'' 
compensation programs;
    (iii) Provide arrangements for the administration of any existing 
``employees'' benefit plans until such plans'' are terminated; and
    (iv) Submit to the Office of Resource Management, within the 
Headquarters procurement organization, all proposals for the 
modification of existing ``employees' benefit plans.''
    (3) The Office of Resource Management, within the Headquarters 
procurement organization, is responsible for approving management and 
operating contractor ``employees' benefit plans.''

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36372, July 22, 2009]



Sec. 970.2803-2  Contract clause.

    The contracting officer shall insert the clause at 970.5228-1, 
Insurance--

[[Page 493]]

Litigation and Claims, instead of the clause at 48 CFR 52.228-7, in all 
management and operating contracts. Paragraphs (f)(3)(C) and (g)(2) of 
that clause apply to a nonprofit contractor only to the extent 
specifically provided in the individual contract.

[78 FR 25817, May 3, 2013]

                          Subpart 970.29_Taxes



Sec. 970.2902  Federal excise taxes.



Sec. 970.2902-3  Other Federal tax exemptions.

    (a) The exemption respecting taxes on communication services or 
facilities has been held to extend to such services when furnished to 
Department of Energy (DOE) management and operating contractors who pay 
for such services or facilities from advances made to them by DOE under 
their contracts.
    (c) Where it is considered that a request for an additional 
exemption in the performance of a management and operating contract 
would be justified, a recommendation that such a request be made should 
be forwarded to the Chief Financial Officer, Headquarters.
    (d) Where tax exemption certificates are required in connection with 
the taxes cited in this section, the Head of the Contracting Activity 
will supply standard Government forms (SF 1094, U.S. Tax Exemption 
Certificate) on request.

[65 FR 81009, Dec. 22, 2000. Redesignated and amended at 74 FR 36372, 
July 22, 2009]



Sec. 970.2903  State and local taxes.



Sec. 970.2903-2  Application of State and local taxes to the Government.

    It is DOE policy to secure those immunities or exemptions from state 
and local taxes to which it is entitled under the Federal Constitution 
or state laws. In carrying out this policy, the Heads of Contracting 
Activities shall--
    (a) Take all necessary steps to preclude payment of any taxes for 
which any of the immunities or exemptions cited in this subpart are 
available. Advice of Counsel should be sought as to the availability of 
such immunities or exemptions; and
    (b) Acquire directly and furnish to contractors as Government 
furnished property, equipment, material, or services when, in the 
opinion of the Head of the Contracting Activity--
    (1) Such direct acquisition will result in substantial savings to 
the Government, taking into consideration any additional administrative 
costs;
    (2) Such direct acquisition will not have a substantial adverse 
effect on the relationship between DOE and its contractor; and
    (3) Such direct acquisition will not have a substantial adverse 
effect on the DOE program or schedules.

[65 FR 81009, Dec. 22, 2000. Redesignated and amended at 74 FR 36372, 
July 22, 2009]



Sec. 970.2904  Contract clauses.



Sec. 970.2904-1  Management and operating contracts.

    (a) Pursuant to 48 CFR 29.401-4(b), the clause at 48 CFR 52.229-10, 
State of New Mexico Gross Receipts and Compensating Tax, is applicable 
to management and operating contracts that meet the three conditions 
stated. The contracting officer shall modify paragraph (b) of the clause 
to replace the phrase ``Allowable Cost and Payment'' with the phrase 
``Payments and Advances.''
    (b) Contracting officers shall include the clause at 970.5229-1, 
State and Local Taxes, in management and operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]

         Subpart 970.30_Cost Accounting Standards Administration



Sec. 970.3002  CAS program requirements.



Sec. 970.3002-1  CAS applicability.

    The provisions of 48 CFR part 30 and 48 CFR chapter 99 (FAR 
Appendix) shall be followed for management and operating contracts.

         Subpart 970.31_Contract Cost Principles and Procedures



Sec. 970.3101-00-70  Scope of subpart.

    (a) The Senior Procurement Executive is responsible for developing 
and

[[Page 494]]

revising the policy and procedures for the determination of allowable 
costs reimbursable under a management and operating contract, and for 
coordination with other Headquarters' offices having joint interests.
    (b) The Head of the Contracting Activity is responsible for 
following the policy, principles and standards set forth in this subpart 
in establishing the compensation and reimbursement provisions of 
contracts and subcontracts and for submission of deviations for 
Headquarters consideration and approval.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36378, July 22, 2009]



Sec. 970.3101-9  Advance agreements.

    (i) At any time, in accordance with the contract terms and 
conditions, the contracting officer may pursue an advance agreement in 
connection with any cost item under a contract.



Sec. 970.3101-10  Indirect cost rate certification and penalties on 
          unallowable costs.

    (a) Certain contracts require certification of the costs proposed 
for final payment purposes. Section 970.4207-03-02 states the 
administrative procedures for the certification provisions and the 
related contract clause prescription.
    (b) If unallowable costs are included in final cost settlement 
proposals, penalties may be assessed. Section 970.4207-03-02 states the 
administrative procedures for penalty assessment provisions and the 
related clause prescription.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3102-3-70  Home office expenses.

    (a) For on-site work, DOE's fee for management and operating 
contracts, determined under the policy of and calculated per the 
procedures in 970.1504-1-3, generally provides adequate compensation for 
home or corporate office general and administrative expenses incurred in 
the general management of the contractor's business as a whole.
    (1) DOE recognizes that some Home Office Expenses are incurred for 
the benefit of a management and operating contract. DOE has elected to 
recognize that benefit through fee due to the difficulty of determining 
the dollar value applicable to any management and operating contract. 
The difficulty arises because:
    (i) The general construct of a management and operating contract 
results in minimal Home Office involvement in the contract work, and
    (ii) Conventional Home Office Expense allocation techniques that use 
bases such as total operating costs, labor dollars, hours etc., are not 
appropriate because they inherently assume significant contractor 
investment (in terms of its own resources, such as, labor, material, 
overhead, etc.). Contractor investments are minimal under DOE's 
operating and management contracts. The contracts are totally financed 
by DOE advance payments, and DOE provides government-owned facilities, 
property, and other needed resources.
    (2) From time to time, the fee for a management and operating 
contract may not be adequate compensation for Home Office Expenses 
incurred for the benefit of the contract. An indication that such a case 
exists is the need for significant home office support to deal with 
issues at the site that occur without the fault or negligence of the 
contractor, for example, the need for home office legal support to deal 
with third party, environmental, safety, or health issues.
    (3) In such a case, the contracting officer, after obtaining the 
HCA's approval, may consider a contractor request for additional 
compensation. The contractor may request--
    (i) Fee in addition to its normal fee (but see 970.1504-1-3(b)(1) if 
the contract is for the management and operation of a laboratory); or
    (ii) Compensation on the basis of actual cost.
    (4) Because the contract's fee provides some compensation for Home 
Office Expenses, the contractor's request for additional compensation 
must always be for an amount less than the Home Office Expenses that are 
incurred for the benefit of the management and operating contract.
    (b) For off-site work, the DOE allows Home Office Expenses under 
architect-

[[Page 495]]

engineer, supply and research contracts with commercial contractors 
performing the work in their own facilities. Home Office Expenses may, 
however, be included for reimbursement under such DOE off-site 
architect-engineer, supply and research contracts, only to the extent 
that they are determined, after careful examination, to be allowable, 
reasonable, and properly allocable to the work. Work performed in a 
contractor's own facilities under a management and operating or 
construction contract may likewise be allowed to bear the properly 
allocable portion of allowable Home Office Expenses.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3102-05  Selected costs.



Sec. 970.3102-05-4  Bonding costs.

    (d) The allowability of bonding costs shall be determined pursuant 
to 970.5228-1, Insurance-litigation and claims.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3102-05-6  Compensation for personal services.

    (a)(6) In determining the reasonableness of compensation, the 
compensation of each individual contractor employee normally need not be 
subjected to review and approval. Generally, the compensation paid 
individual employees should be left to the judgment of contractors 
subject to the limitations of DOE-approved compensation policies, 
programs, classification systems, and schedules, and amounts of money 
authorized for wage and salary increases for groups of employees. 
However, the contracting officer shall designate a compensation 
threshold appropriate for the particular situation. The contract shall 
specifically provide that contracting officer approval is required for 
compensating an individual contractor employee above the threshold if a 
total of 50 percent or more of such compensation is reimbursed under DOE 
cost-type contracts. For purposes of designating the threshold, total 
compensation includes only the employee's salary and cash bonus or 
incentive compensation.
    (7)(i) Reimbursable costs for compensation for personal services are 
to be set forth in the contract. This compensation shall be set forth 
using the principles and policies of 48 CFR 31.205-6, Compensation, as 
supplemented by this section, 970.3102-05-6, and other pertinent parts 
of the DEAR. Costs that are unallowable under other contract terms shall 
not be allowable as compensation for personnel services.
    (ii) The contract sets forth, in detail, personnel costs and related 
expenses allowable under the contract and documents personnel policies, 
practices and plans which have been found acceptable by the contracting 
officer. The contractor will advise DOE of any proposed changes in any 
matters covered by these policies, practices, or plans which relate to 
personnel costs. Types of personnel costs and related expenses addressed 
in the contract are as follows: Salaries and wages; bonuses and 
incentive compensation; overtime, shift differential, holiday, and other 
premium pay for time worked; welfare benefits and retirement programs; 
paid time off, and salaries and wages to employees in their capacity as 
union stewards and committeemen for time spent in handling grievances, 
or serving on labor management (contractor) committees provided, 
however, that the contracting officer's approval is required in each 
instance of total compensation to an individual employee above an annual 
rate as specified in the contract.
    (p)(1) Notwithstanding the costs cited in this subsection, incurred 
for compensation of a senior executive in excess of the benchmark 
compensation amount determined applicable for the contractor fiscal year 
by the Administrator, Office of Federal Procurement Policy, are 
unallowable. Allowable costs of executive compensation shall be 
determined pursuant to 48 CFR 31.205-6(p).

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68219, Nov. 5, 2010]



Sec. 970.3102-05-18  Independent research and development and bid and 
          proposal costs.

    (c) Independent Research and Development and Bid and Proposal costs 
are

[[Page 496]]

unallowable. However, contracting officer approved Laboratory Directed 
Research and Development costs and those costs incurred in support of 
the Department's various reimbursable programs are allowable.



Sec. 970.3102-05-19  Insurance and indemnification.

    The supplemental material on the costs of insurance and 
indemnification is found in 970.5228-1, Insurance-Litigation and Claims.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3102-05-22  Lobbying and political activity costs.

    (b) Costs of the following activities are excepted from 48 CFR 
31.205-22, Lobbying and political activity costs, coverage, provided 
that the resultant costs are reasonable and otherwise fall into the 
following exceptions:
    (1) Providing Members of Congress, their staff members or staff of 
cognizant legislative committees, in response to a request (written or 
oral, prior or contemporaneous) from Members of Congress, their staff 
members or staff of cognizant legislative committees, or as otherwise 
directed by the Contracting Officer, information or expert advice of a 
factual, technical, or scientific nature, with respect to topics 
directly related to the performance of the contract or proposed 
legislation. In providing this information or expert advice, the 
contractor shall indicate to the recipient that it is not presenting the 
views of DOE. Reasonable costs for transportation, lodging or meals 
incurred by contractor employees for the purpose of providing such 
information or expert advice shall also be reimbursable, provided the 
request for such information or expert advice is a prior written request 
signed by a Member of Congress.
    (2) Providing State legislatures or subdivisions thereof, their 
staff members, or staff of cognizant legislative committees, in response 
to a prior written request from a State legislator, or as otherwise 
directed by the Contracting Officer, information or expert advice of a 
factual, technical, or scientific nature, with respect to topics 
directly related to the performance of the contract or proposed 
legislation. In providing this information or expert advice, the 
contractor shall indicate to the recipient that it is not presenting the 
views of DOE. Reasonable costs for transportation, lodging, or meals 
incurred by contractor employees shall be reimbursable.



Sec. 970.3102-05-28  Other business expenses.

    (i) Reasonable costs associated with the establishment and 
maintenance of financial institution accounts in connection with the 
work hereunder are allowable, including, but not limited to, service 
charges, the cost of disbursing cash, necessary guards, cashiers, and 
paymasters. If payments to employees are made by check, facilities and 
arrangements for cashing checks may be provided without expense to the 
employees, subject to the approval of the contracting officer.



Sec. 970.3102-05-30  Patent costs.



Sec. 970.3102-05-30-70  Patent costs and technology transfer costs.

    (a) For management and operating contracts that do not include the 
clause at 970.5227-3, Technology Transfer Mission, the cost principle at 
48 CFR 31.205-30 applies.
    (b) For management and operating contracts that do include the 
clause at 970.5227-3, Technology Transfer Mission, the following patent 
and technology transfer costs are allowable--
    (1) Costs of preparing invention disclosures, reports, and other 
patent related documents required by the contract;
    (2) Costs of searching the art relating to invention disclosures;
    (3) Costs incurred in connection with the filing and prosecution of 
patent applications for subject inventions, except where those costs are 
incurred as part of a privately funded technology transfer program 
recognized under the contract; and
    (4) Other costs incurred in accordance with the patent rights clause 
and the Technology Transfer Mission clause included in the contract.

[65 FR 81009, Dec. 22, 2000. Redesignated and amended at 74 FR 36373, 
July 22, 2009]

[[Page 497]]



Sec. 970.3102-05-33  Professional and consultant service costs.

    (g) Section 931.205-33 is applicable to management and operating 
contracts under this part.

[66 FR 4627, Jan. 18, 2001]



Sec. 970.3102-05-46  Travel costs.

    (a) Costs for transportation, lodging, meals, and incidental 
expenses. (1) Costs incurred by contractor personnel on official company 
business are allowable, subject to the limitations contained in this 
subsection. Costs for transportation may be based on mileage rates, 
actual costs incurred, or on a combination thereof, provided the method 
used results in a reasonable charge. Costs for lodging, meals, and 
incidental expenses may be based on per diem, actual expenses, or a 
combination thereof, provided the method used results in a reasonable 
charge.
    (2) Except as provided in paragraph (a)(3) of this subsection, costs 
incurred for lodging, meals, and incidental expenses (as defined in the 
regulations cited in paragraphs (a)(2)(i) through (iii) of this 
subsection) shall be considered to be reasonable and allowable only to 
the extent that they do not exceed on a daily basis the maximum per diem 
rates in effect at the time of travel as set forth in the--
    (i) Federal Travel Regulation, prescribed by the General Services 
Administration (41 CFR chapters 300 through 304), for travel in the 
conterminous 48 United States, available on a subscription basis from 
the Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402, Stock No. 922-002-00000-2;
    (ii) Joint Travel Regulations, DoD Civilian Personnel, Appendix A, 
prescribed by the Department of Defense, for travel in Alaska, Hawaii, 
The Commonwealth of Puerto Rico, and territories and possessions of the 
United States, available on a subscription basis from the Superintendent 
of Documents, U.S. Government Printing Office, Washington, DC 20402, 
Stock No. 908-010-00000-1; or
    (iii) Standardized Regulations (Government Civilians, Foreign 
Areas), section 925, ``Maximum Travel Per Diem Allowances for Foreign 
Areas,'' prescribed by the Department of State, for travel in areas not 
covered in paragraphs (a)(2)(i) and (ii) of this subsection, available 
on a subscription basis from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, Stock No. 744-008-
00000-0.
    (3) In special or unusual situations, actual costs in excess of the 
maximum per diem rates are allowable provided that such amounts do not 
exceed the higher amounts authorized for Federal civilian employees as 
permitted in the regulations referenced in paragraphs (a)(2)(i), (ii), 
or (iii) of this subsection. For such higher amounts to be allowable, 
all of the following conditions must be met:
    (i) One of the conditions warranting approval of the actual expense 
method, as set forth in the regulations referred to in paragraphs 
(a)(2)(i), (ii), or (iii) of this subsection, must exist.
    (ii) A written justification for use of the higher amounts must be 
approved by an officer of the contractor's organization or designee to 
ensure that the authority is properly administered and controlled to 
prevent abuse.
    (iii) If it becomes necessary to exercise the authority to use the 
higher actual expense method repetitively or on a continuing basis in a 
particular area, the contractor must obtain advance approval from the 
contracting officer.
    (iv) Documentation to support actual costs incurred shall be in 
accordance with the contractor's established practices, subject to 
paragraph (a)(7) of this subsection, and provided that a receipt is 
required for each expenditure of $75.00 or more. The approved 
justification required by paragraph (a)(3)(ii) and, if applicable, 
paragraph (a)(3)(iii) of this subsection must be retained.
    (4) Paragraphs (a)(2) and (a)(3) of this subsection do not 
incorporate the regulations cited in paragraphs (a)(2)(i), (ii), and 
(iii) of this subsection in their entirety. Only the maximum per diem 
rates, the definitions of lodging, meals, and incidental expenses, and 
the regulatory coverage dealing with special or unusual situations are 
incorporated in this subsection.
    (5) An advance agreement (see 48 CFR 31.109 and 970.3101-9) with 
respect to compliance with paragraphs (a)(2) and

[[Page 498]]

(a)(3) of this subsection may be useful and desirable.
    (6)(i) The maximum per diem rates referenced in paragraph (a)(2) of 
this subsection generally would not constitute a reasonable daily 
charge--
    (A) When no lodging costs are incurred; and/or
    (B) On partial travel days (e.g., day of departure and return).
    (ii) Appropriate downward adjustments from the maximum per diem 
rates would normally be required under these circumstances. While these 
adjustments need not be calculated in accordance with the Federal Travel 
Regulation or Joint Travel Regulations, they must result in a reasonable 
charge.
    (7) Costs shall be allowable only if the following information is 
documented:
    (i) Date and place (city, town, or other similar designation) of the 
expenses;
    (ii) Purpose of the trip; and
    (iii) Name of person on trip and that person's title or relationship 
to the contractor.
    (b) Travel costs incurred in the normal course of overall 
administration of the business are allowable and shall be treated as 
indirect costs.
    (c) Travel costs directly attributable to specific contract 
performance are allowable and may be charged to the contract under 48 
CFR 31.202.
    (d) Airfare costs in excess of the lowest customary standard, coach, 
or equivalent airfare offered during normal business hours are 
unallowable except when such accommodations require circuitous routing, 
require travel during unreasonable hours, excessively prolong travel, 
result in increased cost that would offset transportation savings, are 
not reasonably adequate for the physical or medical needs of the 
traveler, or are not reasonably available to meet mission requirements. 
However, in order for airfare costs in excess of the standard airfare to 
be allowable, the applicable condition(s) must be documented and 
justified.
    (e)(1) ``Cost of travel by contractor-owned, -leased, or -chartered 
aircraft,'' as used in this paragraph, includes the cost of lease, 
charter, operation (including personnel), maintenance, depreciation, 
insurance, and other related costs.
    (2) The costs of travel by contractor-owned, -leased, or -chartered 
aircraft are limited to the standard airfare described in paragraph (d) 
of this subsection for the flight destination unless travel by such 
aircraft is specifically required by contract specification, term, or 
condition, or a higher amount is approved by the contracting officer. A 
higher amount may be agreed to when one or more of the circumstances for 
justifying higher than standard airfare listed in paragraph (d) of this 
subsection are applicable, or when an advance agreement under paragraph 
(e)(3) of this subsection has been executed. In all cases, travel by 
contractor-owned, -leased, or -chartered aircraft must be fully 
documented and justified. For each contractor-owned, -leased, or -
chartered aircraft used for any business purpose which is charged or 
allocated, directly or indirectly, to a Government contract, the 
contractor must maintain and make available manifest/logs for all 
flights on such company aircraft. As a minimum, the manifest/log shall 
indicate--
    (i) Date, time, and points of departure;
    (ii) Destination, date, and time of arrival;
    (iii) Name of each passenger and relationship to the contractor;
    (iv) Authorization for trip; and
    (v) Purpose of trip.
    (3) Where an advance agreement is proposed (see 48 CFR 31.109), 
consideration may be given to the following:
    (i) Whether scheduled commercial airlines or other suitable, less 
costly, travel facilities are available at reasonable times, with 
reasonable frequency, and serve the required destinations conveniently;
    (ii) Whether increased flexibility in scheduling results in time 
savings and more effective use of personnel that would outweigh 
additional travel costs.
    (f) Costs of contractor-owned or -leased automobiles, as used in 
this paragraph, include the costs of lease, operation (including 
personnel), maintenance, depreciation, insurance, etc. These costs are 
allowable, if reasonable, to the extent that the automobiles are used 
for company business.

[[Page 499]]

That portion of the cost of company-furnished automobiles that relates 
to personal use by employees (including transportation to and from work) 
is compensation for personal services and is unallowable as stated in 48 
CFR 31.205-6(m)(2).

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009; 
75 FR 68220, Nov. 5, 2010]



Sec. 970.3102-05-47  Costs related to legal and other proceedings.

    (h) Costs associated with whistleblower actions. Section 931.205-
47(h) of this chapter is applicable to management and operating 
contracts under this part and must be included in the contract's cost 
reimbursement subcontracts.



Sec. 970.3102-05-70  Preexisting conditions.

    Clause 970.5231-4, Preexisting conditions, provides guidance on 
situations where this category of costs may be allowable.

[65 FR 81009, Dec. 22, 2000. Redesignated at 67 FR 14873, Mar. 28, 2002; 
74 FR 36373, July 22, 2009]



Sec. 970.3170  Contract clause.

    The contracting officer shall insert the clause at 970.5231-4, 
Preexisting Conditions, in all management and operating contracts.
    (a) The contracting officer shall include the clause with its 
Alternate I in contracts with incumbent management and operating 
contractors.
    (b) The contracting officer shall include the clause with its 
Alternate II in contracts with management and operating contractors not 
previously working at that particular site or facility.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]

                    Subpart 970.32_Contract Financing



Sec. 970.3200  Policy.

    It is the policy of the Department of Energy (DOE) to finance 
management and operating contracts through advance payments and the use 
of special financial institution accounts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3200-1  Reduction or suspension of advance, partial, or 
          progress payments.

    (a) The procedures prescribed at 48 CFR 32.006 shall be followed 
regarding the reduction or suspension of payments under management and 
operating contracts.
    (b) Agency head responsibilities under 48 CFR 32.006 have been 
delegated to the Senior Procurement Executive.
    (c) The remedy coordination official is responsible for receiving, 
assessing, and making recommendations to the Senior Procurement 
Executive.



Sec. 970.3200-1-1  Contract clause.

    The contracting officer shall insert the clause at 970.5232-1, 
Reduction or suspension of contract payments, in management and 
operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3204  Advance payments.



Sec. 970.3204-1  Applicability.

    (a) The Head of the Contracting Activity shall authorize advance 
payments without interest, and approve the findings, determinations and 
the contract terms and conditions concerning advance payments in 
accordance with the procedures set forth in 48 CFR subpart 32.4, Advance 
Payments for Non-Commercial Items, as supplemented by subpart 932.4.
    (b) Advance payments shall be made under a payments cleared 
financing arrangement for deposit in a special financial institution 
account or, at the option of the Government, by direct payment or other 
payment mechanism to the contractor.
    (c) Prior to providing any advance payments, the contracting officer 
shall enter into an agreement with the contractor and a financial 
institution regarding a special financial institution account where the 
advanced funds will be deposited by the Government. Such agreement 
shall--

[[Page 500]]

    (1) Provide that DOE shall retain title to the unexpended balance of 
funds in the special financial institution account including 
collections, if any, deposited by the contractor;
    (2) Provide that the title in paragraph (c)(1) of this subsection 
shall be superior to any claim or lien of the financial institution of 
deposit or others; and
    (3) Incorporate all applicable requirements, as determined by the 
Office of Chief Financial Officer.
    (d) Deviations from the requirements cited in paragraph (c) of this 
subsection shall be considered a deviation requiring approval of the 
Head of the Contracting Activity.
    (e) Letter-of-credit arrangements shall be prepared in accordance 
with 48 CFR 32.406, Letters of Credit, and shall be coordinated between 
the procurement and finance organizations.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009; 
75 FR 68221, Nov. 5, 2010]



Sec. 970.3270  Standard financial management clauses.

    (a) The following DEAR and FAR clauses are standard financial 
management clauses. The contracting officer shall insert them in all 
management and operating contracts:
    (1) 970.5232-2, Payments and Advances. (i) The contracting officer 
shall insert the basic clause with its Alternate I if a separate fixed-
fee is provided for a separate item of work.
    (ii) The contracting officer shall insert the basic clause with its 
Alternate II when total available fee provisions in the basic clause are 
used.
    (iii) The contracting officer shall insert the basic clause with its 
Alternate III in management and operating contracts with integrated 
accounting systems.
    (iv) The contracting officer shall insert the basic clause with its 
Alternate IV in management and operating contracts without integrated 
accounting systems.
    (2) 970.5232-3, Accounts, records, and inspection. If the contract 
includes the clause at 48 CFR 52.215-11, Price Reduction for Defective 
Cost or Pricing Data--Modifications, the contracting officer shall use 
the clause with its Alternate I.
    (3) 970.5232-4, Obligation of funds. The contracting officer may use 
the clause with its Alternate I in contracts which, expressly or 
otherwise, provide a contractual basis for equivalent controls in a 
separate clause.
    (4) 970.5203-1, Management controls.
    (5) 970.5232-5, Liability with respect to Cost Accounting Standards.
    (6) 970.5232-6, Work for others funding authorization.
    (7) 48 CFR 52.230-2, Cost Accounting Standards.
    (8) 48 CFR 52.230-6, Administration of Cost Accounting Standards.
    (b) The following DEAR clauses are standard financial management 
clauses. The contracting officer shall insert them in all management and 
operating contracts with integrated accounting systems:
    (1) 970.5232-7, Financial management system.
    (2) 970.5232-8, Integrated accounting.
    (c) Any deviations from the standard financial management clauses 
specified in paragraphs (a) and (b) of this section require the approval 
of the Head of the Contracting Activity and the written concurrence of 
the Department's Chief Financial Officer.

[65 FR 81009, Dec. 22, 2000, as amended at 72 FR 29081, May 24, 2007; 74 
FR 36373, July 22, 2009]

                 Subpart 970.34_Major System Acquisition



Sec. 970.3405  General requirements.



Sec. 970.3405-2  Mission-oriented solicitation.

    Contractors shall be required to promptly advise the Department of 
Energy (DOE) contracting officer of any advance notices of, or 
solicitations for, requirements which would logically involve DOE 
facilities or resources operated or managed by the contractor, which are 
received from another agency pursuant to 48 CFR 34.005. Management and 
operating contracts shall provide that the contractor shall not respond 
or otherwise propose to participate in response to the requirements of 
such solicitations unless the

[[Page 501]]

contractor has obtained the prior written approval of the DOE manager of 
the field activity having cognizance over the contract. Such approval 
shall not be given except in compliance with applicable DOE directives, 
and with the concurrence of the cognizant Senior Program Official.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009. 
Redesignated at 75 FR 68220, Nov. 5, 2010]



Sec. 970.35  Research and development contracting.

           Subpart 970.35_Research and Development Contracting



Sec. 970.3500  Scope of subpart.

    This subpart implements 48 CFR 35.017 regarding the establishment, 
use, review, and termination of Federally Funded Research and 
Development Centers (FFRDCs) sponsored by the Department of Energy 
(DOE).

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3501  Federally funded research and development centers.



Sec. 970.3501-1  Sponsoring agreements.

    (a) The contract award document constitutes the sponsoring agreement 
between the Department of Energy and the contractor operating an FFRDC.
    (b) The contract statement of work shall define the purpose and 
mission of the FFRDC.
    (c) Other elements of the sponsoring agreement which shall be 
incorporated into the contract include:
    (1) The appropriate termination clause of the contract (as 
prescribed in 48 CFR subpart 49.5).
    (2) The plan for the identification, use, and disposition of 
retained earnings developed pursuant to 970.1504-1-3(c)(6), if 
applicable;
    (3) The clause entitled ``Federally Funded Research and Development 
Center Sponsoring Agreement,'' which, in part, prescribes limitations on 
the FFRDC competing with the private sector, and requirements for the 
FFRDC's acceptance of work from a nonsponsor; and
    (4) Other terms and conditions considered necessary for the 
particular circumstances of the FFRDC (e.g., advance understandings on 
particular cost items).

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3501-2  Using an FFRDC.

    The contractor may only accept work from a non-sponsor (as defined 
in 48 CFR 35.017) in accordance with the requirements of DOE Order 
481.1, Work for Others (Non-Department of Energy Funded Work).

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3501-3  Reviewing FFRDC's.

    (a) All Department of Energy sponsored FFRDC's are operated by 
management and operating contractors.
    (b) Coincident with the review required by 48 CFR 17.605(b) and 
970.1706-1(b) regarding the decision to extend or compete a management 
and operating contract, the contracting officer shall, in accordance 
with internal Departmental procedures:
    (1) Conduct the review required by 48 CFR 35.017-4 concerning the 
use and need for the FFRDC; and
    (2) Recommend for Secretarial approval, the continuation or 
termination of the Department's sponsorship of an FFRDC at the time 
authorization is required to extend or compete a management and 
operating contract.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]



Sec. 970.3501-4  Contract clause.

    The contracting officer shall insert the clause at 970.5235-1, 
Federally Funded Research and Development Center Sponsoring Agreement, 
in all solicitations and contracts for the management and operation of 
an FFRDC sponsored by the Department of Energy.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36373, July 22, 2009]

[[Page 502]]

      Subpart 970.36_Construction and Architect-Engineer Contracts



Sec. 970.3605  Contract clauses.



Sec. 970.3605-1  Other contracts.

    The clause at 48 CFR 52.236-8, Other Contracts, shall be used in all 
management and operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.3605-2  Special construction clause for operating contracts.

    The clause at 48 CFR 970.5236-1, Government Facility Subcontract 
Approval, shall be used in management and operating contracts when the 
contractor will not perform covered work with its own forces but may 
procure construction by subcontract.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]

            Subpart 970.37_Facilities Management Contracting



Sec. 970.3706  Performance-based acquisition.



Sec. 970.3706-1  General.

    For policy and guidance on performance-based contracting for 
management and operating (M&O) contracts, see 970.1100.

[75 FR 68220, Nov. 5, 2010]



Sec. 970.3770  Facilities management.



Sec. 970.3770-1  Policy.

    Contractors managing the Department of Energy (DOE) facilities shall 
be required to comply with the DOE Directives applicable to facilities 
management. The use of the DOE Directives is prescribed in 970.0470.

[75 FR 68220, Nov. 5, 2010]



Sec. 970.3770-2  [Reserved]

             Subpart 970.41_Acquisition of Utility Services



Sec. 970.4102  Acquiring utility services.



Sec. 970.4102-1  Policy.

    (a) Utility services defined at 48 CFR 41.101 for the furnishing of 
electricity, gas (natural or manufactured), steam, water, and/or 
sewerage to facilities owned or leased by Department of Energy (DOE) 
shall be acquired directly by DOE and not by a contractor using a 
subcontractor arrangement, except as provided in paragraph (b) of this 
subsection.
    (b) Where it is determined to be in the best interest of the 
Government, a DOE contracting activity may authorize a management and 
operating contractor for a facility to acquire such utility service for 
the facility, after requesting and receiving concurrence to make such an 
authorization from the Director, Public Utilities Branch, Headquarters. 
Any request for such concurrence should be included in the Utility 
Service Requirements and Options Studies required by DOE Order 430.2, or 
its successor. Alternatively, it may be made in a separate document 
submitted to the Director of that office early in the acquisition cycle. 
Any request shall set forth why it is in the best interest of the DOE to 
acquire utility service(s) by subcontract, i.e., what the benefits are, 
such as economic advantage.
    (c) The requirements of 48 CFR part 41, this section, and DOE Order 
430.2, or its successor, shall be applied to a subcontract level 
acquisition for furnishing utility services to a facility owned or 
leased by DOE.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]

                 Subpart 970.42_Contract Administration



Sec. 970.4207-03-02  Certificate of costs.

    (a) The contracting officer shall require that management and 
operating contractors provide a submission, pursuant to 970.5232-2-(j), 
for settlement of

[[Page 503]]

costs incurred during the period stipulated on the submission and a 
certification that the costs included in the submission are allowable. 
The contracting officer shall assess a penalty pursuant to 970.5242-1 if 
unallowable costs are included in the submission. Unallowable costs are 
either expressly unallowable or determined unallowable.
    (1) An expressly unallowable cost is a particular item or type of 
cost which, under the express provisions of an applicable law, 
regulation, or this contract, is specifically named and stated to be 
unallowable.
    (2) A cost determined unallowable is one which, for that 
contractor--
    (i) Was subject to a contracting officer's final decision and not 
appealed;
    (ii) The Civilian Board of Contract Appeals or a court has 
previously ruled as unallowable; or
    (iii) Was mutually agreed to be unallowable.
    (b) If, during the review of the submission, the contracting officer 
determines that the submission contains an expressly unallowable cost or 
a cost determined to be unallowable prior to the submission, the 
contracting officer shall assess a penalty.
    (c) If the contracting officer determines that a cost submitted by 
the contractor in its submission for settlement is:
    (1) Expressly unallowable, then the contracting officer shall assess 
a penalty in an amount equal to the disallowed cost allocated to the 
contract plus interest on the paid portion of the disallowed cost. 
Interest shall be computed from the date of overpayment to the date of 
repayment using the interest rate specified by the Secretary of the 
Treasury pursuant to Public Law 92-41 (85 Stat. 97).
    (2) Determined unallowable, then the contracting officer shall 
assess a penalty in an amount equal to two times the amount of the 
disallowed cost allocated to the contract.
    (d) The contracting officer may waive the penalty provisions when:
    (1) The contractor withdraws the submission before the formal 
initiation of an audit of the submission and submits a revised 
submission;
    (2) The amount of the unallowable costs allocated to covered 
contracts is $10,000 or less; or
    (3) The contractor demonstrates to the contracting officer's 
satisfaction that:
    (i) It has established appropriate policies, personnel training, and 
an internal control and review system that provides assurances that 
unallowable costs subject to penalties are precluded from the 
contractor's submission for settlement of costs; and
    (ii) The unallowable costs subject to the penalty were inadvertently 
incorporated into the submission.
    (e) The Head of the Contracting Activity may waive the certification 
when--
    (1) It determines that it would be in the best interest of the 
United States to waive such certification; and
    (2) It states in writing the reasons for that determination and 
makes such determination available to the public.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.4207-03-70  Contract clause.

    The contracting officer shall insert the clause at 970.5242-1, 
Penalties for unallowable costs, in all management and operating 
solicitations and contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.4207-05-01  Contracting officer determination procedure.

    (b)(4) A contracting officer shall not resolve any questioned costs 
until the contracting officer has obtained--
    (i) Adequate documentation with respect to such costs; and
    (ii) The opinion of the Department of Energy's auditor on the 
allowability of such costs.
    (5) The contracting officer shall ensure that the documentation 
supporting the final settlement addresses the amount of the questioned 
costs and the subsequent disposition of such questioned costs.
    (6) The contracting officer shall ensure, to the maximum extent 
practicable, that the Department of Energy's auditor is afforded an 
opportunity to attend any negotiation or meeting

[[Page 504]]

with the contractor regarding a determination of allowability.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]

                  Subpart 970.43_Contract Modifications



Sec. 970.4302  Changes.



Sec. 970.4302-1  Contract clause.

    The contracting officer shall insert the clause at 970.5243-1, 
Changes, in all management and operating contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]

      Subpart 970.44_Management and Operating Contractor Purchasing



Sec. 970.4400  Scope.

    This subpart prescribes policies and procedures concerning the 
purchasing systems and activities of management and operating 
contractors.



Sec. 970.4401  Responsibilities.



Sec. 970.4401-1  General.

    (a) In the Department of Energy (DOE), overall responsibility for 
the oversight of the performance of management and operating 
contractors, including their purchasing activities, rests with the 
cognizant DOE contracting activity and, in particular, the Head of the 
Contracting Activity (HCA). Contracting officers are responsible for the 
management and operating contractors' conformance with this subpart and 
the applicable terms and conditions of their contracts, and for 
determining whether those purchasing activities provide timely and 
effective support to DOE programs.
    (b) In carrying out their overall responsibilities, HCAs shall--
    (1) Require management and operating contractors to maintain written 
descriptions of their individual purchasing systems and methods and 
further require that, upon award or extension of the contract, the 
entire written description be submitted to the contracting officer for 
review and acceptance;
    (2) Require that any changes to the management and operating 
contractor's written description having any substantive impact upon the 
contractor's purchasing system and methods be submitted to the 
contracting officer for review and acceptance prior to issuance;
    (3) Ensure the review of individual purchasing actions of certain 
types, or above stated dollar levels, by the contracting officer 
pursuant to 48 CFR subpart 44.2 or as set forth in the contractor's 
approved system and methods; and
    (4) Ensure that periodic appraisals of the contractor's management 
of all facets of the purchasing function, including compliance with the 
contractor's approved system and methods, are performed by the 
contracting officer. Such appraisals shall be performed through either 
of the following methodologies--
    (i) Contractor Purchasing System Reviews, conducted in accordance 
with 48 CFR subpart 44.3; or
    (ii) When approved by the contracting officer, contractor 
participation in the conduct of the Balanced Scorecard performance 
measurement and performance management system.
    (c) In performing the reviews required by paragraphs (b)(1) and (2), 
and the appraisals required by paragraph (b)(4) of this subsection, HCAs 
shall assure that contracting officers determine that the contractors' 
written systems and methods are consistent with this subpart and the 
applicable terms and conditions of their contracts.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.4401-2  Review and approval.

    (a) The Heads of the Contracting Activities shall establish 
thresholds, by subcontract type and dollar level, for the review and 
approval of proposed subcontracting actions by each management and 
operating contractor under their cognizance. Such thresholds may not 
exceed the authority delegated to the Head of the Contracting Activity 
by the Senior Procurement Executive. In establishing these thresholds, 
the Heads of the Contracting Activities should consider such factors as 
the following--

[[Page 505]]

    (1) The nature of work to be performed under the management and 
operating contract;
    (2) The size, experience, ability, reliability, and organization of 
the management and operating contractor's purchasing function;
    (3) The internal controls, procedures, and organizational stature of 
the management and operating contractor's purchasing function; and
    (4) Policies with respect to such reviews and approvals established 
by the Senior Procurement Executive.
    (b) Prior approval shall be required for the subcontracting of any 
work a contractor is obligated to perform under a contract entered into 
under section 41, entitled Production of Special Nuclear Material, of 
the Atomic Energy Act of 1954, as amended.
    (c) The Heads of the Contracting Activities shall take such action 
as may be required to insure compliance with the procedure for 
purchasing from contractor-affiliated sources or the purchase of 
specific items, or classes of items, which by the terms of the contract 
may require DOE approval.
    (d) The Heads of the Contracting Activities may raise or lower the 
review and approval thresholds established pursuant to paragraph (a) of 
this subsection at any time. Such action may be considered upon the 
periodic review of the contractor's purchasing system, but in any case 
those adjusted thresholds may not exceed the approval authority 
delegated to the Head of the Contracting Activity by the Senior 
Procurement Executive.
    (e) DOE approvals of specific proposed purchases pursuant to this 
subpart shall communicate that such approval does not relieve the 
management and operating contractor of any obligation under its prime 
contract with DOE; is given without prejudice to any rights or claims of 
the Government thereunder; creates no obligation on the part of the 
Government to the subcontractor, and is not a predetermination of the 
allowability of costs to be incurred under the subcontract.
    (f) Contracting officers shall assure that management and operating 
contractors establish and maintain subcontract files which contain those 
documents essential to present an accurate and adequate record of all 
purchasing transactions.
    (g) Contracting officers shall assure that management and operating 
contractors document purchases in writing, setting forth the information 
and data used in determining that the purchases are in the best interest 
of the Government. The scope and detail of this documentation shall be 
consistent with the nature, dollar value, and complexity of the 
purchase.
    (h) The Heads of the Contracting Activities shall assure that the 
contracting activity establishes and maintains files of the documents 
associated with the review and approval of subcontract actions subject 
to DOE review and approval. Those files shall include, among other 
necessary documentation, an appraisal of the proposed action by the 
contracting activity and a copy of the approving or disapproving 
document forwarded to the management and operating contractor, including 
a listing of any deficiencies, a listing of any required corrective 
actions, any suggestions, or other relevant comments.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.4401-3  Advance notification.

    (a) Contracting officers shall assure that the written description 
of the management and operating contractor's purchasing system and 
methods provides for advance notice to the DOE contracting officer of 
the proposed award of the following specified types of subcontracts, 
except as stated in paragraph (b) of this subsection--
    (1) Pursuant to section 304(b) of the Federal Property and 
Administrative Service Act of 1949, as amended (41 U.S.C. 254(b)):
    (i) Cost reimbursement-type subcontracts of any award value; and
    (ii) Fixed price-type subcontracts which exceed the simplified 
acquisition threshold, or 5 percent of the total estimated cost of the 
prime contract.
    (2) Purchases from contractor-affiliated sources over a value 
established by the HCA.
    (b) Pursuant to section 602(d)13 of the Act (40 U.S.C. 474(13)) 
referred to in

[[Page 506]]

paragraph (a) of this section, the advance notification requirement for 
the types of purchases listed in paragraphs (a) (1) and (2) of this 
subsection shall not apply to subcontracts relating to functions derived 
from the Atomic Energy Commission.
    (c) The advance notice shall contain, at a minimum, a description of 
work, estimated cost, type of contract or reimbursement provisions, and 
extent of competition, or justification for a noncompetitive purchase 
procurement. The contracting officer may at any time request additional 
information that must be furnished promptly and prior to award of the 
subcontract.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.4402  Contractor purchasing system.



Sec. 970.4402-1  Policy.

    (a) DOE contracts for the management and operation of its 
facilities, the design and production of nuclear weapons, energy 
research and development, and the performance of other services. These 
management and operating (M&O) contractors have been selected for their 
technical and managerial expertise and are expected to bring to bear 
these technical and managerial skills to accomplish the significant 
Federal mission(s) described in their contracts with, and work plans 
approved by, DOE.
    (b) Purchasing done by management and operating contractors is one 
area in which the particular skills of the contractors will be brought 
to bear in order to more readily accomplish the contractors' assigned 
missions. The contracting procedures of the contractor's organization, 
therefore, form the basis for the development of a purchasing system and 
methods that will comply with its contract with DOE and this subpart.



Sec. 970.4402-2  General requirements.

    The following shall apply to the purchasing systems of management 
and operating contractors:
    (a) The objective of a management and operating contractor's 
purchasing system is to deliver to its customers on a timely basis those 
best value products and services necessary to accomplish the purposes of 
the Government's contract. To achieve this objective, contractors are 
expected to use their experience, expertise and initiative consistent 
with this subpart.
    (b) The purchasing systems and methods used by management and 
operating contractors shall be well-defined, consistently applied, and 
shall follow purchasing practices appropriate for the requirement and 
dollar value of the purchase. It is anticipated that purchasing 
practices and procedures will vary among contractors and according to 
the type and kinds of purchases to be made.
    (c) Contractor purchases are not Federal procurements, and are not 
directly subject to the Federal Acquisition Regulations in 48 CFR. 
Nonetheless, certain Federal laws, Executive Orders, and regulations may 
affect contractor purchasing, as required by statute, regulation, or 
contract terms and conditions.
    (d) Contractor purchasing systems shall identify and apply the best 
in commercial purchasing practices and procedures (although nothing 
precludes the adoption of Federal procurement practices and procedures) 
to achieve system objectives. Where specific requirements do not 
otherwise apply, the contractor purchasing system shall provide for 
appropriate measures to ensure the--
    (1) Acquisition of quality products and services at fair and 
reasonable prices;
    (2) Use of capable and reliable subcontractors who either--
    (i) Have track records of successful past performance, or
    (ii) Can demonstrate a current superior ability to perform;
    (3) Minimization of acquisition lead-time and administrative costs 
of purchasing;
    (4) Use of effective competitive techniques;
    (5) Reduction of performance risks associated with subcontractors, 
and facilitation of quality relationships which can include techniques 
such as partnering agreements, ombudsmen, and alternative disputes 
procedures;
    (6) Use of self-assessment and benchmarking techniques to support

[[Page 507]]

continuous improvement in purchasing;
    (7) Maintenance of the highest professional and ethical standards;
    (8) Maintenance of file documentation appropriate to the value of 
the purchase and which is adequate to establish the propriety of the 
transaction and the price paid; and
    (9) Maximization of opportunities for small business, HUBZone small 
business, small disadvantaged business, and woman-owned small business 
concerns to participate in contract performance.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.4402-3  Purchasing from contractor-affiliated sources.

    (a) A management and operating contractor may purchase from sources 
affiliated with the contractor (any division, subsidiary, or affiliate 
of the contractor or its parent company) in the same manner as from 
other sources, provided--
    (1) The management and operating contractor's purchasing function is 
independent of the proposed contractor-affiliated source;
    (2) The same terms and conditions would apply if the purchase were 
from a third party;
    (3) Award is made in accordance with policies and procedures 
designed to permit effective competition which have been approved by the 
contracting officer. (This requirement for competition shall not 
preclude acquisition of technical services from contractor-affiliated 
entities where those entities have a special expertise, and the basis 
therefore is documented.); and
    (4) The award is legally enforceable where the entities are 
separately incorporated.
    (b) Subcontracts for performance of contract work itself (as 
distinguished from the purchase of supplies and services needed in 
connection with the performance of work) require DOE authorization and 
may involve an adjustment of the contractor's fee, if any. If the 
management and operating contractor seeks authorization to have some 
part of the contract work performed by a contractor-affiliated source, 
and that contractor's performance of that work was a factor in the 
negotiated fee, DOE approval would normally require--
    (1) That the contractor-affiliated source perform such work without 
fee or profit; or
    (2) An equitable downward adjustment to the management and operating 
contractor's fee, if any.
    (c) Determination on cost of money allowance as prescribed at 48 CFR 
31.225-10 shall be treated as follows:
    (1) When a purchase from a contractor-affiliated source results from 
competition and is in accord with provisions and conditions of 
paragraphs (a)(1) through (a)(4) of this subsection, the contractor-
affiliated source may include cost of money as an allowable element of 
the costs of its goods or services supplied to the contractor; 
provided--
    (i) The purchase is based on cost as set forth in 48 CFR 31.205-
26(e); and
    (ii) The cost of money amount is computed in accordance with 48 CFR 
31.205-10 and related procedures (see 970.30).
    (2) When a purchase from a contractor-affiliated source is made non-
competitively, cost of money shall not be considered an allowable 
element of the cost of the contractor-affiliated source purchase.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.4402-4  Nuclear material transfers.

    (a) Management and operating contractors, in preparing subcontracts 
or other agreements in which monetary payments or credits depend on the 
quantity and quality of nuclear material, shall be required to assure 
that each such subcontract or agreement contains a--
    (1) Description of the material to be transferred;
    (2) Provision specifying the method by which the quantities are to 
be measured and reported;
    (3) Provision specifying the procedures to be used in resolving any 
differences arising as a result of such measurements;
    (4) Provision for the use of an independent third party as an umpire 
to settle unresolved differences in the analytical samples; and

[[Page 508]]

    (5) Provision specifying in detail which party shall bear the costs 
of resolving a difference and what constitutes such costs.
    (b) The provisions providing for resolution of measurement 
differences must be such that resolution is always accomplished, while 
at the same time minimizing any advantage one party may have over the 
other.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.4403  Contract clause.

    The contracting officer shall insert the clause at 970.5244-1, 
Contractor Purchasing System, in all management and operating contracts.

                   Subpart 970.45_Government Property



Sec. 970.4501  General.



Sec. 970.4501-1  Contract clause.

    (a) The contracting officer shall insert the clause at 970.5245-1, 
Property, in management and operating contracts. Paragraph (f)(1)(i)(c) 
of the clause applies to a non-profit contractor only to the extent 
specifically provided in the individual contract. Specific managerial 
personnel may be listed in paragraph (j), provided their listing is 
consistent with the clause and the DEAR.
    (b) The contracting officer shall insert the basic clause with its 
Alternate I in contracts with nonprofit contractors.

                 Subpart 970.49_Termination of Contracts



Sec. 970.4905  Contract termination clause.



Sec. 970.4905-1  Termination for convenience of the government and 
          default.

    (a) The contracting officer shall include the clause at 48 CFR 
52.249-6, Termination (Cost Reimbursement), as modified pursuant to 
paragraph (b) of this subsection, in all cost-reimbursement management 
and operating contracts, regardless of whether the contract is for 
production, or research and development with an educational or nonprofit 
institution.
    (b) The contracting officer shall modify paragraph (i) of the clause 
to insert ``as supplemented in subpart 970.31 of the Department of 
Energy Acquisition Regulation,'' after the phrase, ``part 31 of the 
Federal Acquisition Regulation.''

   Subpart 970.50_Extraordinary Contractual Actions and the Safety Act



Sec. 970.5001  Residual powers.



Sec. 970.5001-4  Contract clause.

    When use of the clause at 48 CFR 52.250-1, Indemnification Under 
Public Law 85-804, Alternate 1 is appropriate, the contracting officer 
may substitute the words ``Obligation of funds'' for the words 
``Limitation of Cost or Limitation of Funds.''

[65 FR 81009, Dec. 22, 2000. Redesignated and amended at 74 FR 36374, 
July 22, 2009]



Sec. 970.5070  Indemnification.



Sec. 970.5070-1  Scope and applicability.

    (a) Section 170d. of the Atomic Energy Act of 1954, as amended, 
requires Department of Energy (DOE) to enter into agreements of 
indemnity with contractors whose work involves the risk of public 
liability for the occurrence of a nuclear incident or precautionary 
evacuation.
    (b) Details of such indemnification are discussed at subpart 950.70.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.5070-2  General.

    DOE contractors with whom statutory nuclear hazards indemnity 
agreements under the authority of section 170d. of the Atomic Energy Act 
of 1954, as amended, are executed will not normally be required or 
permitted to furnish financial protection by purchase of insurance to 
cover public liability for nuclear incidents. However, if authorized by 
the DOE Headquarters office having responsibility for contractor 
casualty insurance programs, DOE contractors may be--
    (a) Permitted to furnish financial protection to themselves; or

[[Page 509]]

    (b) Permitted to continue to carry such insurance at cost to the 
Government if they currently maintain insurance for such liability.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.5070-3  Contract clauses.

    (a) The clause at 952.250-70, Nuclear Hazards Indemnity Agreement, 
shall be included in all management and operating contracts involving 
the risk of public liability for the occurrence of a nuclear incident or 
precautionary evacuation arising out of or in connection with the 
contract work, including such events caused by a product delivered to a 
DOE-owned, facility for use by DOE or its contractors. The clause at 
952.250-70 also shall be included in any management and operating 
contract for the design of a DOE facility, the construction or operation 
of which may involve the risk of public liability for a nuclear incident 
or a precautionary evacuation.
    (b) The clause at 952.250-70 shall not be included in contracts in 
which the contractor is subject to Nuclear Regulatory Commission (NRC) 
financial protection requirements under section 170b. of the Act or NRC 
agreements of indemnification under section 170 c. or k. of the Act for 
activities to be performed under the contract.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]

    Subpart 970.52_Solicitation Provisions and Contract Clauses for 
                   Management and Operating Contracts



Sec. 970.5200  Scope of subpart.

    This subpart prescribes some of the solicitation provisions and 
contract clauses for use in management and operating contracts. The 
provisions and clauses contained in this subpart supplement the 
provisions and clauses prescribed in the FAR and in other parts of the 
DEAR (48 CFR 901 through 48 CFR 952), and, pursuant to the individual 
provision or clause prescription, are to be used in addition to or in 
place of such clauses. Management and operating contracts are hybrid 
contracts, in some cases including aspects of several FAR contract 
types, for example, supplies and construction. For some FAR solicitation 
provisions and contract clauses, this subpart prescribes their use 
despite the hybrid nature of the work required. To assist Departmental 
contracting personnel in determining the applicability of FAR and DEAR 
clauses to management and operating contracts, additional guidance is 
published and made available by the Office of Procurement and Assistance 
Policy, within the Headquarters procurement organization.



Sec. 970.5201  Text of provisions and clauses.



Sec. 970.5203-1  Management controls.

    As prescribed in 970.0370-2(a) and 970.3270(a)(4), insert the 
following clause:

                     Management Controls (JUN 2007)

    (a)(1) The Contractor shall be responsible for maintaining, as an 
integral part of its organization, effective systems of management 
controls for both administrative and programmatic functions. Management 
controls comprise the plan of organization, methods, and procedures 
adopted by management to reasonably ensure that: the mission and 
functions assigned to the Contractor are properly executed; efficient 
and effective operations are promoted including consideration of 
outsourcing of functions; resources are safeguarded against waste, loss, 
mismanagement, unauthorized use, or misappropriation; all encumbrances 
and costs that are incurred under the contract and fees that are earned 
are in compliance with applicable clauses and other current terms, 
conditions, and intended purposes; all collections accruing to the 
Contractor in connection with the work under this contract, 
expenditures, and all other transactions and assets are properly 
recorded, managed, and reported; and financial, statistical, and other 
reports necessary to maintain accountability and managerial control are 
accurate, reliable, and timely.
    (2) The systems of controls employed by the Contractor shall be 
documented and satisfactory to DOE.
    (3) Such systems shall be an integral part of the Contractor's 
management functions, including defining specific roles and 
responsibilities for each level of management, and holding employees 
accountable for the adequacy of the management systems and controls in 
their areas of assigned responsibility.
    (4) The Contractor shall, as part of the internal audit program 
required elsewhere in

[[Page 510]]

this contract, periodically review the management systems and controls 
employed in programs and administrative areas to ensure that they are 
adequate to provide reasonable assurance that the objectives of the 
systems are being accomplished and that these systems and controls are 
working effectively. Annually, or at other intervals directed by the 
Contracting Officer, the Contractor shall supply to the Contracting 
Officer copies of the reports reflecting the status of recommendations 
resulting from management audits performed by its internal audit 
activity and any other audit organization. This requirement may be 
satisfied in part by the reports required under paragraph (i) of 48 CFR 
970.5232-3, Accounts, records, and inspection.
    (b) The Contractor shall be responsible for maintaining, as a part 
of its operational responsibilities, a baseline quality assurance 
program that implements documented performance, quality standards, and 
control and assessment techniques.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 71 FR 16243, Mar. 31, 2006; 
72 FR 29081, May 24, 2007; 72 FR 39761, July 20, 2007; 74 FR 36374, 
36378, 36380, July 22, 2009]



Sec. 970.5203-2  Performance improvement and collaboration.

    As prescribed in 970.0370-2(b), insert the following clause:

          Performance Improvement and Collaboration (MAY 2006)

    (a) The Contractor agrees that it shall affirmatively identify, 
evaluate, and institute practices, where appropriate, that will improve 
performance in the areas of environmental and health, safety, scientific 
and technical, security, business and administrative, and any other 
areas of performance in the management and operation of the contract. 
This may entail the alteration of existing practices or the institution 
of new procedures to more effectively or efficiently perform any aspect 
of contract performance or reduce overall cost of operation under the 
contract. Such improvements may result from changes in organization, 
outsourcing decisions, simplification of systems while retaining 
necessary controls, or any other approaches consistent with the 
statement of work and performance measures of this contract.
    (b) The Contractor agrees to work collaboratively with the 
Department, all other management and operating, DOE major facilities 
management contractors and affiliated contractors which manage or 
operate DOE sites or facilities for the following purposes: (i) to 
exchange information generally, (ii) to evaluate concepts that may be of 
benefit in resolving common issues, in confronting common problems, or 
in reducing costs of operations, and (iii) to otherwise identify and 
implement DOE-complex-wide management improvements discussed in 
paragraph (a). In doing so, it shall also affirmatively provide 
information relating to its management improvements to such contractors, 
including lessons learned, subject to security considerations and the 
protection of data proprietary to third parties.
    (c) The Contractor may consult with the Contracting Officer in those 
instances in which improvements being considered pursuant to paragraph 
(a) involve the cooperation of the DOE. The Contractor may request the 
assistance of the Contracting Officer in the communication of the 
success of improvements to other management and operating contractors in 
accordance with paragraph (b) of this clause.
    (d) The Contractor shall notify the Contracting Officer and seek 
approval where necessary to fulfill its obligations under the contract. 
Compliance with this clause in no way alters the obligations of the 
Contractor under any other provision of this contract.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 71 FR 16243, Mar. 31, 2006; 
74 FR 36374, 36378, 36380, July 22, 2009]



Sec. 970.5203-3  Contractor's organization.

    As prescribed in 970.0371-9, insert the following clause:

                  Contractor's Organization (DEC 2000)

    (a) Organization chart. As promptly as possible after the execution 
of this contract, the Contractor shall furnish to the Contracting 
Officer a chart showing the names, duties, and organization of key 
personnel (see 48 CFR 952.215-70) to be employed in connection with the 
work, and shall furnish supplemental information to reflect any changes 
as they occur.
    (b) Supervisory representative of Contractor. Unless otherwise 
directed by the Contracting Officer, a competent full-time resident 
supervisory representative of the Contractor satisfactory to the 
Contracting Officer shall be in charge of the work at the site, and any 
work off-site, at all times.
    (c) Control of employees. The Contractor shall be responsible for 
maintaining satisfactory standards of employee competency, conduct, and 
integrity and shall be responsible for taking such disciplinary action 
with respect to its employees as may be necessary. In the event the 
Contractor fails to remove any employee from the contract work whom DOE 
deems incompetent, careless, or insubordinate, or whose continued 
employment on

[[Page 511]]

the work is deemed by DOE to be inimical to the Department's mission, 
the Contracting Officer may require, with the approval of the Secretary 
of Energy, the Contractor to remove the employee from work under the 
contract. This includes the right to direct the Contractor to remove its 
most senior key person from work under the contract for serious contract 
performance deficiencies.
    (d) Standards and procedures. The Contractor shall establish such 
standards and procedures as are necessary to implement the requirements 
set forth in 48 CFR 970.0371. Such standards and procedures shall be 
subject to the approval of the Contracting Officer.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, 36378, 36380, 
July 22, 2009]



Sec. 970.5204-1  Counterintelligence.

    (a) As prescribed in 970.0404-4(a), insert the following clause in 
contracts containing the clauses at 952.204-2, Security, and 952.204-70, 
Classification/Declassification:

                     Counterintelligence (DEC 2010)

    (a) The Contractor shall take all reasonable precautions in the work 
under this contract to protect DOE programs, facilities, technology, 
personnel, unclassified sensitive information and classified matter from 
foreign intelligence threats and activities conducted for governmental 
or industrial purposes, in accordance with DOE Order 475.1, 
Counterintelligence Program, or its successor; Executive Order 12333, 
U.S. Intelligence Activities; and other pertinent national and 
Departmental Counterintelligence requirements.
    (b) The Contractor shall appoint a qualified employee(s) to function 
as the Contractor Counterintelligence Officer. The Contractor 
Counterintelligence Officer will be responsible for conducting defensive 
Counterintelligence briefings and debriefings of employees traveling to 
foreign countries or interacting with foreign nationals; providing 
thoroughly documented written reports relative to targeting, suspicious 
activity and other matters of Counterintelligence interest; immediately 
reporting targeting, suspicious activity and other Counterintelligence 
concerns to the DOE Headquarters Counterintelligence Division; and 
providing assistance to other elements of the U.S. Intelligence 
Community as stated in the aforementioned Executive Order, the DOE 
Counterintelligence Order, and other pertinent national and Departmental 
Counterintelligence requirements.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, 36378, July 22, 
2009; 75 FR 68220, Nov. 5, 2010]



Sec. 970.5204-2  Laws, regulations, and DOE directives.

    As prescribed in 970.0470-2, insert the following clause:

            Laws, Regulations, and DOE Directives (DEC 2000)

    (a) In performing work under this contract, the Contractor shall 
comply with the requirements of applicable Federal, State, and local 
laws and regulations (including DOE regulations), unless relief has been 
granted in writing by the appropriate regulatory agency. A List of 
Applicable Laws and regulations (List A) may be appended to this 
contract for information purposes. Omission of any applicable law or 
regulation from List A does not affect the obligation of the Contractor 
to comply with such law or regulation pursuant to this paragraph.
    (b) In performing work under this contract, the Contractor shall 
comply with the requirements of those Department of Energy directives, 
or parts thereof, identified in the List of Applicable Directives (List 
B) appended to this contract. Except as otherwise provided for in 
paragraph (d) of this clause, the Contracting Officer may, from time to 
time and at any time, revise List B by unilateral modification to the 
contract to add, modify, or delete specific requirements. Prior to 
revising List B, the Contracting Officer shall notify the Contractor in 
writing of the Department's intent to revise List B and provide the 
Contractor with the opportunity to assess the effect of the Contractor's 
compliance with the revised list on contract cost and funding, technical 
performance, and schedule; and identify any potential inconsistencies 
between the revised list and the other terms and conditions of the 
contract. Within 30 days after receipt of the Contracting Officer's 
notice, the Contractor shall advise the Contracting Officer in writing 
of the potential impact of the Contractor's compliance with the revised 
list. Based on the information provided by the Contractor and any other 
information available, the Contracting Officer shall decide whether to 
revise List B and so advise the Contractor not later than 30 days prior 
to the effective date of the revision of List B. The Contractor and the 
Contracting Officer shall identify and, if appropriate, agree to any 
changes to other contract terms and conditions, including cost and 
schedule, associated with the revision of List B pursuant to the clause 
of this contract entitled, ``Changes.''

[[Page 512]]

    (c) Environmental, safety, and health (ES&H) requirements 
appropriate for work conducted under this 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 the clause entitled ``Integration of 
Environment, Safety, and Health into Work Planning and Execution.'' When 
such a process is used, the set of tailored (ES&H) requirements, as 
approved by DOE pursuant to the process, shall be incorporated into List 
B as contract requirements with full force and effect. 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 varying from an ES&H 
requirement of an applicable law or regulation, the Contractor shall 
request an exemption or other appropriate regulatory relief specified in 
the regulation.
    (d) Except as otherwise directed by the Contracting Officer, the 
Contractor shall procure all necessary permits or licenses required for 
the performance of work under this contract.
    (e) Regardless of the performer of the work, the Contractor is 
responsible for compliance with the requirements of this clause. The 
Contractor is responsible for flowing down the requirements of this 
clause to subcontracts at any tier to the extent necessary to ensure the 
Contractor's compliance with the requirements.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, 36378, 36380, 
July 22, 2009]



Sec. 970.5204-3  Access to and ownership of records.

    As prescribed in 970.0407-1-3, insert the following clause:

              Access to and Ownership of Records (DEC 2000)

    (a) Government-owned records. Except as provided in paragraph (b) of 
this clause, all records acquired or generated by the Contractor in its 
performance of this contract shall be the property of the Government and 
shall be delivered to the Government or otherwise disposed of by the 
Contractor either as the Contracting Officer may from time to time 
direct during the progress of the work or, in any event, as the 
Contracting Officer shall direct upon completion or termination of the 
contract.
    (b) Contractor-owned records. The following records are considered 
the property of the Contractor and are not within the scope of paragraph 
(a) of this clause. [The Contracting Officer shall identify which of the 
following categories of records will be included in the clause.]
    (1) Employment-related records (such as worker's compensation files; 
employee relations records, records on salary and employee benefits; 
drug testing records, labor negotiation records; records on ethics, 
employee concerns; records generated during the course of responding to 
allegations of research misconduct; records generated during other 
employee related investigations conducted under an expectation of 
confidentiality; employee assistance program records; and personnel and 
medical/health-related records and similar files), and non-employee 
patient medical/health-related records, except for those records 
described by the contract as being maintained in Privacy Act systems of 
records.
    (2) Confidential contractor financial information, and 
correspondence between the Contractor and other segments of the 
Contractor located away from the DOE facility (i.e., the Contractor's 
corporate headquarters);
    (3) Records relating to any procurement action by the Contractor, 
except for records that under 48 CFR 970.5232-3, Accounts, Records, and 
Inspection, are described as the property of the Government; and
    (4) Legal records, including legal opinions, litigation files, and 
documents covered by the attorney-client and attorney work product 
privileges; and
    (5) The following categories of records maintained pursuant to the 
technology transfer clause of this contract:
    (i) Executed license agreements, including exhibits or appendices 
containing information on royalties, royalty rates, other financial 
information, or commercialization plans, and all related documents, 
notes and correspondence.
    (ii) The Contractor's protected Cooperative Research and Development 
Agreement (CRADA) information and appendices to a CRADA that contain 
licensing terms and conditions, or royalty or royalty rate information.
    (iii) Patent, copyright, mask work, and trademark application files 
and related contractor invention disclosures, documents and 
correspondence, where the Contractor has elected rights or has 
permission to assert rights and has not relinquished such rights or 
turned such rights over to the Government.
    (c) Contract completion or termination. In the event of completion 
or termination of this contract, copies of any of the Contractor-owned 
records identified in paragraph (b) of this clause, upon the request of 
the Government, shall be delivered to DOE or its designees, including 
successor contractors.

[[Page 513]]

Upon delivery, title to such records shall vest in DOE or its designees, 
and such records shall be protected in accordance with applicable 
federal laws (including the Privacy Act), as appropriate.
    (d) Inspection, copying, and audit of records. All records acquired 
or generated by the Contractor under this contract in the possession of 
the Contractor, including those described at paragraph (b) of this 
clause, shall be subject to inspection, copying, and audit by the 
Government or its designees at all reasonable times, and the Contractor 
shall afford the Government or its designees reasonable facilities for 
such inspection, copying, and audit; provided, however, that upon 
request by the Contracting Officer, the Contractor shall deliver such 
records to a location specified by the Contracting Officer for 
inspection, copying, and audit. The Government or its designees shall 
use such records in accordance with applicable federal laws (including 
the Privacy Act), as appropriate.
    (e) Applicability. Paragraphs (b), (c), and (d) of this clause apply 
to all records without regard to the date or origination of such 
records.
    (f) Records retention standards. Special records retention 
standards, described at DOE Order 200.1, Information Management Program 
(version in effect on effective date of contract), are applicable for 
the classes of records described therein, whether or not the records are 
owned by the Government or the Contractor. In addition, the Contractor 
shall retain individual radiation exposure records generated in the 
performance of work under this contract until DOE authorizes disposal. 
The Government may waive application of these record retention 
schedules, if, upon termination or completion of the contract, the 
Government exercises its right under paragraph (c) of this clause to 
obtain copies and delivery of records described in paragraphs (a) and 
(b) of this clause.
    (g) Subcontracts. The Contractor shall include the requirements of 
this clause in all subcontracts that are of a cost-reimbursement type if 
any of the following factors is present:
    (1) The value of the subcontract is greater than $2 million (unless 
specifically waived by the Contracting Officer);
    (2) The Contracting Officer determines that the subcontract is, or 
involves, a critical task related to the contract; or
    (3) The subcontract includes 48 CFR 970.5223-1, Integration of 
Environment, Safety, and Health into Work Planning and Execution, or 
similar clause.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 70 FR 37016, June 28, 2005; 
74 FR 36374, 36378, 36380, July 22, 2009]



Sec. 970.5208-1  Printing.

    As prescribed in 970.0808-3, insert the following clause:

                           Printing (DEC 2000)

    (a) To the extent that duplicating or printing services may be 
required in the performance of this contract, the Contractor shall 
provide or secure such services in accordance with the Government 
Printing and Binding Regulations, Title 44 of the U.S. Code, and DOE 
Directives relative thereto.
    (b) The term ``Printing'' includes the following processes: 
Composition, platemaking, presswork, binding, microform publishing, or 
the end items produced by such processes. Provided, however, that 
performance of a requirement under this contract involving the 
duplication of less than 5,000 copies of a single page, or no more than 
25,000 units in the aggregate of multiple pages, will not be deemed to 
be printing.
    (c) Printing services not obtained in compliance with this guidance 
shall result in the cost of such printing being disallowed.
    (d) The Contractor shall include the substance of this clause in all 
subcontracts hereunder which require printing (as that term is defined 
in Title I of the U.S. Government Printing and Binding Regulations).

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]



Sec. 970.5209-1  Requirement for guarantee of performance.

    As prescribed in 970.0970-2, the contracting officer shall insert 
the following provision in solicitations for management and operating 
contracts:

           Requirement for Guarantee of Performance (DEC 2000)

    The successful offeror is required by other provisions of this 
solicitation to organize a dedicated corporate entity to carry out the 
work under the contract to be awarded as a result of this solicitation. 
The successful offeror will be required, as part of the determination of 
responsibility of the newly organized, dedicated corporate entity and as 
a condition of the award of the contract to that entity, to furnish a 
guarantee of that entity's performance. That guarantee of performance 
must be satisfactory in all respects to the Department of Energy.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36374, July 22, 2009]

[[Page 514]]



Sec. 970.5211-1  Work authorization.

    As prescribed in 970.1170-2, insert the following clause:

                      Work Authorization (MAY 2007)

    (a) Work authorization proposal. Prior to the start of each fiscal 
year, the Contracting Officer or designee shall provide the Contractor 
with program execution guidance in sufficient detail to enable the 
Contractor to develop an estimated cost, scope, and schedule. In 
addition, the Contracting Officer may unilaterally assign work. The 
Contractor shall submit to the Contracting Officer or other designated 
official, a detailed description of work, a budget of estimated costs, 
and a schedule of performance for the work it recommends be undertaken 
during that upcoming fiscal year.
    (b) Cost estimates. The Contractor and the Contracting Officer shall 
establish a budget of estimated costs, description of work, and schedule 
of performance for each work assignment. If agreement cannot be reached 
as to scope, schedule, and estimated cost, the Contracting Officer may 
issue a unilateral work authorization, pursuant to this clause. The work 
authorization, whether issued bilaterally or unilaterally shall become 
part of the contract. No activities shall be authorized or costs 
incurred prior to Contracting Officer issuance of a work authorization 
or direction concerning continuation of activities of the contract.
    (c) Performance. The Contractor shall perform work as specified in 
the work authorization, consistent with the terms and conditions of this 
contract.
    (d) Modification. The Contracting Officer may at any time, without 
notice, issue changes to work authorizations within the overall scope of 
the contract. A proposal for adjustment in estimated costs and schedule 
for performance of work, recognizing work made unnecessary as a result, 
along with new work, shall be submitted by the Contractor in accordance 
with paragraph (a) of this clause. Resolution shall be in accordance 
with paragraph (b) of this clause.
    (e) Increase in estimated cost. The Contractor shall notify the 
Contracting Officer immediately whenever the cost incurred, plus the 
projected cost to complete work is projected to differ (plus or minus) 
from the estimate by 10 percent. The Contractor shall submit a proposal 
for modification in accordance with paragraph (a) of this clause. 
Resolution shall be in accordance with paragraph (b) of this clause.
    (f) Expenditure of funds and incurrence of costs. The expenditure of 
monies by the Contractor in the performance of all authorized work shall 
be governed by the ``Obligation of Funds'' or equivalent clause of the 
contract.
    (g) Responsibility to achieve environment, safety, health, and 
security compliance. Notwithstanding other provisions of the contract, 
the Contractor may, in the event of an emergency, take that corrective 
action necessary to sustain operations consistent with applicable 
environmental, safety, health, and security statutes, regulations, and 
procedures. If such action is taken, the Contractor shall notify the 
Contracting Officer within 24 hours of initiation and, within 30 days, 
submit a proposal for adjustment in estimated costs and schedule 
established in accordance with paragraphs (a) and (b) of this clause.

                             (End of clause)

[72 FR 29434, May 29, 2007, as amended at 74 FR 36378, July 22, 2009]



Sec. 970.5215-1  Total available fee: Base fee amount and performance 
          fee amount.

    As prescribed in 970.1504-5(a), insert the following clause. The 
clause should be tailored to reflect the contract's actual inclusion of 
base fee amount and performance fee amount.

  Total Available Fee: Base Fee Amount and Performance Fee Amount (DEC 
                                  2000)

    (a) Total available fee. Total available fee, consisting of a base 
fee amount (which may be zero) and a performance fee amount (consisting 
of an incentive fee component for objective performance requirements, an 
award fee component for subjective performance requirements, or both) 
determined in accordance with the provisions of this clause, is 
available for payment in accordance with the clause of this contract 
entitled, ``Payments and advances.''
    (b) Fee negotiations. Prior to the beginning of each fiscal year 
under this contract, or other appropriate period as mutually agreed upon 
and, if exceeding one year, approved by the Senior Procurement 
Executive, or designee, the Contracting Officer and Contractor shall 
enter into negotiation of the requirements for the year or appropriate 
period, including the evaluation areas and individual requirements 
subject to incentives, the total available fee, and the allocation of 
fee. The Contracting Officer shall modify this contract at the 
conclusion of each negotiation to reflect the negotiated requirements, 
evaluation areas and individual requirements subject to incentives, the 
total available fee, and the allocation of fee. In the event the parties 
fail to agree on the requirements, the evaluation areas and individual 
requirements subject to incentives, the total available fee, or the 
allocation of fee, a unilateral determination will be made by the 
Contracting Officer. The total available fee amount shall be allocated 
to a

[[Page 515]]

twelve month cycle composed of one or more evaluation periods, or such 
longer period as may be mutually agreed to between the parties and 
approved by the Senior Procurement Executive, or designee.
    (c) Determination of total available fee amount earned. (1) The 
Government shall, at the conclusion of each specified evaluation period, 
evaluate the Contractor's performance of all requirements, including 
performance based incentives completed during the period, and determine 
the total available fee amount earned. At the Contracting Officer's 
discretion, evaluation of incentivized performance may occur at the 
scheduled completion of specific incentivized requirements.
    (2) The DOE Operations/Field Office Manager, or designee, will be 
(insert title of DOE Operations/Field Office Manager, or designee). The 
Contractor agrees that the determination as to the total available fee 
earned is a unilateral determination made by the DOE Operations/Field 
Office Manager, or designee.
    (3) The evaluation of Contractor performance shall be in accordance 
with the Performance Evaluation and Measurement Plan(s) described in 
subparagraph (d) of this clause unless otherwise set forth in the 
contract. The Contractor shall be promptly advised in writing of the fee 
determination, and the basis of the fee determination. In the event that 
the Contractor's performance is considered to be less than the level of 
performance set forth in the Statement of Work, as amended to include 
the current Work Authorization Directive or similar document, for any 
contract requirement, it will be considered by the DOE Operations/Field 
Office Manager, or designee, who may at his/her discretion adjust the 
fee determination to reflect such performance. Any such adjustment shall 
be in accordance with the clause entitled, ``Conditional Payment of Fee, 
Profit, and Other Incentives--Facility Management Contracts'' if 
contained in the contract.
    (d) Performance evaluation and measurement plan(s). To the extent 
not set forth elsewhere in the contract:
    (1) The Government shall establish a Performance Evaluation and 
Measurement Plan(s) upon which the determination of the total available 
fee amount earned shall be based. The Performance Evaluation and 
Measurement Plan(s) will address all of the requirements of contract 
performance specified in the contract directly or by reference. A copy 
of the Performance Evaluation and Measurement Plan(s) shall be provided 
to the Contractor--
    (i) Prior to the start of an evaluation period if the requirements, 
evaluation areas, specific incentives, amount of fee, and allocation of 
fee to such evaluation areas and specific incentives have been mutually 
agreed to by the parties; or
    (ii) Not later than thirty days prior to the scheduled start date of 
the evaluation period, if the requirements, evaluation areas, specific 
incentives, amount of fee, and allocation of fee to such evaluation 
areas and specific incentives have been unilaterally established by the 
Contracting Officer.
    (2) The Performance Evaluation and Measurement Plan(s) will set 
forth the criteria upon which the Contractor will be evaluated relating 
to any technical, schedule, management, and/or cost objectives selected 
for evaluation. Such criteria should be objective, but may also include 
subjective criteria. The Plan(s) shall also set forth the method by 
which the total available fee amount will be allocated and the amount 
earned determined.
    (3) The Performance Evaluation and Measurement Plan(s) may, 
consistent with the contract statement of work, be revised during the 
period of performance. The Contracting Officer shall notify the 
contractor--
    (i) Of such unilateral changes at least ninety calendar days prior 
to the end of the affected evaluation period and at least thirty 
calendar days prior to the effective date of the change;
    (ii) Of such bilateral changes at least sixty calendar days prior to 
the end of the affected evaluation period; or
    (iii) If such change, whether unilateral or bilateral, is urgent and 
high priority, at least thirty calendar days prior to the end of the 
evaluation period.
    (e) Schedule for total available fee amount earned determinations. 
The DOE Operations/Field Office Manager, or designee, shall issue the 
final total available fee amount earned determination in accordance 
with: the schedule set forth in the Performance Evaluation and 
Measurement Plan(s); or as otherwise set forth in this contract . 
However, a determination must be made within sixty calendar days after 
the receipt by the Contracting Officer of the Contractor's self-
assessment, if one is required or permitted by paragraph (f) of this 
clause, or seventy calendar days after the end of the evaluation period, 
whichever is later, or a longer period if the Contractor and Contracting 
Officer agree. If the Contracting Officer evaluates the Contractor's 
performance of specific requirements on their completion, the payment of 
any earned fee amount must be made within seventy calendar days (or such 
other time period as mutually agreed to between the Contracting Officer 
and the Contractor) after such completion. If the determination is 
delayed beyond that date, the Contractor shall be entitled to interest 
on the determined total available fee amount earned at the rate 
established by the Secretary of the Treasury under section 12 of the 
Contract Disputes Act of 1978 (41 U.S.C. 611) that is in effect on the 
payment date.

[[Page 516]]

This rate is referred to as the ``Renegotiation Board Interest Rate,'' 
and is published in the Federal Register semiannually on or about 
January 1 and July 1. The interest on any late total available fee 
amount earned determination will accrue daily and be compounded in 30-
day increments inclusive from the first day after the schedule 
determination date through the actual date the determination is issued. 
That is, interest accrued at the end of any 30-day period will be added 
to the determined amount of fee earned and be subject to interest if not 
paid in the succeeding 30-day period.

                             (End of clause)

    Alternate I (DEC 2000). As prescribed in 970.1504-5(a)(1), when the 
award fee cycle consists of two or more evaluation periods, add the 
following to paragraph (c):

    (4) At the sole discretion of the Government, unearned total 
available fee amounts may be carried over from one evaluation period to 
the next, so long as the periods are within the same award fee cycle.

    Alternate II (DEC 2000). As prescribed in 970.1504-5(a)(2), when the 
award fee cycle consists of one evaluation period, add the following to 
paragraph (c):
    (4) Award fee not earned during the evaluation period shall not be 
allocated to future evaluation periods.
    Alternate III (DEC 2000). As prescribed in 970.1504-5(a)(3), when 
the DOE Operations/Field Office Manager, or designee, requires the 
contractor to submit a self-assessment, add the following as paragraph 
(f):

    (f) Contractor self-assessment. Following each evaluation period, 
the Contractor shall submit a self-assessment within (Insert Number) 
calendar days after the end of the period. This self-assessment shall 
address both the strengths and weaknesses of the Contractor's 
performance during the evaluation period. Where deficiencies in 
performance are noted, the Contractor shall describe the actions planned 
or taken to correct such deficiencies and avoid their recurrence. The 
DOE Operations/Field Office Manager, or designee, will review the 
Contractor's self-assessment, if submitted, as part of its independent 
evaluation of the Contractor's management during the period. A self-
assessment, in and of itself may not be the only basis for the award fee 
determination.

    Alternate IV (DEC 2000). As prescribed in 970.1504-5(a)(4), when the 
DOE Operations/Field Office Manager, or designee, permits the contractor 
to submit a self-assessment at the contractor's option, add the 
following text as paragraph (f):

    (f) Contractor self-assessment. Following each evaluation period, 
the Contractor may submit a self-assessment, provided such assessment is 
submitted within (Insert Number) calendar days after the end of the 
period. This self-assessment shall address both the strengths and 
weaknesses of the Contractor's performance during the evaluation period. 
Where deficiencies in performance are noted, the Contractor shall 
describe the actions planned or taken to correct such deficiencies and 
avoid their recurrence. The DOE Operations/Field Office Manager, or 
designee, will review the Contractor's self-assessment, if submitted, as 
part of its independent evaluation of the Contractor's management during 
the period. A self-assessment, in and of itself may not be the only 
basis for the award fee determination.

[65 FR 81009, Dec. 22, 2000, as amended at 68 FR 68782, Dec. 10, 2003; 
74 FR 36374, 36378, 36380, July 22, 2009]



Sec. 970.5215-2  [Reserved]



Sec. 970.5215-3  Conditional payment of fee, profit, and other 
          incentives--facility management contracts

    As prescribed in 970.1504-5(b)(1), insert the following clause:

   Conditional Payment of Fee, Profit, and Other Incentives--Facility 
                     Management Contracts (AUG 2009)

    (a) General. (1) The payment of earned fee, fixed fee, profit, or 
share of cost savings under this contract is dependent upon--
    (i) The Contractor's or Contractor employees' compliance with the 
terms and conditions of this contract relating to environment, safety 
and health (ES&H), which includes worker safety and health (WS&H), 
including performance under an approved Integrated Safety Management 
System (ISMS); and
    (ii) The Contractor's or Contractor employees' compliance with the 
terms and conditions of this contract relating to the safeguarding of 
Restricted Data and other classified information.
    (2) The ES&H performance requirements of this contract are set forth 
in its ES&H terms and conditions, including the DOE approved contractor 
ISMS or similar document. Financial incentives for timely mission 
accomplishment or cost effectiveness shall never compromise or impede 
full and effective implementation of the ISMS and full ES&H compliance.

[[Page 517]]

    (3) The performance requirements of this contract relating to the 
safeguarding of Restricted Data and other classified information are set 
forth in the clauses of this contract entitled, ``Security'' and ``Laws, 
Regulations, and DOE Directives,'' as well as in other terms and 
conditions.
    (4) If the Contractor does not meet the performance requirements of 
this contract relating to ES&H or to the safeguarding of Restricted Data 
and other classified information during any performance evaluation 
period established under the contract pursuant to the clause of this 
contract entitled, ``Total Available Fee: Base Fee Amount and 
Performance Fee Amount,'' otherwise earned fee, fixed fee, profit or 
share of cost savings may be unilaterally reduced by the contracting 
officer.
    (b) Reduction amount. (1) The amount of earned fee, fixed fee, 
profit, or share of cost savings that may be unilaterally reduced will 
be determined by the severity of the performance failure pursuant to the 
degrees specified in paragraphs (c) and (d) of this clause.
    (2) If a reduction of earned fee, fixed fee, profit, or share of 
cost savings is warranted, unless mitigating factors apply, such 
reduction shall not be less than 26 percent nor greater than 100 percent 
of the amount of earned fee, fixed fee, profit, or the Contractor's 
share of cost savings for a first degree performance failure, not less 
than 11 percent nor greater than 25 percent for a second degree 
performance failure, and up to 10 percent for a third degree performance 
failure.
    (3) In determining the amount of the reduction and the applicability 
of mitigating factors, the contracting officer must consider the 
Contractor's overall performance in meeting the ES&H or security 
requirements of the contract. Such consideration must include 
performance against any site specific performance criteria/requirements 
that provide additional definition, guidance for the amount of 
reduction, or guidance for the applicability of mitigating factors. In 
all cases, the contracting officer must consider mitigating factors that 
may warrant a reduction below the applicable range (see 48 CFR 970.1504-
1-2). The mitigating factors include, but are not limited to, the 
following ((v), (vi), (vii) and (viii) apply to ES&H only).
    (i) Degree of control the Contractor had over the event or incident.
    (ii) Efforts the Contractor had made to anticipate and mitigate the 
possibility of the event in advance.
    (iii) Contractor self-identification and response to the event to 
mitigate impacts and recurrence.
    (iv) General status (trend and absolute performance) of: ES&H and 
compliance in related areas; or of safeguarding Restricted Data and 
other classified information and compliance in related areas.
    (v) Contractor demonstration to the Contracting Officer's 
satisfaction that the principles of industrial ES&H standards are 
routinely practiced (e.g., Voluntary Protection Program, ISO 14000).
    (vi) Event caused by ``Good Samaritan'' act by the Contractor (e.g., 
offsite emergency response).
    (vii) Contractor demonstration that a performance measurement system 
is routinely used to improve and maintain ES&H performance (including 
effective resource allocation) and to support DOE corporate decision-
making (e.g., policy, ES&H programs). * * *
    (viii) Contractor demonstration that an Operating Experience and 
Feedback Program is functioning that demonstrably affects continuous 
improvement in ES&H by use of lessons-learned and best practices inter- 
and intra-DOE sites.
    (4)(i) The amount of fee, fixed fee, profit, or share of cost 
savings that is otherwise earned by a contractor during an evaluation 
period may be reduced in accordance with this clause if it is determined 
that a performance failure warranting a reduction under this clause 
occurs within the evaluation period.
    (ii) The amount of reduction under this clause, in combination with 
any reduction made under any other clause in the contract, shall not 
exceed the amount of fee, fixed fee, profit, or the Contractor's share 
of cost savings that is otherwise earned during the evaluation period.
    (iii) For the purposes of this clause, earned fee, fixed fee, 
profit, or share of cost savings for the evaluation period shall mean 
the amount determined by the Contracting Officer or fee determination 
official as otherwise payable based on the Contractor's performance 
during the evaluation period. Where the contract provides for financial 
incentives that extend beyond a single evaluation period, this amount 
shall also include: any provisional amounts determined otherwise payable 
in the evaluation period; and, if provisional payments are not provided 
for, the allocable amount of any incentive determined otherwise payable 
at the conclusion of a subsequent evaluation period. The allocable 
amount shall be the total amount of the earned incentive divided by the 
number of evaluation periods over which it was earned.
    (iv) The Government will effect the reduction as soon as practicable 
after the end of the evaluation period in which the performance failure 
occurs. If the Government is not aware of the failure, it will effect 
the reduction as soon as practical after becoming aware. For any portion 
of the reduction requiring an allocation the Government will effect the 
reduction at the end of the evaluation period in which it determines the 
total amount earned under the incentive. If at any

[[Page 518]]

time a reduction causes the sum of the payments the Contractor has 
received for fee, fixed fee, profit, or share of cost savings to exceed 
the sum of fee, fixed fee, profit, or share of cost savings the 
Contractor has earned (provisionally or otherwise), the Contractor shall 
immediately return the excess to the Government. (What the Contractor 
``has earned'' reflects any reduction made under this or any other 
clause of the contract.)
    (v) At the end of the contract--
    (A) The Government will pay the Contractor the amount by which the 
sum of fee, fixed fee, profit, or share of cost savings the Contractor 
has earned exceeds the sum of the payments the Contractor has received; 
or
    (B) The Contractor shall return to the Government the amount by 
which the sum of the payments the Contractor has received exceeds the 
sum of fee, fixed fee, profit, or share of cost savings the Contractor 
has earned. (What the Contractor ``has earned'' reflects any reduction 
made under this or any other clause of the contract.)
    (c) Environment, Safety and Health (ES&H). Performance failures 
occur if the Contractor does not comply with the contract's ES&H terms 
and conditions, including the DOE approved Contractor ISMS. The degrees 
of performance failure under which reductions of earned or fixed fee, 
profit, or share of cost savings will be determined are:
    (1) First Degree: Performance failures that are most adverse to 
ES&H. Failure to develop and obtain required DOE approval of an ISMS is 
considered first degree. The Government will perform necessary review of 
the ISMS in a timely manner and will not unreasonably withhold approval 
of the Contractor's ISMS. The following performance failures or 
performance failures of similar import will be considered first degree.
    (i) Type A accident (defined in DOE Order 225.1A).
    (ii) Two Second Degree performance failures during an evaluation 
period.
    (2) Second Degree: Performance failures that are significantly 
adverse to ES&H. They include failures to comply with an approved ISMS 
that result in an actual injury, exposure, or exceedence that occurred 
or nearly occurred but had minor practical long-term health 
consequences. They also include breakdowns of the Safety Management 
System. The following performance failures or performance failures of 
similar import will be considered second degree:
    (i) Type B accident (defined in DOE Order 225.1A).
    (ii) Non-compliance with an approved ISMS that results in a near 
miss of a Type A or B accident. A near miss is a situation in which an 
inappropriate action occurs, or a necessary action is omitted, but does 
not result in an adverse effect.
    (iii) Failure to mitigate or notify DOE of an imminent danger 
situation after discovery, where such notification is a requirement of 
the contract.
    (3) Third Degree: Performance failures that reflect a lack of focus 
on improving ES&H. They include failures to comply with an approved ISMS 
that result in potential breakdown of the System. The following 
performance failures or performance failures of similar import will be 
considered third degree:
    (i) Failure to implement effective corrective actions to address 
deficiencies/non-compliances documented through: external (e.g., 
Federal) oversight and/or reported per DOE Order 232.1-2 requirements; 
or internal oversight of DOE Order 440.1A requirements.
    (ii) Multiple similar non-compliances identified by external (e.g., 
Federal) oversight that in aggregate indicate a significant programmatic 
breakdown.
    (iii) Non-compliances that either have, or may have, significant 
negative impacts to the worker, the public, or the environment or that 
indicate a significant programmatic breakdown.
    (iv) Failure to notify DOE upon discovery of events or conditions 
where notification is required by the terms and conditions of the 
contract.
    (d) Safeguarding restricted data and other classified information. 
Performance failures occur if the Contractor does not comply with the 
terms and conditions of this contract relating to the safeguarding of 
Restricted Data and other classified information. The degrees of 
performance failure under which reductions of fee, profit, or share of 
cost savings will be determined are as follows:
    (1) First Degree: Performance failures that have been determined, in 
accordance with applicable law, DOE regulation, or directive, to have 
resulted in, or that can reasonably be expected to result in, 
exceptionally grave damage to the national security. The following are 
examples of performance failures or performance failures of similar 
import that will be considered first degree:
    (i) Non-compliance with applicable laws, regulations, and DOE 
directives actually resulting in, or creating a risk of, loss, 
compromise, or unauthorized disclosure of Top Secret Restricted Data or 
other information classified as Top Secret, any classification level of 
information in a Special Access Program (SAP), information identified as 
sensitive compartmented information (SCI), or high risk nuclear weapons-
related data.
    (ii) Contractor actions that result in a breakdown of the safeguards 
and security management system that can reasonably be expected to result 
in the loss, compromise, or unauthorized disclosure of Top Secret 
Restricted Data, or other information classified as Top Secret, any 
classification level of information in a SAP, information identified

[[Page 519]]

as SCI, or high risk nuclear weapons-related data.
    (iii) Failure to promptly report the loss, compromise, or 
unauthorized disclosure of Top Secret Restricted Data, or other 
information classified as Top Secret, any classification level of 
information in a SAP, information identified as SCI, or high risk 
nuclear weapons-related data.
    (iv) Failure to timely implement corrective actions stemming from 
the loss, compromise, or unauthorized disclosure of Top Secret 
Restricted Data or other information classified as Top Secret, any 
classification level of information in a SAP, information identified as 
SCI, or high risk nuclear weapons-related data.
    (2) Second Degree: Performance failures that have been determined, 
in accordance with applicable law, DOE regulation, or directive, to have 
actually resulted in, or that can reasonably be expected to result in, 
serious damage to the national security. The following are examples of 
performance failures or performance failures of similar import that will 
be considered second degree:
    (i) Non-compliance with applicable laws, regulations, and DOE 
directives actually resulting in, or creating risk of, loss, compromise, 
or unauthorized disclosure of Secret Restricted Data or other 
information classified as Secret.
    (ii) Contractor actions that result in a breakdown of the safeguards 
and security management system that can reasonably be expected to result 
in the loss, compromise, or unauthorized disclosure of Secret Restricted 
Data, or other information classified as Secret.
    (iii) Failure to promptly report the loss, compromise, or 
unauthorized disclosure of Restricted Data or other classified 
information regardless of classification (except for information covered 
by paragraph (d)(1)(iii) of this clause).
    (iv) Failure to timely implement corrective actions stemming from 
the loss, compromise, or unauthorized disclosure of Secret Restricted 
Data or other classified information classified as Secret.
    (3) Third Degree: Performance failures that have been determined, in 
accordance with applicable law, regulation, or DOE directive, to have 
actually resulted in, or that can reasonably be expected to result in, 
undue risk to the common defense and security. In addition, this 
category includes performance failures that result from a lack of 
Contractor management and/or employee attention to the proper 
safeguarding of Restricted Data and other classified information. These 
performance failures may be indicators of future, more severe 
performance failures and/or conditions, and if identified and corrected 
early would prevent serious incidents. The following are examples of 
performance failures or performance failures of similar import that will 
be considered third degree:
    (i) Non-compliance with applicable laws, regulations, and DOE 
directives actually resulting in, or creating risk of, loss, compromise, 
or unauthorized disclosure of Restricted Data or other information 
classified as Confidential.
    (ii) Failure to promptly report alleged or suspected violations of 
laws, regulations, or directives pertaining to the safeguarding of 
Restricted Data or other classified information.
    (iii) Failure to identify or timely execute corrective actions to 
mitigate or eliminate identified vulnerabilities and reduce residual 
risk relating to the protection of Restricted Data or other classified 
information in accordance with the Contractor's Safeguards and Security 
Plan or other security plan, as applicable.
    (iv) Contractor actions that result in performance failures which 
unto themselves pose minor risk, but when viewed in the aggregate 
indicate degradation in the integrity of the Contractor's safeguards and 
security management system relating to the protection of Restricted Data 
and other classified information.

                             (End of clause)

    Alternate I (AUG 2009). As prescribed in 970.1504-5(b)(2), replace 
paragraphs (a), (b)(1), (b)(2), and (b)(3) of the basic clause with the 
following paragraphs (a), (b)(1), (b)(2), and (b)(3) and delete 
paragraph (d).

    (a) General. (1) The payment of earned fee, fixed fee, profit, or 
share of cost savings under this contract is dependent upon the 
Contractor's or Contractor employees' compliance with the terms and 
conditions of this contract relating to environment, safety and health 
(ES&H), which includes worker safety and health (WS&H), including 
performance under an approved Integrated Safety Management System 
(ISMS).
    (2) The ES&H performance requirements of this contract are set forth 
in its ES&H terms and conditions, including the DOE approved contractor 
ISMS or similar document. Financial incentives for timely mission 
accomplishment or cost effectiveness shall never compromise or impede 
full and effective implementation of the ISMS and full ES&H compliance.
    (3) If the Contractor does not meet the performance requirements of 
this contract relating to ES&H during any performance evaluation period 
established under the contract pursuant to the clause of this contract 
entitled, ``Total Available Fee: Base Fee Amount and Performance Fee 
Amount,'' otherwise earned fee, fixed fee, profit or share of

[[Page 520]]

cost savings may be unilaterally reduced by the Contracting Officer.
    (b) Reduction amount. (1) The amount of earned fee, fixed fee, 
profit, or share of cost savings that may be unilaterally reduced will 
be determined by the severity of the performance failure pursuant to the 
degrees specified in paragraph (c) of this clause.
    (2) If a reduction of earned fee, fixed fee, profit, or share of 
cost savings is warranted, unless mitigating factors apply, such 
reduction shall not be less than 26 percent nor greater than 100 percent 
of the amount of earned fee, fixed fee, profit, or the Contractor's 
share of cost savings for a first degree performance failure, not less 
than 11 percent nor greater than 25 percent for a second degree 
performance failure, and up to 10 percent for a third degree performance 
failure.
    (3) In determining the amount of the reduction and the applicability 
of mitigating factors, the Contracting Officer must consider the 
Contractor's overall performance in meeting the ES&H requirements of the 
contract. Such consideration must include performance against any site 
specific performance criteria/requirements that provide additional 
definition, guidance for the amount of reduction, or guidance for the 
applicability of mitigating factors. In all cases, the Contracting 
Officer must consider mitigating factors that may warrant a reduction 
below the applicable range (see 48 CFR 970.1504-1-2). The mitigating 
factors include the following.
    (i) Degree of control the Contractor had over the event or incident.
    (ii) Efforts the Contractor had made to anticipate and mitigate the 
possibility of the event in advance.
    (iii) Contractor self-identification and response to the event to 
mitigate impacts and recurrence.
    (iv) General status (trend and absolute performance) of ES&H and 
compliance in related areas.
    (v) Contractor demonstration to the Contracting Officer's 
satisfaction that the principles of industrial ES&H standards are 
routinely practiced (e.g., Voluntary Protection Program Star Status, or 
ISO 14000 Certification).
    (vi) Event caused by ``Good Samaritan'' act by the Contractor (e.g., 
offsite emergency response).
    (vii) Contractor demonstration that a performance measurement system 
is routinely used to improve and maintain ES&H performance (including 
effective resource allocation) and to support DOE corporate decision-
making (e.g., policy, ES&H programs).
    (viii) Contractor demonstration that an Operating Experience and 
Feedback Program is functioning that demonstrably affects continuous 
improvement in ES&H by use of lessons-learned and best practices inter- 
and intra-DOE sites.

    Alternate II (AUG 2009). As prescribed in 970.1504-5(b)(3), insert 
the following as paragraphs (e) and (f), incentive fee or multiple fee 
basis (if Alternate I is also used, redesignate the following as 
paragraphs (d) and (e)).

    (e) Minimum requirements for specified level of performance. (1) At 
a minimum the Contractor must perform the following--
    (i) The requirements with specific incentives which do not require 
the achievement of cost efficiencies in order to be performed at the 
level of performance set forth in the Statement of Work, Work 
Authorization Directive, or similar document unless an otherwise minimum 
level of performance has been established in the specific incentive;
    (ii) All of the performance requirements directly related to 
requirements specifically incentivized which do not require the 
achievement of cost efficiencies in order to be performed at a level of 
performance such that the overall performance of these related 
requirements is at an acceptable level; and
    (iii) All other requirements at a level of performance such that the 
total performance of the contract is not jeopardized.
    (2) The evaluation of the Contractor's achievement of the level of 
performance shall be unilaterally determined by the Government. To the 
extent that the Contractor fails to achieve the minimum performance 
levels specified in the Statement of Work, Work Authorization Directive, 
or similar document, during the performance evaluation period, the DOE 
Operations/Field Office Manager, or designee, may reduce any otherwise 
earned fee, fixed fee, profit, or shared net savings for the performance 
evaluation period. Such reduction shall not result in the total of 
earned fee, fixed fee, profit, or shared net savings being less than 25 
percent of the total available fee amount. Such 25 percent shall include 
base fee, if any.
    (f) Minimum requirements for cost performance. (1) Requirements 
incentivized by other than cost incentives must be performed within 
their specified cost constraint and must not adversely impact the costs 
of performing unrelated activities.
    (2) The performance of requirements with a specific cost incentive 
must not adversely impact the costs of performing unrelated 
requirements.
    (3) The Contractor's performance within the stipulated cost 
performance levels for the performance evaluation period shall be 
determined by the Government. To the extent the Contractor fails to 
achieve the stipulated cost performance levels, the DOE Operations/Field 
Office Manager, or designee, may reduce in whole or in part any 
otherwise earned fee, fixed fee, profit, or shared net savings for the 
performance evaluation period. Such reduction shall not result in the

[[Page 521]]

total of earned fee, fixed fee, profit or shared net savings being less 
than 25 percent of the total available fee amount. Such 25 percent shall 
include base fee, if any.

[69 FR 68782, Dec. 10, 2004, as amended at 74 FR 36375, 36378, 36380, 
July 22, 2009; 75 FR 68221, Nov. 5, 2010]



Sec. 970.5215-4  Cost reduction.

    As prescribed in 970.1504-5(c), insert the following clause:

                        Cost Reduction (AUG 2009)

    (a) General. It is the Department of Energy's (DOE's) intent to have 
its facilities and laboratories operated in an efficient and effective 
manner. To this end, the Contractor shall assess its operations and 
identify areas where cost reductions would bring cost efficiency to 
operations without adversely affecting the level of performance required 
by the contract. The Contractor, to the maximum extent practical, shall 
identify areas where cost reductions may be effected, and develop and 
submit Cost Reduction Proposals (CRPs) to the Contracting Officer. If 
accepted, the Contractor may share in any shared net savings from 
accepted CRPs in accordance with paragraph (g) of this clause.
    (b) Definitions. Administrative cost is the Contractor cost of 
developing and administering the CRP.
    Design, process, or method change is a change to a design, process, 
or method which has established cost, technical and schedule baseline, 
is defined, and is subject to a formal control procedure. Such a change 
must be innovative, initiated by the Contractor, and applied to a 
specific project or program.
    Development cost is the Contractor cost of up-front planning, 
engineering, prototyping, and testing of a design, process, or method.
    DOE cost is the Government cost incurred implementing and validating 
the CRP.
    Implementation cost is the Contractor cost of tooling, facilities, 
documentation, etc., required to effect a design, process, or method 
change once it has been tested and approved.
    Net Savings means a reduction in the total amount (to include all 
related costs and fee) of performing the effort where the savings revert 
to DOE control and may be available for deobligation. Such savings may 
result from a specific cost reduction effort which is negotiated on a 
cost-plus-incentive-fee, fixed-price incentive, or firm-fixed-price 
basis, or may result directly from a design, process, or method change. 
They may also be savings resulting from formal or informal direction 
given by DOE or from changes in the mission, work scope, or routine 
reorganization of the Contractor due to changes in the budget.
    Shared Net Savings are those net savings which result from--
    (1) A specific cost reduction effort which is negotiated on a cost-
plus-incentive-fee or fixed-price incentive basis, and is the difference 
between the negotiated target cost of performing an effort as negotiated 
and the actual allowable cost of performing that effort; or
    (2) A design, process, or method change, which occurs in the fiscal 
year in which the change is accepted and the subsequent fiscal year, and 
is the difference between the estimated cost of performing an effort as 
originally planned and the actual allowable cost of performing that same 
effort utilizing a revised plan intended to reduce costs along with any 
Contractor development costs, implementation costs, administrative 
costs, and DOE costs associated with the revised plan. Administrative 
costs and DOE costs are only included at the discretion of the 
Contracting Officer. Savings resulting from formal or informal direction 
given by the DOE or changes in the mission, work scope, or routine 
reorganization of the Contractor due to changes in the budget are not to 
be considered as shared net savings for purposes of this clause and do 
not qualify for incentive sharing.
    (c) Procedure for submission of CRPs. (1) CRPs for the establishment 
of cost-plus-incentive-fee, fixed-price incentive, or firm-fixed-price 
efforts or for design, process, or methods changes submitted by the 
Contractor shall contain, at a minimum, the following:
    (i) Current Method (Baseline)--A verifiable description of the 
current scope of work, cost, and schedule to be impacted by the 
initiative, and supporting documentation.
    (ii) New Method (New Proposed Baseline)--A verifiable description of 
the new scope of work, cost, and schedule, how the initiative will be 
accomplished, and supporting documentation.
    (iii) Feasibility Assessment--A description and evaluation of the 
proposed initiative and benefits, risks, and impacts of implementation. 
This evaluation shall include an assessment of the difference between 
the current method (baseline) and proposed new method including all 
related costs.
    (2) In addition, CRPs for the establishment of cost-plus-incentive-
fee, fixed-price incentive, or firm-fixed-price efforts shall contain, 
at a minimum, the following--
    (i) The proposed contractual arrangement and the justification for 
its use; and
    (ii) A detailed cost/price estimate and supporting rationale. If the 
approach is proposed on an incentive basis, minimum and maximum cost 
estimates should be included along with any proposed sharing 
arrangements.
    (d) Evaluation and decision. All CRPs must be submitted to and 
approved by the Contracting Officer. Included in the information 
provided by the CRP must be a discussion of

[[Page 522]]

the extent the proposed cost reduction effort may--
    (1) Pose a risk to the health and safety of workers, the community, 
or to the environment;
    (2) Result in a waiver or deviation from DOE requirements, such as 
DOE Orders and joint oversight agreements;
    (3) Require a change in other contractual agreements;
    (4) Result in significant organizational and personnel impacts;
    (5) Create a negative impact on the cost, schedule, or scope of work 
in another area;
    (6) Pose a potential negative impact on the credibility of the 
Contractor or the DOE; and
    (7) Impact successful and timely completion of any of the work in 
the cost, technical, and schedule baseline.
    (e) Acceptance or rejection of CRPs. Acceptance or rejection of a 
CRP is a unilateral determination made by the Contracting Officer. The 
Contracting Officer will notify the Contractor that a CRP has been 
accepted, rejected, or deferred within (Insert Number) days of receipt. 
The only CRPs that will be considered for acceptance are those which the 
Contractor can demonstrate, at a minimum, will--
    (1) Result in net savings (in the sharing period if a design, 
process, or method change);
    (2) Not reappear as costs in subsequent periods; and
    (3) Not result in any impairment of essential functions.
    (f) The failure of the Contracting Officer to notify the Contractor 
of the acceptance, rejection, or deferral of a CRP within the specified 
time shall not be construed as approval.
    (g) Adjustment to original estimated cost and fee. If a CRP is 
established on a cost-plus-incentive-fee, fixed-price incentive or firm-
fixed-price basis, the originally estimated cost and fee for the total 
effort shall be adjusted to remove the estimated cost and fee amount 
associated with the CRP effort.
    (h) Sharing arrangement. If a CRP is accepted, the Contractor may 
share in the shared net savings. For a CRP negotiated on a cost-plus-
incentive-fee or fixed-price incentive basis, with the specific 
incentive arrangement (negotiated target costs, target fees, share 
lines, ceilings, profit, etc.) set forth in the contractual document 
authorizing the effort, the Contractor's share shall be the actual fee 
or profit resulting from such an arrangement. For a CRP negotiated as a 
cost savings incentive resulting from a design, process, or method 
change, the Contractor's share shall be a percentage, not to exceed 25% 
of the shared net savings. The specific percentage and sharing period 
shall be set forth in the contractual document.
    (i) Validation of Shared Net Savings. The Contracting Officer shall 
validate actual shared net savings. If actual shared net savings cannot 
be validated, the Contractor will not be entitled to a share of the net 
shared savings.
    (j) Relationship to other incentives. Only those benefits of an 
accepted CRP not awardable under other clauses of this contract shall be 
considered under this clause.
    (k) Subcontracts. The Contractor may include a clause similar to 
this clause in any subcontract. In calculating any estimated shared net 
savings in a CRP under this contract, the Contractor's administration, 
development, and implementation costs shall include any subcontractor's 
allowable costs, and any CRP incentive payments to a subcontractor 
resulting from the acceptance of such CRP. The Contractor may choose any 
arrangement for subcontractor CRP incentive payments, provided that the 
payments not reduce the DOE's share of shared net savings.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, 36378, 36380, 
July 22, 2009]



Sec. 970.5215-5  Limitation on fee.

    As prescribed in 970.1504-5(d), the contracting officer shall insert 
the following provision:

                      Limitation on Fee (DEC 2000)

    (a) For the purpose of this solicitation, fee amounts shall not 
exceed the total available fee allowed by the fee policy at 48 CFR 
970.1504-1-1, or as specifically stated elsewhere in the solicitation.
    (b) The Government reserves the unilateral right, in the event an 
offeror's proposal is selected for award, to limit: fixed fee to not 
exceed an amount established pursuant to 48 CFR 970.1504-1-5; and total 
available fee to not exceed an amount established pursuant to 48 CFR 
970.1504-1-9; or fixed fee or total available fee to an amount as 
specifically stated elsewhere in the solicitation.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, July 22, 2009]



Sec. 970.5217-1  Work for Others Program.

    As prescribed in 970.1707-4 insert the following clause:

        Work for Others Program (Non-DOE Funded Work) (JAN 2005)

    (a) Authority to perform work for others. Pursuant to the Economy 
Act of 1932, as amended (31 U.S.C. 1535), and the Atomic Energy Act of 
1954, as amended (42 U.S.C. 2011 et seq.) or other applicable authority, 
the Contractor may perform work for non-DOE entities

[[Page 523]]

(sponsors) on a fully reimbursable basis in accordance with this clause.
    (b) Contractor's implementation. The Contractor must draft, 
implement, and maintain formal policies, practices, and procedures in 
accordance with this clause, which must be submitted to the Contracting 
Officer for review and approval.
    (c) Conditions of participation in work for others program. The 
Contractor--
    (1) Must not perform Work for Others activities that would place it 
in direct competition with the domestic private sector;
    (2) Must not respond to a request for proposals or any other 
solicitation from another Federal agency or non-Federal organization 
that involves direct comparative competition, either as an offeror, team 
member, or subcontractor to an offeror; however, the Contractor may, 
following notification to the Contracting Officer, respond to Broad 
Agency Announcements, Financial Assistance solicitations, and similar 
solicitations from another Federal Agency or non-Federal organizations 
when the selection is based on merit or peer review, the work involves 
basic or applied research to further advance scientific knowledge or 
understanding, and a response does not result in direct, comparative 
competition;
    (3) Must not commence work on any Work for Others activity until a 
Work for Others proposal package has been approved by the DOE 
Contracting Officer or designated representative;
    (4) Must not incur project costs until receipt of DOE notification 
that a budgetary resource is available for the project, except as 
provided in 48 CFR 970.5232-6;
    (5) Must ensure that all costs associated with the performance of 
the work, including specifically all DOE direct costs and applicable 
surcharges, are included in any Work for Others proposal;
    (6) Must maintain records for the accumulation of costs and the 
billing of such work to ensure that DOE's appropriated funds are not 
used in support of Work for Others activities and to provide an 
accounting of the expenditures to DOE and the sponsor upon request;
    (7) Must perform all Work for Others projects in accordance with the 
standards, policies, and procedures that apply to performance under this 
contract, including but not limited to environmental, safety and health, 
security, safeguards and classification procedures, and human and animal 
research regulations;
    (8) May subcontract portion(s) of a Work for Others project; 
however, the Contractor must select the subcontractor and the work to be 
subcontracted. Any subcontracted work must be in direct support of the 
DOE Contractor's performance as defined in the DOE approved work for 
others proposal package; and,
    (9) Must maintain a summary listing of project information for each 
active Work for Others project, consisting of--
    (i) Sponsoring agency;
    (ii) Total estimated costs;
    (iii) Project title and description;
    (iv) Project point of contact; and,
    (v) Estimated start and completion dates.
    (d) Negotiation and execution of work for others agreement. (1) When 
delegated authority by the Contracting Officer, the Contractor may 
negotiate the terms and conditions that will govern the performance of a 
specific Work for Others project. Such terms and conditions must be 
consistent with the terms, conditions, and requirements of the 
Contractor's contract with DOE. The Contractor may use DOE-approved 
contract terms and conditions as delineated in DOE Manual 481.1-1A or 
terms and conditions previously approved by the responsible Contracting 
Officer or authorized designee for agreements with non-Federal entities. 
The Contractor must not hold itself out as representing DOE when 
negotiating the proposed Work for Others agreement.
    (2) The Contractor must submit all Work for Others agreements to the 
DOE Contracting Officer for DOE review and approval. The Contractor may 
not execute any proposed agreement until it has received notice of DOE 
approval.
    (e) Preparation of project proposals. When the Contractor proposes 
to perform Work for Others activities pursuant to this clause, it may 
assist the project sponsor in the preparation of project proposal 
packages including the preparation of cost estimates.
    (f) Work for others appraisals. DOE may conduct periodic appraisals 
of the Contractor's compliance with its Work for Others Program 
policies, practices and procedures. The Contractor must provide 
facilities and other support in conjunction with such appraisals as 
directed by the Contracting Officer or authorized designee.
    (g) Annual work for others report. The Contractor must provide 
assistance as required by the Contracting Officer or authorized designee 
in the preparation of a DOE Annual Summary Report of Work for Others 
Activities under the contract.

                             (End of clause)

[69 FR 75004, Dec. 15, 2004, as amended at 74 FR 36375, 36378, July 22, 
2009]



Sec. 970.5222-1  Collective Bargaining Agreements Management and 
          Operating Contracts.

    As prescribed in 970.2201-1-3, insert the following clause:

[[Page 524]]

  Collective Bargaining Agreements--Management and Operating Contracts 
                               (DEC 2000)

    When negotiating collective bargaining agreements applicable to the 
work force under this contract, the Contractor shall use its best 
efforts to ensure such agreements contain provisions designed to assure 
continuity of services. All such agreements entered into during the 
contract period of performance should provide that grievances and 
disputes involving the interpretation or application of the agreement 
will be settled without resorting to strike, lockout, or other 
interruption of normal operations. For this purpose, each collective 
bargaining agreement should provide an effective grievance procedure 
with arbitration as its final step, unless the parties mutually agree 
upon some other method of assuring continuity of operations. As part of 
such agreements, management and labor should agree to cooperate fully 
with the Federal Mediation and Conciliation Service. The Contractor 
shall include the substance of this clause in any subcontracts for 
protective services or other services performed on the DOE-owned site 
which will affect the continuity of operation of the facility.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, July 22, 2009; 
75 FR 68221, Nov. 5, 2010]



Sec. 970.5222-2  Overtime management.

    As prescribed in 970.2201-2-2, insert the following clause:

                     Overtime Management (DEC 2000)

    (a) The Contractor shall maintain adequate internal controls to 
ensure that employee overtime is authorized only if cost effective and 
necessary to ensure performance of work under this contract.
    (b) The Contractor shall notify the Contracting Officer when in any 
given year it is likely that overtime usage as a percentage of payroll 
may exceed 4%.
    (c) The Contracting Officer may require the submission, for 
approval, of a formal annual overtime control plan whenever Contractor 
overtime usage as a percentage of payroll has exceeded, or is likely to 
exceed, 4%, or if the Contracting Officer otherwise deems overtime 
expenditures excessive. The plan shall include, at a minimum--
    (1) An overtime premium fund (maximum dollar amount);
    (2) Specific controls for casual overtime for non-exempt employees;
    (3) Specific parameters for allowability of exempt overtime;
    (4) An evaluation of alternatives to the use of overtime; and
    (5) Submission of a semi-annual report that includes for exempt and 
non-exempt employees--
    (i) Total cost of overtime;
    (ii) Total cost of straight time;
    (iii) Overtime cost as a percentage of straight-time cost;
    (iv) Total overtime hours;
    (v) Total straight-time hours; and
    (vi) Overtime hours as a percentage of straight-time hours.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, 36378, 36380, 
July 22, 2009]



Sec. 970.5223-1  Integration of environment, safety, and health into 
          work planning and execution.

    As prescribed in 970.2303-3(b), insert the following clause:

 Integration of Environment, Safety, and Health Into Work Planning and 
                          Execution (DEC 2000)

    (a) For the purposes of this clause,
    (1) Safety encompasses environment, safety and health, including 
pollution prevention and waste minimization; and
    (2) Employees include subcontractor employees.
    (b) In performing work under this contract, the Contractor shall 
perform work safely, in a manner that ensures adequate protection for 
employees, the public, and the environment, and shall be accountable for 
the safe performance of work. The Contractor shall exercise a degree of 
care commensurate with the work and the associated hazards. The 
Contractor shall ensure that management of environment, safety and 
health (ES&H) functions and activities becomes an integral but visible 
part of the Contractor's work planning and execution processes. The 
Contractor shall, in the performance of work, ensure that:
    (1) Line management is responsible for the protection of employees, 
the public, and the environment. Line management includes those 
Contractor and subcontractor employees managing or supervising employees 
performing work.
    (2) Clear and unambiguous lines of authority and responsibility for 
ensuring ES&H are established and maintained at all organizational 
levels.
    (3) Personnel possess the experience, knowledge, skills, and 
abilities that are necessary to discharge their responsibilities.

[[Page 525]]

    (4) Resources are effectively allocated to address ES&H, 
programmatic, and operational considerations. Protecting employees, the 
public, and the environment is a priority whenever activities are 
planned and performed.
    (5) Before work is performed, the associated hazards are evaluated 
and an agreed-upon set of ES&H standards and requirements are 
established which, if properly implemented, provide adequate assurance 
that employees, the public, and the environment are protected from 
adverse consequences.
    (6) Administrative and engineering controls to prevent and mitigate 
hazards are tailored to the work being performed and associated hazards. 
Emphasis should be on designing the work and/or controls to reduce or 
eliminate the hazards and to prevent accidents and unplanned releases 
and exposures.
    (7) The conditions and requirements to be satisfied for operations 
to be initiated and conducted are established and agreed-upon by DOE and 
the Contractor. These agreed-upon conditions and requirements are 
requirements of the contract and binding upon the Contractor. The extent 
of documentation and level of authority for agreement shall be tailored 
to the complexity and hazards associated with the work and shall be 
established in a Safety Management System.
    (c) The Contractor shall manage and perform work in accordance with 
a documented Safety Management System (System) that fulfills all 
conditions in paragraph (b) of this clause at a minimum. Documentation 
of the System shall describe how the Contractor will--
    (1) Define the scope of work;
    (2) Identify and analyze hazards associated with the work;
    (3) Develop and implement hazard controls;
    (4) Perform work within controls; and
    (5) Provide feedback on adequacy of controls and continue to improve 
safety management.
    (d) The System shall describe how the Contractor will establish, 
document, and implement safety performance objectives, performance 
measures, and commitments in response to DOE program and budget 
execution guidance while maintaining the integrity of the System. The 
System shall also describe how the Contractor will measure system 
effectiveness.
    (e) The Contractor shall submit to the Contracting Officer 
documentation of its System for review and approval. Dates for 
submittal, discussions, and revisions to the System will be established 
by the Contracting Officer. Guidance on the preparation, content, 
review, and approval of the System will be provided by the Contracting 
Officer. On an annual basis, the Contractor shall review and update, for 
DOE approval, its safety performance objectives, performance measures, 
and commitments consistent with and in response to DOE's program and 
budget execution guidance and direction. Resources shall be identified 
and allocated to meet the safety objectives and performance commitments 
as well as maintain the integrity of the entire System. Accordingly, the 
System shall be integrated with the Contractor's business processes for 
work planning, budgeting, authorization, execution, and change control.
    (f) The Contractor shall comply with, and assist the Department of 
Energy in complying with, ES&H requirements of all applicable laws and 
regulations, and applicable directives identified in the clause of this 
contract entitled ``Laws, Regulations, and DOE Directives.'' The 
Contractor shall cooperate with Federal and non-Federal agencies having 
jurisdiction over ES&H matters under this contract.
    (g) The Contractor shall promptly evaluate and resolve any 
noncompliance with applicable ES&H requirements and the System. If the 
Contractor fails to provide resolution or if, at any time, the 
Contractor's acts or failure to act causes substantial harm or an 
imminent danger to the environment or health and safety of employees or 
the public, the Contracting Officer may issue an order stopping work in 
whole or in part. Any stop work order issued by a contracting officer 
under this clause (or issued by the Contractor to a subcontractor in 
accordance with paragraph (i) of this clause) shall be without prejudice 
to any other legal or contractual rights of the Government. In the event 
that the Contracting Officer issues a stop work order, an order 
authorizing the resumption of the work may be issued at the discretion 
of the Contracting Officer. The Contractor shall not be entitled to an 
extension of time or additional fee or damages by reason of, or in 
connection with, any work stoppage ordered in accordance with this 
clause.
    (h) Regardless of the performer of the work, the Contractor is 
responsible for compliance with the ES&H requirements applicable to this 
contract. The Contractor is responsible for flowing down the ES&H 
requirements applicable to this contract to subcontracts at any tier to 
the extent necessary to ensure the Contractor's compliance with the 
requirements.
    (i) The Contractor shall include a clause substantially the same as 
this clause in subcontracts involving complex or hazardous work on site 
at a DOE-owned or -leased facility. Such subcontracts shall provide for 
the right to stop work under the conditions described in paragraph (g) 
of this clause. Depending on the complexity and hazards associated with 
the work, the Contractor may choose not to require the subcontractor to 
submit a Safety Management System for the Contractor's review and 
approval.

[[Page 526]]

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, 36378, 36380, 
July 22, 2009; 75 FR 68221, Nov. 5, 2010]



Sec. 970.5223-3  Agreement regarding Workplace Substance Abuse Programs 
          at DOE sites.

    As prescribed in 970.2305-4(a), the contracting officer shall insert 
the following provision:

Agreement Regarding Workplace Substance Abuse Programs at DOE Sites (DEC 
                                  2010)

    (a) Any contract awarded as a result of this solicitation will be 
subject to the policies, criteria, and procedures of 10 CFR part 707, 
Workplace Substance Abuse Programs at DOE Sites.
    (b) By submission of its offer, the officer agrees to provide to the 
Contracting Officer, within 30 days after notification of selection for 
award, or award of a contract, whichever occurs first, pursuant to this 
solicitation, its written workplace substance abuse program consistent 
with the requirements of 10 CFR part 707. DOE may grant an extension to 
the notification or implementation period if necessary as per 10 CFR 
707.5(g).
    (c) Failure of the offeror to agree to the condition of 
responsibility set forth in paragraph (b) of this provision, renders the 
offeror unqualified and ineligible for award.

                           (End of provision)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36380, July 22, 2009; 
75 FR 68220, Nov. 5, 2010]



Sec. 970.5223-4  Workplace Substance Abuse Programs at DOE Sites.

    As prescribed in 970.2305-4(b), insert the following clause:

       Workplace Substance Abuse Programs at DOE Sites (DEC 2010)

    (a) Program implementation. The Contractor shall, consistent with 10 
CFR part 707, Workplace Substance Abuse Programs at DOE Sites, 
incorporated herein by reference with full force and effect, develop, 
implement, and maintain a workplace substance abuse program.
    (b) Remedies. In addition to any other remedies available to the 
Government, the Contractor's failure to comply with the requirements of 
10 CFR part 707 or to perform in a manner consistent with its approved 
program may render the Contractor subject to: the suspension of contract 
payments, or, where applicable, a reduction in award fee; termination 
for default; and suspension or debarment.
    (c) Subcontracts. (1) The Contractor agrees to notify the 
Contracting Officer reasonably in advance of, but not later than 30 days 
prior to, the award of any subcontract the Contractor believes may be 
subject to the requirements of 10 CFR part 707, unless the Contracting 
Officer agrees to a different date.
    (2) The DOE Prime Contractor shall require all subcontracts subject 
to the provisions of 10 CFR part 707 to agree to develop and implement a 
workplace substance abuse program that complies with the requirements of 
10 CFR part 707, Workplace Substance Abuse Programs at DOE Sites, as a 
condition for award of the subcontract. The DOE Prime Contractor shall 
review and approve each subcontractor's program, and shall periodically 
monitor each subcontractor's implementation of the program for 
effectiveness and compliance with 10 CFR part 707.
    (3) The Contractor agrees to include, and require the inclusion of, 
the requirements of this clause in all subcontracts, at any tier, that 
are subject to the provisions of 10 CFR part 707.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, 36378, 36380, 
July 22, 2009; 75 FR 68220, Nov. 5, 2010]



Sec. 970.5223-6  Executive Order 13423, Strengthening Federal 
          Environmental, Energy, and Transportation Management.

    In accordance with the prescriptions at 923.002(b) or 970.2301-2(b), 
insert the following in contracts for the operation of a DOE facility or 
motor vehicle fleet.

Executive Order 13423, Strengthening Federal Environmental, Energy, and 
                  Transportation Management (OCT 2010)

    Since this contract involves Contractor operation of Government-
owned facilities and/or motor vehicles, the provisions of Executive 
Order 13423 are applicable to the Contractor to the same extent they 
would be applicable if the Government were operating the facilities or 
motor vehicles. Information on the requirements of the Executive Order 
may be found at http://www.archives.gov/federal-register/executive-
orders/.

                             (End of clause)

[75 FR 57695, Sept. 22, 2010]

[[Page 527]]



Sec. 970.5223-7  Sustainable acquisition program.

    As prescribed in 970.2301-2, insert the following clause in 
contracts:

               Sustainable Acquisition Program (OCT 2010)

    (a) Pursuant to Executive Order 13423, Strengthening Federal 
Environmental, Energy and Transportation Management, and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance, the Department of Energy (DOE) is committed to managing its 
facilities in an environmentally preferable and sustainable manner that 
will promote the natural environment and protect the health and well 
being of its Federal employees and contractor service providers. In the 
performance of work under this contract, the Contractor shall provide 
its services in a manner that promotes the natural environment, reduces 
greenhouse gas emissions and protects the health and well being of 
Federal employees, contract service providers and visitors using the 
facility.
    (b) Green purchasing or sustainable acquisition has several 
interacting initiatives. The Contractor must comply with initiatives 
that are current as of the contract award date. DOE may require 
compliance with revised initiatives from time to time. The Contractor 
may request an equitable adjustment to the terms of its contract using 
the procedures at 48 CFR 970.5243-1 Changes. The initiatives important 
to these Orders are explained on the following Government or Industry 
Internet Sites:
    (1) Recycled Content Products are described at http://epa.gov/cpg.
    (2) Biobased Products are described at http://www.biopreferred.gov/.
    (3) Energy efficient products are at http://energystar.gov/products 
for Energy Star products.
    (4) Energy efficient products are at http://www.femp.energy.gov/
procurement for FEMP designated products.
    (5) Environmentally preferable and energy efficient electronics 
including desktop computers, laptops and monitors are at http://
www.epeat.net the Electronic Products Environmental Assessment Tool 
(EPEAT) the Green Electronics Council site.
    (6) Green house gas emission inventories are required, including 
Scope 3 emissions which include contractor emissions. These are 
discussed at Section 13 of Executive Order 13514 which can be found at 
http://www.archives.gov/federal-register/executive-orders/
disposition.html.
    (7) Non-Ozone Depleting Alternative Products are at http://
www.epa.gov/ozone/strathome.html.
    (8) Water efficient plumbing products are at http://epa.gov/
watersense.
    (c) The clauses at FAR 52.223-2, Affirmative Procurement of Biobased 
Products under Service and Construction Contracts, 52.223-15, Energy 
Efficiency in Energy Consuming Products, and 52.223-17 Affirmative 
Procurement of EPA-Designated Items in Service and Construction 
Contracts, require the use of products that have biobased content, are 
energy efficient, or have recycled content. To the extent that the 
services provided by the Contractor require provision of any of the 
above types of products, the Contractor must provide the energy 
efficient and environmentally sustainable type of product unless that 
type of product--
    (1) Is not available;
    (2) Is not life cycle cost effective (or does not exceed 110% of the 
price of alternative items if life cycle cost data is unavailable), 
EPEAT is an example of lifecycle costs that have been analyzed by DOE 
and found to be acceptable at the silver and gold level;
    (3) Does not meet performance needs; or,
    (4) Cannot be delivered in time to meet a critical need.
    (d) In the performance of this contract, the Contractor shall comply 
with the requirements of Executive Order 13423, Strengthening Federal 
Environmental, Energy and Transportation Management, (http://
www.epa.gov/greeningepa/practices/eo13423.htm) and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance (http://www.archives.gov/federal-register/executive-orders/
disposition.html). The Contractor shall also consider the best practices 
within the DOE Acquisition Guide, Chapter 23, Acquisition Considerations 
Regarding Federal Leadership in Environmental, Energy, and Economic 
Performance. This guide includes information concerning recycled content 
products, biobased products, energy efficient products, water efficient 
products, alternative fuels and vehicles, non ozone depleting substances 
and other environmentally preferable products and services. This guide 
is available on the Internet at: http://management.energy.gov/documents/
AcqGuide23pt0Rev1.pdf.
    (e) Contractors must establish and maintain a documented energy 
management program which includes requirements for energy and water 
efficient equipment, EnergyStar or WaterSense, as applicable and 
procedures for verification of purchases, following the criteria in DOE 
Order 430.2B, Departmental Energy, Renewable Energy, and Transportation 
Management, Attachment 1, or its successor. This requirement should not 
be flowed down to subcontractors.
    (f) In complying with the requirements of paragraph (c) of this 
clause, the Contractor shall coordinate its activities with and submit 
required reports through the Environmental Sustainability Coordinator or 
equivalent position.

[[Page 528]]

    (g) The Contractor shall prepare and submit performance reports 
using prescribed DOE formats, at the end of the Federal fiscal year, on 
matters related to the acquisition of environmentally preferable and 
sustainable products and services. This is a material delivery under the 
contract. Failure to perform this requirement may be considered a 
failure that endangers performance of this contract and may result in 
termination for default [see FAR 52.249-6, Termination (Cost 
Reimbursement)].
    (h) These provisions shall be flowed down only to first tier 
subcontracts exceeding the simplified acquisition threshold that support 
operation of the DOE facility and offer significant subcontracting 
opportunities for energy efficient or environmentally sustainable 
products or services. The Subcontractor will comply with the procedures 
in paragraphs (c) through (f) of this clause regarding the collection of 
all data necessary to generate the reports required under paragraphs (c) 
through (f) of this clause, and submit the reports directly to the Prime 
Contractor's Environmental Sustainability Coordinator at the supported 
facility. The Subcontractor will advise the Contractor if it is unable 
to procure energy efficient and environmentally sustainable items and 
cite which of the reasons in paragraph (c) of this clause apply. The 
reports may be submitted at the conclusion of the subcontract term 
provided that the subcontract delivery term is not multi-year in nature. 
If the delivery term is multi-year, the Subcontractor shall report its 
accomplishments for each Federal fiscal year in a manner and at a time 
or times acceptable to both parties. Failure to comply with these 
reporting requirements may be considered a breach of contract with 
attendant consequences.
    (i) When this clause is used in a subcontract, the word 
``Contractor'' will be understood to mean ``Subcontractor.''

                             (End of clause)

    Alternate I for Construction Contracts and Subcontracts (OCT 2010)--
When contracting for construction, alteration, or renovation of DOE 
facilities, substitute the following paragraphs (d) through (i):
    (d) In the performance of this contract, the Contractor shall comply 
with the requirements of Executive Order 13423, Strengthening Federal 
Environmental, Energy and Transportation Management, (http://
www.epa.gov/greeningepa/practices/eo13423.htm) and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance (http://www.archives.gov/federal-register/executive-orders/
disposition.html). The Contractor shall also consider the best practices 
within the DOE Acquisition Guide, Chapter 23, Acquisition Considerations 
Regarding Federal Leadership in Environmental, Energy, and Economic 
Performance. This guide includes information concerning recycled content 
products, biobased products, energy efficient products, water efficient 
products, alternative fuels and vehicles, non-ozone depleting substances 
and other environmentally preferable products and services. This guide 
is available on the Internet at: http://management.energy.gov/documents/
AcqGuide23pt0Rev1.pdf. When developing the Bill of Materials for 
approval of the Contracting Officer or Representative, the contractor 
shall specify energy efficient and environmentally sustainable materials 
to the extent possible within the constraints of the general design 
specifications. Compliance with the Guiding Principles for Federal 
Leadership in High Performance and Sustainable Buildings (Guiding 
Principles) shall be achieved through certification to the Leadership in 
Energy and Environmental Design (LEED) Gold level under the LEED rating 
system most suited to the building type.
    (e) [Reserved]
    (f) In complying with the requirements of paragraph (c) of this 
clause, the Contractor(s) shall coordinate its activities with and 
submit required reports through the Environmental Sustainability 
Coordinator or equivalent position.
    (g) The Contractor shall prepare and submit performance reports 
using prescribed DOE formats, at the end of the Federal fiscal year, on 
matters related to the acquisition of energy efficient and 
environmentally sustainable products and services. This is a material 
delivery under the contract. Failure to perform this requirement may be 
considered a failure that endangers performance of this contract and may 
result in termination for default, see 48 CFR 52.249-6, Termination 
(Cost Reimbursement).
    (h) These provisions shall be flowed down only to first tier 
construction subcontracts exceeding the simplified acquisition threshold 
that support operation of the DOE facility and offer significant 
opportunities for designating energy efficient or environmentally 
sustainable products or services in the materials selection process. The 
subcontractor will comply with the procedures in paragraphs (c) through 
(f) of this clause regarding the collection of all data necessary to 
generate the reports required under paragraphs (c) through (f) of this 
clause, and submit the reports directly to the Prime Contractor's 
Environmental Sustainability Coordinator at the supported facility. The 
subcontractor will advise the contractor if it is unable to procure 
energy efficient and environmentally sustainable items and cite which of 
the reasons in paragraph (c) of this clause apply. The reports may be 
submitted at the conclusion of the subcontract term provided that the 
subcontract delivery term

[[Page 529]]

is not multi-year in nature. If the delivery term is multi-year, the 
subcontractor shall report its accomplishments for each Federal fiscal 
year in a manner and at a time or times acceptable to both parties. 
Failure to comply with these reporting requirements may be considered a 
breach of contract with attendant consequences.
    (i) When this clause is used in a subcontract, the word 
``Contractor'' will be understood to mean ``Subcontractor.''

                             (End of clause)

[75 FR 57695, Sept. 22, 2010]



Sec. 970.5226-1  Diversity plan.

    As prescribed in 970.2671-2, insert the following clause:

                        Diversity Plan (DEC 2000)

    The Contractor shall submit a Diversity Plan to the Contracting 
Officer for approval within 90 days after the effective date of this 
contract (or contract modification, if appropriate). The Contractor 
shall submit an update to its Plan annually or with its annual fee 
proposal. Guidance for preparation of a Diversity Plan is provided in 
the Appendix --. The Plan shall include innovative strategies for 
increasing opportunities to fully use the talents and capabilities of a 
diverse work force. The Plan shall address, at a minimum, the 
Contractor's approach for promoting diversity through (1) the 
Contractor's work force, (2) educational outreach, (3) community 
involvement and outreach, (4) subcontracting, (5) economic development 
(including technology transfer), and (6) the prevention of profiling 
based on race or national origin.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68221, Nov. 5, 2010]



Sec. 970.5226-2  Workforce restructuring under section 3161 of the 
          National Defense Authorization Act for fiscal year 1993.

    As prescribed in 970.2672-3, insert the following clause:

   Workforce Restructuring under Section 3161 of the National Defense 
            Authorization Act for Fiscal Year 1993 (DEC 2000)

    (a) Consistent with the objectives of Section 3161 of the National 
Defense Authorization Act for Fiscal Year 1993, 42 U.S.C. 7274h, in 
instances where the Department of Energy has determined that a change in 
workforce at a Department of Energy Defense Nuclear Facility is 
necessary, the contractor agrees to (1) comply with the Department of 
Energy Workforce Restructuring Plan for the facility, if applicable, and 
(2) use its best efforts to accomplish workforce restructuring or 
displacement so as to mitigate social and economic impacts.
    (b) The requirements of this clause shall be included in 
subcontracts at any tier (except subcontracts for commercial items 
pursuant to 41 U.S.C. 403) expected to exceed $500,000.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68221, Nov. 5, 2010]



Sec. 970.5226-3  Community commitment.

    As prescribed in 970.2673-2, insert the following clause:

                     Community Commitment (DEC 2000)

    It is the policy of the DOE to be a constructive partner in the 
geographic region in which DOE conducts its business. The basic elements 
of this policy include: (1) Recognizing the diverse interests of the 
region and its stakeholders, (2) engaging regional stakeholders in 
issues and concerns of mutual interest, and (3) recognizing that giving 
back to the community is a worthwhile business practice. Accordingly, 
the Contractor agrees that its business operations and performance under 
the Contract will be consistent with the intent of the policy and 
elements set forth above.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 75 FR 68221, Nov. 5, 2010]



Sec. 970.5227-1  Rights in data-facilities.

    As prescribed in 48 CFR 970.2704-3(a), insert the following clause:

                  Rights in Data--Facilities (DEC 2000)

    (a) Definitions. (1) Computer data bases, as used in this clause, 
means a collection of data in a form capable of, and for the purpose of, 
being stored in, processed, and operated on by a computer. The term does 
not include computer software.
    (2) Computer software, as used in this clause, means (i) computer 
programs which are data comprising a series of instructions, rules, 
routines, or statements, regardless of the media in which recorded, that 
allow or cause a computer to perform a specific operation or series of 
operations and (ii) data comprising source code listings, design 
details, algorithms, processes, flow charts, formulae, and related 
material that would enable the computer program to be produced,

[[Page 530]]

created, or compiled. The term does not include computer data bases.
    (3) Data, as used in this clause, means recorded information, 
regardless of form or the media on which it may be recorded. The term 
includes technical data and computer software. The term ``data'' does 
not include data incidental to the administration of this contract, such 
as financial, administrative, cost and pricing, or management 
information.
    (4) Limited rights data, as used in this clause, means data, other 
than computer software, developed at private expense that embody trade 
secrets or are commercial or financial and confidential or privileged. 
The Government's rights to use, duplicate, or disclose limited rights 
data are as set forth in the Limited Rights Notice of subparagraph (e) 
of this clause.
    (5) Restricted computer software, as used in this clause, means 
computer software developed at private expense and that is a trade 
secret; is commercial or financial and is confidential or privileged; or 
is published copyrighted computer software, including minor 
modifications of any such computer software. The Government's rights to 
use, duplicate, or disclose restricted computer software are as set 
forth in the Restricted Rights Notice of paragraph (f) of this clause.
    (6) Technical data, as used in this clause, means recorded data, 
regardless of form or characteristic, that are of a scientific or 
technical nature. Technical data does not include computer software, but 
does include manuals and instructional materials and technical data 
formatted as a computer data base.
    (7) Unlimited rights, as used in this clause, means the right of the 
Government to use, disclose, reproduce, prepare derivative works, 
distribute copies to the public, including by electronic means, and 
perform publicly and display publicly, in any manner, including by 
electronic means, and for any purpose whatsoever, and to have or permit 
others to do so.
    (b) Allocation of Rights. (1) The Government shall have:
    (i) Ownership of all technical data and computer software first 
produced in the performance of this Contract;
    (ii) Unlimited rights in technical data and computer software 
specifically used in the performance of this Contract, except as 
provided herein regarding copyright, limited rights data, or restricted 
computer software, or except for other data specifically protected by 
statute for a period of time or, where, approved by DOE, appropriate 
instances of the DOE Work for Others Program;
    (iii) The right to inspect technical data and computer software 
first produced or specifically used in the performance of this Contract 
at all reasonable times. The Contractor shall make available all 
necessary facilities to allow DOE personnel to perform such inspection;
    (iv) The right to have all technical data and computer software 
first produced or specifically used in the performance of this Contract 
delivered to the Government or otherwise disposed of by the Contractor, 
either as the contracting officer may from time to time direct during 
the progress of the work or in any event as the contracting officer 
shall direct upon completion or termination of this Contract. The 
Contractor agrees to leave a copy of such data at the facility or plant 
to which such data relate, and to make available for access or to 
deliver to the Government such data upon request by the contracting 
officer. If such data are limited rights data or restricted computer 
software, the rights of the Government in such data shall be governed 
solely by the provisions of paragraph (e) of this clause (``Rights in 
Limited Rights Data'') or paragraph (f) of this clause (``Rights in 
Restricted Computer Software''); and
    (v) The right to remove, cancel, correct, or ignore any markings not 
authorized by the terms of this Contract on any data furnished hereunder 
if, in response to a written inquiry by DOE concerning the propriety of 
the markings, the Contractor fails to respond thereto within 60 days or 
fails to substantiate the propriety of the markings. In either case DOE 
will notify the Contractor of the action taken.
    (2) The Contractor shall have:
    (i) The right to withhold limited rights data and restricted 
computer software unless otherwise provided in accordance with the 
provisions of this clause; and
    (ii) The right to use for its private purposes, subject to patent, 
security or other provisions of this Contract, data it first produces in 
the performance of this Contract, except for data in DOE's Uranium 
Enrichment Technology, including diffusion, centrifuge, and atomic vapor 
laser isotope separation, provided the data requirements of this 
Contract have been met as of the date of the private use of such data.
    (3) The Contractor agrees that for limited rights data or restricted 
computer software or other technical, business or financial data in the 
form of recorded information which it receives from, or is given access 
to by, DOE or a third party, including a DOE Contractor or 
subcontractor, and for technical data or computer software it first 
produces under this Contract which is authorized to be marked by DOE, 
the Contractor shall treat such data in accordance with any restrictive 
legend contained thereon.
    (c) Copyrighted Material. (1) The Contractor shall not, without 
prior written authorization of the Patent Counsel, assert copyright in 
any technical data or computer software first produced in the 
performance of this

[[Page 531]]

contract. To the extent such authorization is granted, the Government 
reserves for itself and others acting on its behalf, a nonexclusive, 
paid-up, irrevocable, world-wide license for Governmental purposes to 
publish, distribute, translate, duplicate, exhibit, and perform any such 
data copyrighted by the Contractor.
    (2) The Contractor agrees not to include in the technical data or 
computer software delivered under the contract any material copyrighted 
by the Contractor and not to knowingly include any material copyrighted 
by others without first granting or obtaining at no cost a license 
therein for the benefit of the Government of the same scope as set forth 
in paragraph (c)(1) of this clause. If the Contractor believes that such 
copyrighted material for which the license cannot be obtained must be 
included in the technical data or computer software to be delivered, 
rather than merely incorporated therein by reference, the Contractor 
shall obtain the written authorization of the contracting officer to 
include such material in the technical data or computer software prior 
to its delivery.
    (d) Subcontracting. (1) Unless otherwise directed by the contracting 
officer, the Contractor agrees to use in subcontracts in which technical 
data or computer software is expected to be produced or in subcontracts 
for supplies that contain a requirement for production or delivery of 
data in accordance with the policy and procedures of 48 CFR Subpart 27.4 
as supplemented by 48 CFR 927.401 through 927.409, the clause entitled, 
``Rights in Data-General'' at 48 CFR 52.227-14 modified in accordance 
with 927.409(a) and including Alternate V. Alternates II through IV of 
that clause may be included as appropriate with the prior approval of 
DOE Patent Counsel, and the Contractor shall not acquire rights in a 
subcontractor's limited rights data or restricted computer software, 
except through the use of Alternates II or III, respectively, without 
the prior approval of DOE Patent Counsel. The clause at 48 CFR 52.227-
16, Additional Data Requirements, shall be included in subcontracts in 
accordance with DEAR 927.409(h). The contractor shall use instead the 
Rights in Data-Facilities clause at 48 CFR 970.5227-1 in subcontracts, 
including subcontracts for related support services, involving the 
design or operation of any plants or facilities or specially designed 
equipment for such plants or facilities that are managed or operated 
under its contract with DOE.
    (2) It is the responsibility of the Contractor to obtain from its 
subcontractors technical data and computer software and rights therein, 
on behalf of the Government, necessary to fulfill the Contractor's 
obligations to the Government with respect to such data. In the event of 
refusal by a subcontractor to accept a clause affording the Government 
such rights, the Contractor shall:
    (i) Promptly submit written notice to the contracting officer 
setting forth reasons or the subcontractor's refusal and other pertinent 
information which may expedite disposition of the matter, and
    (ii) Not proceed with the subcontract without the written 
authorization of the contracting officer.
    (3) Neither the Contractor nor higher-tier subcontractors shall use 
their power to award subcontracts as economic leverage to acquire rights 
in a subcontractor's limited rights data or restricted computer software 
for their private use.
    (e) Rights in Limited Rights Data. Except as may be otherwise 
specified in this Contract as data which are not subject to this 
paragraph, the Contractor agrees to and does hereby grant to the 
Government an irrevocable, nonexclusive, paid-up license by or for the 
Government, in any limited rights data of the Contractor specifically 
used in the performance of this Contract, provided, however, that to the 
extent that any limited rights data when furnished or delivered is 
specifically identified by the Contractor at the time of initial 
delivery to the Government or a representative of the Government, such 
data shall not be used within or outside the Government except as 
provided in the ``Limited Rights Notice'' set forth. All such limited 
rights data shall be marked with the following ``Limited Rights 
Notice'':

                          Limited Rights Notice

    These data contain ``limited rights data,'' furnished under Contract 
No. ---------------- with the United States Department of Energy which 
may be duplicated and used by the Government with the express 
limitations that the ``limited rights data'' may not be disclosed 
outside the Government or be used for purposes of manufacture without 
prior permission of the Contractor, except that further disclosure or 
use may be made solely for the following purposes:
    (a) Use (except for manufacture) by support services contractors 
within the scope of their contracts;
    (b) This ``limited rights data'' may be disclosed for evaluation 
purposes under the restriction that the ``limited rights data'' be 
retained in confidence and not be further disclosed;
    (c) This ``limited rights data'' may be disclosed to other 
contractors participating in the Government's program of which this 
Contract is a part for information or use (except for manufacture) in 
connection with the work performed under their contracts and under the 
restriction that the ``limited rights data'' be retained in confidence 
and not be further disclosed;
    (d) This ``limited rights data'' may be used by the Government or 
others on its behalf

[[Page 532]]

for emergency repair or overhaul work under the restriction that the 
``limited rights data'' be retained in confidence and not be further 
disclosed; and
    (e) Release to a foreign government, or instrumentality thereof, as 
the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work by 
such government. This Notice shall be marked on any reproduction of this 
data in whole or in part.

                             (End of notice)

    (f) Rights in restricted computer software. (1) Except as may be 
otherwise specified in this Contract as data which are not subject to 
this paragraph, the Contractor agrees to and does hereby grant to the 
Government an irrevocable, nonexclusive, paid-up, license by or for the 
Government, in any restricted computer software of the Contractor 
specifically used in the performance of this Contract, provided, 
however, that to the extent that any restricted computer software when 
furnished or delivered is specifically identified by the Contractor at 
the time of initial delivery to the Government or a representative of 
the Government, such data shall not be used within or outside the 
Government except as provided in the ``Restricted Rights Notice'' set 
forth below. All such restricted computer software shall be marked with 
the following ``Restricted Rights Notice'':

                   Restricted Rights Notice-Long Form

    (a) This computer software is submitted with restricted rights under 
Department of Energy Contract No. --------------. It may not be used, 
reproduced, or disclosed by the Government except as provided in 
paragraph (b) of this notice.
    (b) This computer software may be:
    (1) Used or copied for use in or with the computer or computers for 
which it was acquired, including use at any Government installation to 
which such computer or computers may be transferred;
    (2) Used, copied for use, in a backup or replacement computer if any 
computer for which it was acquired is inoperative or is replaced;
    (3) Reproduced for safekeeping (archives) or backup purposes;
    (4) Modified, adapted, or combined with other computer software, 
provided that only the portions of the derivative software consisting of 
the restricted computer software are to be made subject to the same 
restricted rights; and
    (5) Disclosed to and reproduced for use by contractors under a 
service contract (of the type defined in 48 CFR 37.101) in accordance 
with subparagraphs (b)(1) through (4) of this Notice, provided the 
Government makes such disclosure or reproduction subject to these 
restricted rights.
    (c) Notwithstanding the foregoing, if this computer software has 
been published under copyright, it is licensed to the Government, 
without disclosure prohibitions, with the rights set forth in the 
restricted rights notice above.
    (d) This Notice shall be marked on any reproduction of this computer 
software, in whole or in part.

                             (End of notice)

    (2) Where it is impractical to include the Restricted Rights Notice 
on restricted computer software, the following short-form Notice may be 
used.

                  Restricted Rights Notice--Short Form

    Use, reproduction, or disclosure is subject to restrictions set 
forth in the Long Form Notice of DOE Contract No. -------------- with 
(name of Contractor).

                             (End of notice)

    (3) If the software is embedded, or if it is commercially 
impractical to mark it with human readable text, then the symbol R and 
the clause date (mo/yr), in brackets or a box, a [R-mo/yr], may be used. 
This will be read to mean restricted computer software, subject to the 
rights of the Government as described in the Long Form Notice, in effect 
as of the date indicated next to the symbol. The symbol shall not be 
used to mark human readable material. In the event this Contract 
contains any variation to the rights in the Long Form Notice, then the 
contract number must also be cited.
    (4) If restricted computer software is delivered with the copyright 
notice of 17 U.S.C. 401, the software will be presumed to be published 
copyrighted computer software licensed to the Government without 
disclosure prohibitions and with unlimited rights, unless the Contractor 
includes the following statement with such copyright notice 
``Unpublished-rights reserved under the Copyright Laws of the United 
States.''
    (g) Relationship to patents. Nothing contained in this clause 
creates or is intended to imply a license to the Government in any 
patent or is intended to be construed as affecting the scope of any 
licenses or other rights otherwise granted to the Government under any 
patent.

                             (End of clause)

    Alternate I (DEC 2000). As prescribed in 48 CFR 970.2704-3(a), where 
access to Category C-24 restricted data is contemplated in the 
performance of a contract the contracting officer shall insert the 
phrase ``and except Restricted Data in category C-24, 10 CFR part 725, 
in which DOE has reserved the right to

[[Page 533]]

receive reasonable compensation for the use of its inventions and 
discoveries, including related data and technology'' after ``laser 
isotope separation'' and before the comma in paragraph (b)(2)(ii) of the 
clause at 48 CFR 970.5227-1, Rights in Data--Facilities, as appropriate.

                             (End of clause)



Sec. 970.5227-2  Rights in data-technology transfer.

    As prescribed in 48 CFR 970.2704-3(b), insert the following clause:

             Rights in Data--Technology Transfer (DEC 2000)

    (a) Definitions. (1) Computer data bases, as used in this clause, 
means a collection of data in a form capable of, and for the purpose of, 
being stored in, processed, and operated on by a computer. The term does 
not include computer software.
    (2) Computer software, as used in this clause, means (i) computer 
programs which are data comprising a series of instructions, rules, 
routines, or statements, regardless of the media in which recorded, that 
allow or cause a computer to perform a specific operation or series of 
operations and (ii) data comprising source code listings, design 
details, algorithms, processes, flow charts, formulae, and related 
material that would enable the computer program to be produced, created, 
or compiled. The term does not include computer data bases.
    (3) Data, as used in this clause, means recorded information, 
regardless of form or the media on which it may be recorded. The term 
includes technical data and computer software. The term ``data'' does 
not include data incidental to the administration of this contract, such 
as financial, administrative, cost and pricing, or management 
information.
    (4) Limited rights data, as used in this clause, means data, other 
than computer software, developed at private expense that embody trade 
secrets or are commercial or financial and confidential or privileged. 
The Government's rights to use, duplicate, or disclose limited rights 
data are as set forth in the Limited Rights Notice of paragraph (g) of 
this clause.
    (5) Restricted computer software, as used in this clause, means 
computer software developed at private expense and that is a trade 
secret; is commercial or financial and is confidential or privileged; or 
is published copyrighted computer software, including minor 
modifications of any such computer software. The Government's rights to 
use, duplicate, or disclose restricted computer software are as set 
forth in the Restricted Rights Notice of subparagraph (h) of this 
clause.
    (6) Technical data, as used in this clause, means recorded data, 
regardless of form or characteristic, that are of a scientific or 
technical nature. Technical data does not include computer software, but 
does include manuals and instructional materials and technical data 
formatted as a computer data base.
    (7) Unlimited rights, as used in this clause, means the rights of 
the Government to use, disclose, reproduce, prepare derivative works, 
distribute copies to the public, including by electronic means, and 
perform publicly and display publicly, in any manner, including by 
electronic means, and for any purpose whatsoever, and to have or permit 
others to do so.
    (b) Allocation of Rights. (1) The Government shall have:
    (i) Ownership of all technical data and computer software first 
produced in the performance of this Contract;
    (ii) Unlimited rights in technical data and computer software 
specifically used in the performance of this Contract, except as 
provided herein regarding copyright, limited rights data, or restricted 
computer software, and except for data subject to the withholding 
provisions for protected Cooperative Research and Development Agreement 
(CRADA) information in accordance with Technology Transfer actions under 
this Contract, or other data specifically protected by statute for a 
period of time or, where, approved by DOE, appropriate instances of the 
DOE Work for Others Program;
    (iii) The right to inspect technical data and computer software 
first produced or specifically used in the performance of this Contract 
at all reasonable times. The Contractor shall make available all 
necessary facilities to allow DOE personnel to perform such inspection;
    (iv) The right to have all technical data and computer software 
first produced or specifically used in the performance of this Contract 
delivered to the Government or otherwise disposed of by the Contractor, 
either as the contracting officer may from time to time direct during 
the progress of the work or in any event as the contracting officer 
shall direct upon completion or termination of this Contract. The 
Contractor agrees to leave a copy of such data at the facility or plant 
to which such data relate, and to make available for access or to 
deliver to the Government such data upon request by the contracting 
officer. If such data are limited rights data or restricted computer 
software. the rights of the Government in such data shall be governed 
solely by the provisions of paragraph (g) of this clause (``Rights in 
Limited Rights Data'') or paragraph (h) of this clause (``Rights in 
Restricted Computer Software''); and (v) The right to remove, cancel,

[[Page 534]]

correct, or ignore any markings not authorized by the terms of this 
Contract on any data furnished hereunder if, in response to a written 
inquiry by DOE concerning the propriety of the markings, the Contractor 
fails to respond thereto within 60 days or fails to substantiate the 
propriety of the markings. In either case DOE will notify the Contractor 
of the action taken.
    (2) The Contractor shall have:
    (i) The right to withhold limited rights data and restricted 
computer software unless otherwise provided in provisions of this 
clause;
    (ii) The right to use for its private purposes, subject to patent, 
security or other provisions of this Contract, data it first produces in 
the performance of this Contract, except for data in DOE's Uranium 
Enrichment Technology, including diffusion, centrifuge, and atomic vapor 
laser isotope separation, provided the data requirements of this 
Contract have been met as of the date of the private use of such data; 
and
    (iii) The right to assert copyright subsisting in scientific and 
technical articles as provided in paragraph (d) of this clause and the 
right to request permission to assert copyright subsisting in works 
other than scientific and technical articles as provided in paragraph 
(e) of this clause.
    (3) The Contractor agrees that for limited rights data or restricted 
computer software or other technical business or financial data in the 
form of recorded information which it receives from, or is given access 
to by DOE or a third party, including a DOE contractor or subcontractor, 
and for technical data or computer software it first produces under this 
Contract which is authorized to be marked by DOE, the Contractor shall 
treat such data in accordance with any restrictive legend contained 
thereon.
    (c) Copyright (General). (1) The Contractor agrees not to mark, 
register, or otherwise assert copyright in any data in a published or 
unpublished work, other than as set forth in paragraphs (d) and (e) of 
this clause.
    (2) Except for material to which the Contractor has obtained the 
right to assert copyright in accordance with either paragraph (d) or (e) 
of this clause, the Contractor agrees not to include in the data 
delivered under this Contract any material copyrighted by the Contractor 
and not to knowingly include any material copyrighted by others without 
first granting or obtaining at no cost a license therein for the benefit 
of the Government of the same scope as set forth in paragraph (d) of 
this clause. If the Contractor believes that such copyrighted material 
for which the license cannot be obtained must be included in the data to 
be delivered, rather than merely incorporated therein by reference, the 
Contractor shall obtain the written authorization of the contracting 
officer to include such material in the data prior to its delivery.
    (d) Copyrighted works (scientific and technical articles). (1) The 
Contractor shall have the right to assert, without prior approval of the 
contracting officer, copyright subsisting in scientific and technical 
articles composed under this contract or based on or containing data 
first produced in the performance of this Contract, and published in 
academic, technical or professional journals, symposia, proceedings, or 
similar works. When assertion of copyright is made, the Contractor shall 
affix the applicable copyright notice of 17 U.S.C. 401 or 402 and 
acknowledgment of Government sponsorship (including contract number) on 
the data when such data are delivered to the Government as well as when 
the data are published or deposited for registration as a published work 
in the U.S. Copyright Office. The Contractor grants to the Government, 
and others acting on its behalf, a nonexclusive, paid-up, irrevocable, 
world-wide license in such copyrighted data to reproduce, prepare 
derivative works, distribute copies to the public, and perform publicly 
and display publicly, by or on behalf of the Government.
    (2) The contractor shall mark each scientific or technical article 
first produced or composed under this Contract and submitted for journal 
publication or similar means of dissemination with a notice, similar in 
all material respects to the following, on the front reflecting the 
Government's non-exclusive, paid-up, irrevocable, world-wide license in 
the copyright.
    Notice: This manuscript has been authored by [insert the name of the 
Contractor] under Contract No. [insert the contract number] with the 
U.S. Department of Energy. The United States Government retains and the 
publisher, by accepting the article for publication, acknowledges that 
the United States Government retains a non-exclusive, paid-up, 
irrevocable, world-wide license to publish or reproduce the published 
form of this manuscript, or allow others to do so, for United States 
Government purposes.

                             (End of notice)

    (3) The title to the copyright of the original of unclassified 
graduate theses and the original of related unclassified scientific 
papers shall vest in the author thereof, subject to the right of DOE to 
retain duplicates of such documents and to use such documents for any 
purpose whatsoever without any claim on the part of the author or the 
contractor for additional compensation.
    (e) Copyrighted works (other than scientific and technical articles 
and data produced under a CRADA). The Contractor may obtain permission 
to assert copyright subsisting in technical data and computer software 
first produced by the Contractor in performance of this Contract, where 
the Contractor can

[[Page 535]]

show that commercialization would be enhanced by such copyright 
protection, subject to the following:
    (1) Contractor Request to Assert Copyright.
    (i) For data other than scientific and technical articles and data 
produced under a CRADA, the Contractor shall submit in writing to Patent 
Counsel its request to assert copyright in data first produced in the 
performance of this Contract pursuant to this clause. The right of the 
Contractor to copyright data first produced under a CRADA is as 
described in the individual CRADA. Each request by the Contractor must 
include:
    (A) The identity of the data (including any computer program) for 
which the Contractor requests permission to assert copyright, as well as 
an abstract which is descriptive of the data and is suitable for 
dissemination purposes, (B) The program under which it was funded, (C) 
Whether, to the best knowledge of the Contractor, the data is subject to 
an international treaty or agreement, (D) Whether the data is subject to 
export control, (E) A statement that the Contractor plans to 
commercialize the data in compliance with the clause of this contract 
entitled, ``Technology Transfer Mission,'' within five (5) years after 
obtaining permission to assert copyright or, on a case-by-case basis, a 
specified longer period where the Contractor can demonstrate that the 
ability to commercialize effectively is dependent upon such longer 
period, and (F) For data other than computer software, a statement 
explaining why the assertion of copyright is necessary to enhance 
commercialization and is consistent with DOE's dissemination 
responsibilities.
    (ii) For data that is developed using other funding sources in 
addition to DOE funding, the permission to assert copyright in 
accordance with this clause must also be obtained by the Contractor from 
all other funding sources prior to the Contractor's request to Patent 
Counsel. The request shall include the Contractor's certification or 
other documentation acceptable to Patent Counsel demonstrating such 
permission has been obtained.
    (iii) Permission for the Contractor to assert copyright in excepted 
categories of data as determined by DOE will be expressly withheld. Such 
excepted categories include data whose release (A) would be detrimental 
to national security, i.e., involve classified information or data or 
sensitive information under Section 148 of the Atomic Energy Act of 
1954, as amended, or are subject to export control for nonproliferation 
and other nuclear-related national security purposes, (B) would not 
enhance the appropriate transfer or dissemination and commercialization 
of such data, (C) would have a negative impact on U.S. industrial 
competitiveness, (D) would prevent DOE from meeting its obligations 
under treaties and international agreements, or (E) would be detrimental 
to one or more of DOE's programs. Additional excepted categories may be 
added by the Assistant General Counsel for Technology Transfer and 
Intellectual Property. Where data are determined to be under export 
control restriction, the Contractor may obtain permission to assert 
copyright subject to the provisions of this clause for purposes of 
limited commercialization in a manner that complies with export control 
statutes and applicable regulations. In addition, notwithstanding any 
other provision of this Contract, all data developed with Naval 
Reactors' funding and those data that are classified fall within 
excepted categories. The rights of the Contractor in data are subject to 
the disposition of data rights in the treaties and international 
agreements identified under this Contract as well as those additional 
treaties and international agreements which DOE may from time to time 
identify by unilateral amendment to the Contract; such amendment listing 
added treaties and international agreements is effective only for data 
which is developed after the date such treaty or international agreement 
is added to this Contract. Also, the Contractor will not be permitted to 
assert copyright in data in the form of various technical reports 
generated by the Contractor under the Contract without first obtaining 
the advanced written permission of the contracting officer.
    (2) DOE Review and Response to Contractor's Request. The Patent 
Counsel shall use its best efforts to respond in writing within 90 days 
of receipt of a complete request by the Contractor to assert copyright 
in technical data and computer software pursuant to this clause. Such 
response shall either give or withhold DOE's permission for the 
Contractor to assert copyright or advise the Contractor that DOE needs 
additional time to respond, and the reasons therefor.
    (3) Permission for Contractor to Assert Copyright.
    (i) For computer software, the Contractor shall furnish to the DOE 
designated, centralized software distribution and control point, the 
Energy Science and Technology Software Center, at the time permission to 
assert copyright is given under paragraph (e)(2) of this clause: (A) An 
abstract describing the software suitable for publication, (B) the 
source code for each software program, and (C) the object code and at 
least the minimum support documentation needed by a technically 
competent user to understand and use the software. The Patent Counsel, 
for good cause shown by the Contractor, may allow the minimum support 
documentation to be delivered within 60 days after permission to assert 
copyright is given or at such time the minimum support documentation

[[Page 536]]

becomes available. The Contractor acknowledges that the DOE designated 
software distribution and control point may provide a technical 
description of the software in an announcement identifying its 
availability from the copyright holder.
    (ii) Unless otherwise directed by the contracting officer, for data 
other than computer software to which the Contractor has received 
permission to assert copyright under paragraph (e)(2) of this clause 
above, the Contractor shall within sixty (60) days of obtaining such 
permission furnish to DOE's Office of Scientific and Technical 
Information (OSTI) a copy of such data as well as an abstract of the 
data suitable for dissemination purposes. The Contractor acknowledges 
that OSTI may provide an abstract of the data in an announcement to DOE, 
its contractors and to the public identifying its availability from the 
copyright holder.
    (iii) For a five year period or such other specified period as 
specifically approved by Patent Counsel beginning on the date the 
Contractor is given permission to assert copyright in data, the 
Contractor grants to the Government, and others acting on its behalf, a 
paid-up, nonexclusive, irrevocable worldwide license in such copyrighted 
data to reproduce, prepare derivative works and perform publicly and 
display publicly, by or on behalf of the Government. Upon request, the 
initial period may be extended after DOE approval. The DOE approval will 
be based on the standard that the work is still commercially available 
and the market demand is being met.
    (iv) After the period approved by Patent Counsel for application of 
the limited Government license described in paragraph (e)(3)(iii) of 
this clause, or if, prior to the end of such period(s), the Contractor 
abandons commercialization activities pertaining to the data to which 
the Contractor has been given permission to assert copyright, the 
Contractor grants to the Government, and others acting on its behalf, a 
paid-up, nonexclusive, irrevocable worldwide license in such copyrighted 
data to reproduce, distribute copies to the public, prepare derivative 
works, perform publicly and display publicly, and to permit others to do 
so.
    (v) Whenever the Contractor asserts copyright in data pursuant to 
this paragraph (e), the Contractor shall affix the applicable copyright 
notice of 17 U.S.C. 401 or 402 on the copyrighted data and also an 
acknowledgment of the Government sponsorship and license rights of 
paragraphs (e)(3) (iii) and (iv) of this clause. Such action shall be 
taken when the data are delivered to the Government, published, licensed 
or deposited for registration as a published work in the U.S. Copyright 
Office. The acknowledgment of Government sponsorship and license rights 
shall be as follows: Notice: These data were produced by (insert name of 
Contractor) under Contract No. -------------- with the Department of 
Energy. For (period approved by DOE Patent Counsel) from (date 
permission to assert copyright was obtained), the Government is granted 
for itself and others acting on its behalf a nonexclusive, paid-up, 
irrevocable worldwide license in this data to reproduce, prepare 
derivative works, and perform publicly and display publicly, by or on 
behalf of the Government. There is provision for the possible extension 
of the term of this license. Subsequent to that period or any extension 
granted, the Government is granted for itself and others acting on its 
behalf a nonexclusive, paid-up, irrevocable worldwide license in this 
data to reproduce, prepare derivative works, distribute copies to the 
public, perform publicly and display publicly, and to permit others to 
do so. The specific term of the license can be identified by inquiry 
made to Contractor or DOE. Neither the United States nor the United 
States Department of Energy, nor any of their employees, makes any 
warranty, express or implied, or assumes any legal liability or 
responsibility for the accuracy, completeness, or usefulness of any data 
, apparatus, product, or process disclosed, or represents that its use 
would not infringe privately owned rights.

                             (End of notice)

    (vi) With respect to any data to which the Contractor has received 
permission to assert copyright, the DOE has the right, during the five 
(5) year or specified longer period approved by Patent Counsel as 
provided for in paragraph (e) of this clause, to request the Contractor 
to grant a nonexclusive, partially exclusive or exclusive license in any 
field of use to a responsible applicant(s) upon terms that are 
reasonable under the circumstances, and if the Contractor refuses such 
request, to grant such license itself, if the DOE determines that the 
Contractor has not made a satisfactory demonstration that either it or 
its licensee(s) is actively pursuing commercialization of the data as 
set forth in subparagraph (e)(1)(A) of this clause. Before licensing 
under this subparagraph (vi), DOE shall furnish the Contractor a written 
request for the Contractor to grant the stated license, and the 
Contractor shall be allowed thirty (30) days (or such longer period as 
may be authorized by the contracting officer for good cause shown in 
writing by the Contractor) after such notice to show cause why the 
license should not be granted. The Contractor shall have the right to 
appeal the decision of the DOE to grant the stated license to the 
Invention Licensing Appeal Board as set forth in 10 CFR 781.65--
''Appeals.''
    (vii) No costs shall be allowable for maintenance of copyrighted 
data, primarily for the benefit of the Contractor and/or a licensee 
which exceeds DOE Program needs,

[[Page 537]]

except as expressly provided in writing by the contracting officer. The 
Contractor may use its net royalty income to effect such maintenance 
costs.
    (viii) At any time the Contractor abandons commercialization 
activities for data for which the Contractor has received permission to 
assert copyright in accordance with this clause, it shall advise OSTI 
and Patent Counsel and upon request assign the copyright to the 
Government so that the Government can distribute the data to the public.
    (4) The following notice may be placed on computer software prior to 
any publication and prior to the Contractor's obtaining permission from 
the Department of Energy to assert copyright in the computer software 
pursuant to paragraph (c)(3) of this section.
    Notice: This computer software was prepared by [insert the 
Contractor's name and the individual author], hereinafter the 
Contractor, under Contract [insert the Contract Number] with the 
Department of Energy (DOE). All rights in the computer software are 
reserved by DOE on behalf of the United States Government and the 
Contractor as provided in the Contract. You are authorized to use this 
computer software for Governmental purposes but it is not to be released 
or distributed to the public. NEITHER THE GOVERNMENT NOR THE CONTRACTOR 
MAKES ANY WARRANTY, EXPRESS OR IMPLIED, OR ASSUMES ANY LIABILITY FOR THE 
USE OF THIS SOFTWARE. This notice including this sentence must appear on 
any copies of this computer software.

                             (End of notice)

    (5) a similar notice can be used for data, other than computer 
software, upon approval of DOE Patent Counsel.
    (f) Subcontracting. (1) Unless otherwise directed by the contracting 
officer, the Contractor agrees to use in subcontracts in which technical 
data or computer software is expected to be produced or in subcontracts 
for supplies that contain a requirement for production or delivery of 
data in accordance with the policy and procedures of 48 CFR Subpart 27.4 
as supplemented by 48 CFR 927.401 through 927.409, the clause entitled, 
``Rights in Data-General'' at 48 CFR 52.227-14 modified in accordance 
with 927.409(a) and including Alternate V. Alternates II through IV of 
that clause may be included as appropriate with the prior approval of 
DOE Patent Counsel, and the Contractor shall not acquire rights in a 
subcontractor's limited rights data or restricted computer software, 
except through the use of Alternates II or III, respectively, without 
the prior approval of DOE Patent Counsel. The clause at 48 CFR 52.227-
16, Additional Data Requirements, shall be included in subcontracts in 
accordance with 48 CFR 927.409(h). The Contractor shall use instead the 
Rights in Data-Facilities clause at 48 CFR 970.5227-1 in subcontracts, 
including subcontracts for related support services, involving the 
design or operation of any plants or facilities or specially designed 
equipment for such plants or facilities that are managed or operated 
under its contract with DOE.
    (2) It is the responsibility of the Contractor to obtain from its 
subcontractors technical data and computer software and rights therein, 
on behalf of the Government, necessary to fulfill the Contractor's 
obligations to the Government with respect to such data. In the event of 
refusal by a subcontractor to accept a clause affording the Government 
such rights, the Contractor shall:
    (i) Promptly submit written notice to the contracting officer 
setting forth reasons or the subcontractor's refusal and other pertinent 
information which may expedite disposition of the matter, and
    (ii) Not proceed with the subcontract without the written 
authorization of the contracting officer.
    (3) Neither the Contractor nor higher-tier subcontractors shall use 
their power to award subcontracts as economic leverage to acquire rights 
in a subcontractor's limited rights data and restricted computer 
software for their private use.
    (g) Rights in Limited Rights Data. Except as may be otherwise 
specified in this Contract as data which are not subject to this 
paragraph, the Contractor agrees to and does hereby grant to the 
Government an irrevocable nonexclusive, paid-up license by or for the 
Government, in any limited rights data of the Contractor specifically 
used in the performance of this Contract, provided, however, that to the 
extent that any limited rights data when furnished or delivered is 
specifically identified by the Contractor at the time of initial 
delivery to the Government or a representative of the Government, such 
data shall not be used within or outside the Government except as 
provided in the ``Limited Rights Notice'' set forth below. All such 
limited rights data shall be marked with the following ``Limited Rights 
Notice:''

                          Limited Rights Notice

    These data contain ``limited rights data,'' furnished under Contract 
No. -------------- with the United States Department of Energy which may 
be duplicated and used by the Government with the express limitations 
that the ``limited rights data'' may not be disclosed outside the 
Government or be used for purposes of manufacture without prior 
permission of the Contractor, except that further disclosure or use may 
be made solely for the following purposes:
    (a) Use (except for manufacture) by support services contractors 
within the scope of their contracts;

[[Page 538]]

    (b) This ``limited rights data'' may be disclosed for evaluation 
purposes under the restriction that the ``limited rights data'' be 
retained in confidence and not be further disclosed;
    (c) This ``limited rights data'' may be disclosed to other 
contractors participating in the Government's program of which this 
Contract is a part for information or use (except for manufacture) in 
connection with the work performed under their contracts and under the 
restriction that the ``limited rights data'' be retained in confidence 
and not be further disclosed;
    (d) This ``limited rights data'' may be used by the Government or 
others on its behalf for emergency repair or overhaul work under the 
restriction that the ``limited rights data'' be retained in confidence 
and not be further disclosed; and
    (e) Release to a foreign government, or instrumentality thereof, as 
the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work by 
such government.
    This Notice shall be marked on any reproduction of this data in 
whole or in part.

                             (End of notice)

    (h) Rights in restricted computer software. (1) Except as may be 
otherwise specified in this Contract as data which are not subject to 
this paragraph, the Contractor agrees to and does hereby grant to the 
Government an irrevocable, nonexclusive, paid-up, license by or for the 
Government, in any restricted computer software of the Contractor 
specifically used in the performance of this Contract; provided, 
however, that to the extent that any restricted computer software when 
furnished or delivered is specifically identified by the Contractor at 
the time of initial delivery to the Government or a representative of 
the Government, such data shall not be used within or outside the 
Government except as provided in the ``Restricted Rights Notice'' set 
forth below. All such restricted computer software shall be marked with 
the following ``Restricted Rights Notice:''

                   Restricted Rights Notice--Long Form

    (a) This computer software is submitted with restricted rights under 
Department of Energy Contract No. ------. It may not be used, 
reproduced, or disclosed by the Government except as provided in 
paragraph (b) of this notice.
    (b) This computer software may be:
    (1) Used or copied for use in or with the computer or computers for 
which it was acquired, including use at any Government installation to 
which such computer or computers may be transferred;
    (2) Used, copied for use, in a backup or replacement computer if any 
computer for which it was acquired is inoperative or is replaced;
    (3) Reproduced for safekeeping (archives) or backup purposes;
    (4) Modified, adapted, or combined with other computer software, 
provided that only the portions of the derivative software consisting of 
the restricted computer software are to be made subject to the same 
restricted rights; and
    (5) Disclosed to and reproduced for use by contractors under a 
service contract (of the type defined in 48 CFR 37.101) in accordance 
with subparagraphs (b)(1) through (4) of this Notice, provided the 
Government makes such disclosure or reproduction subject to these 
restricted rights.
    (c) Notwithstanding the foregoing, if this computer software has 
been published under copyright, it is licensed to the Government, 
without disclosure prohibitions, with the rights set forth in the 
restricted rights notice above.
    (d) This Notice shall be marked on any reproduction of this computer 
software, in whole or in part.

                             (End of notice)

    (2) Where it is impractical to include the Restricted Rights Notice 
on restricted computer software, the following short-form Notice may be 
used in lieu thereof:

                  Restricted Rights Notice--Short Form

    Use, reproduction, or disclosure is subject to restrictions set 
forth in the Long Form Notice of DOE Contract No. ------ with (name of 
Contractor).

                             (End of notice)

    (3) If the software is embedded, or if it is commercially 
impractical to mark it with human readable text, then the symbol R and 
the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may be used. 
This will be read to mean restricted computer software, subject to the 
rights of the Government as described in the Long Form Notice, in effect 
as of the date indicated next to the symbol. The symbol shall not be 
used to mark human readable material. In the event this Contract 
contains any variation to the rights in the Long Form Notice, then the 
contract number must also be cited.
    (4) If restricted computer software is delivered with the copyright 
notice of 17 U.S.C. 401, the software will be presumed to be published 
copyrighted computer software licensed to the Government without 
disclosure prohibitions and with unlimited rights, unless the Contractor 
includes the following statement with such copyright notice 
``Unpublished-rights reserved under the Copyright Laws of the United 
States.''
    (i) Relationship to patents. Nothing contained in this clause 
creates or is intended to

[[Page 539]]

imply a license to the Government in any patent or is intended to be 
construed as affecting the scope of any licenses or other rights 
otherwise granted to the Government under any patent.

                             (End of clause)

    Alternate I (DEC 2000). As prescribed in 48 CFR 970.2704-3(b), where 
access to Category C-24 restricted data is contemplated in the 
performance of a contract the contracting officer shall insert the 
phrase ``and except Restricted Data in category C-24, 10 CFR part 725, 
in which DOE has reserved the right to receive reasonable compensation 
for the use of its inventions and discoveries, including related data 
and technology'' after ``laser isotope separation'' and before the comma 
in paragraph (b)(2)(ii) of the clause at 48 CFR 970.5227-2, Rights in 
Data--Technology Transfer, as appropriate.

                             (End of clause)



Sec. 970.5227-3  Technology transfer mission.

    As prescribed in 48 CFR 970.2770-4(a), insert the following clause:

                 Technology Transfer Mission (AUG 2002)

    This clause has as its purpose implementation of the National 
Competitiveness Technology Transfer Act of 1989 (Sections 3131, 3132, 
3133, and 3157 of Pub. L. 101-189 and as amended by Pub. L. 103-160, 
Sections 3134 and 3160). The Contractor shall conduct technology 
transfer activities with a purpose of providing benefit from Federal 
research to U.S. industrial competitiveness.
    (a) Authority. (1) In order to ensure the full use of the results of 
research and development efforts of, and the capabilities of, the 
Laboratory, technology transfer, including Cooperative Research and 
Development Agreements (CRADAs), is established as a mission of the 
Laboratory consistent with the policy, principles and purposes of 
Sections 11(a)(1) and 12(g) of the Stevenson-Wydler Technology 
Innovation Act of 1980, as amended (15 U.S.C. 3710a); Section 3132(b) of 
Pub. L. 101-189, Sections 3134 and 3160 of Pub. L. 103-160, and of 
Chapter 38 of the Patent Laws (35 U.S.C. 200 et seq.); Section 152 of 
the Atomic Energy Act of 1954, as amended (42 U.S.C. 2182); Section 9 of 
the Federal Nonnuclear Energy Research and Development Act of 1974 (42 
U.S.C. 5908); and Executive Order 12591 of April 10, 1987.
    (2) In pursuing the technology transfer mission, the Contractor is 
authorized to conduct activities including but not limited to: 
identifying and protecting Intellectual Property made, created or 
acquired at or by the Laboratory; negotiating licensing agreements and 
assignments for Intellectual Property made, created or acquired at or by 
the Laboratory that the Contractor controls or owns; bailments; 
negotiating all aspects of and entering into CRADAs; providing technical 
consulting and personnel exchanges; conducting science education 
activities and reimbursable Work for Others (WFO); providing information 
exchanges; and making available laboratory or weapon production user 
facilities. It is fully expected that the Contractor shall use all of 
the mechanisms available to it to accomplish this technology transfer 
mission, including, but not limited to, CRADAs, user facilities, WFO, 
science education activities, consulting, personnel, assignments, and 
licensing in accordance with this clause.
    (b) Definitions. (1) Contractor's Laboratory Director means the 
individual who has supervision over all or substantially all of the 
Contractor's operations at the Laboratory.
    (2) Intellectual Property means patents, trademarks, copyrights, 
mask works, protected CRADA information, and other forms of comparable 
property rights protected by Federal Law and other foreign counterparts.
    (3) Cooperative Research and Development Agreement (CRADA) means any 
agreement entered into between the Contractor as operator of the 
Laboratory, and one or more parties including at least one non-Federal 
party under which the Government, through its laboratory, provides 
personnel, services, facilities, equipment, intellectual property, or 
other resources with or without reimbursement (but not funds to non-
Federal parties) and the non-Federal parties provide funds, personnel, 
services, facilities, equipment, intellectual property, or other 
resources toward the conduct of specified research or development 
efforts which are consistent with the missions of the Laboratory; except 
that such term does not include a procurement contract, grant, or 
cooperative agreement as those terms are used in sections 6303, 6304, 
and 6305 of Title 31 of the United States Code.
    (4) Joint Work Statement (JWS) means a proposal for a CRADA prepared 
by the Contractor, signed by the Contractor's Laboratory Director or 
designee which describes the following:
    (i) Purpose;
    (ii) Scope of Work which delineates the rights and responsibilities 
of the Government, the Contractor and Third Parties, one of which must 
be a non-Federal party;
    (iii) Schedule for the work; and
    (iv) Cost and resource contributions of the parties associated with 
the work and the schedule.
    (5) Assignment means any agreement by which the Contractor transfers 
ownership of

[[Page 540]]

Laboratory Intellectual Property, subject to the Government's retained 
rights.
    (6) Laboratory Biological Materials means biological materials 
capable of replication or reproduction, such as plasmids, 
deoxyribonucleic acid molecules, ribonucleic acid molecules, living 
organisms of any sort and their progeny, including viruses, prokaryote 
and eukaryote cell lines, transgenic plants and animals, and any 
derivatives or modifications thereof or products produced through their 
use or associated biological products, made under this contract by 
Laboratory employees or through the use of Laboratory research 
facilities.
    (7) Laboratory Tangible Research Product means tangible material 
results of research which
    (i) are provided to permit replication, reproduction, evaluation or 
confirmation of the research effort, or to evaluate its potential 
commercial utility;
    (ii) are not materials generally commercially available; and
    (iii) were made under this contract by Laboratory employees or 
through the use of Laboratory research facilities.
    (8) Bailment means any agreement in which the Contractor permits the 
commercial or non-commercial transfer of custody, access or use of 
Laboratory Biological Materials or Laboratory Tangible Research Product 
for a specified purpose of technology transfer or research and 
development, including without limitation evaluation, and without 
transferring ownership to the bailee.
    (c) Allowable costs. (1) The Contractor shall establish and carry 
out its technology transfer efforts through appropriate organizational 
elements consistent with the requirements for an Office of Research and 
Technology Applications (ORTA) pursuant to paragraphs (b) and (c) of 
Section 11 of the Stevenson-Wydler Technology Innovation Act of 1980, as 
amended (15 U.S.C. 3710). The costs associated with the conduct of 
technology transfer through the ORTA including activities associated 
with obtaining, maintaining, licensing, and assigning Intellectual 
Property rights, increasing the potential for the transfer of 
technology, and the widespread notice of technology transfer 
opportunities, shall be deemed allowable provided that such costs meet 
the other requirements of the allowable costs provisions of this 
Contract. In addition to any separately designated funds, these costs in 
any fiscal year shall not exceed an amount equal to 0.5 percent of the 
operating funds included in the Federal research and development budget 
(including Work For Others) of the Laboratory for that fiscal year 
without written approval of the contracting officer.
    (2) The Contractor's participation in litigation to enforce or 
defend Intellectual Property claims incurred in its technology transfer 
efforts shall be as provided in the clause entitled ``Insurance--
Litigation and Claims'' of this contract.
    (d) Conflicts of Interest--Technology Transfer. The Contractor shall 
have implementing procedures that seek to avoid employee and 
organizational conflicts of interest, or the appearance of conflicts of 
interest, in the conduct of its technology transfer activities. These 
procedures shall apply to other persons participating in Laboratory 
research or related technology transfer activities. Such implementing 
procedures shall be provided to the contracting officer for review and 
approval within sixty (60) days after execution of this contract. The 
contracting officer shall have thirty (30) days thereafter to approve or 
require specific changes to such procedures. Such implementing 
procedures shall include procedures to:
    (1) Inform employees of and require conformance with standards of 
conduct and integrity in connection with the CRADA activity in 
accordance with the provisions of paragraph (n)(5) of this clause;
    (2) Review and approve employee activities so as to avoid conflicts 
of interest arising from commercial utilization activities relating to 
Contractor-developed Intellectual Property;
    (3) Conduct work performed using royalties so as to avoid 
interference with or adverse effects on ongoing DOE projects and 
programs;
    (4) Conduct activities relating to commercial utilization of 
Contractor-developed Intellectual Property so as to avoid interference 
with or adverse effects on user facility or WFO activities of the 
Contractor;
    (5) Conduct DOE-funded projects and programs so as to avoid the 
appearance of conflicts of interest or actual conflicts of interest with 
non-Government funded work;
    (6) Notify the contracting officer with respect to any new work to 
be performed or proposed to be performed under the Contract for DOE or 
other Federal agencies where the new work or proposal involves 
Intellectual Property in which the Contractor has obtained or intends to 
request or elect title;
    (7) Except as provided elsewhere in this Contract, obtain the 
approval of the contracting officer for any licensing of or assignment 
of title to Intellectual Property rights by the Contractor to any 
business or corporate affiliate of the Contractor;
    (8) Obtain the approval of the contracting officer prior to any 
assignment, exclusive licensing, or option for exclusive licensing, of 
Intellectual Property to any individual who has been a Laboratory 
employee within the previous two years or to the company in which the 
individual is a principal; and
    (9) Notify non-Federal sponsors of WFO activities, or non-Federal 
users of user facilities, of any relevant Intellectual Property

[[Page 541]]

interest of the Contractor prior to execution of WFOs or user 
agreements.
    (10) Notify DOE prior to evaluating a proposal by a third party or 
DOE, when the subject matter of the proposal involves an elected or 
waived subject invention under this contract or one in which the 
Contractor intends to elect to retain title under this contract.
    (e) Fairness of Opportunity. In conducting its technology transfer 
activities, the Contractor shall prepare procedures and take all 
reasonable measures to ensure widespread notice of availability of 
technologies suited for transfer and opportunities for exclusive 
licensing and joint research arrangements. The requirement to widely 
disseminate the availability of technology transfer opportunities does 
not apply to a specific application originated outside of the Laboratory 
and by entities other than the Contractor.
    (f) U.S. Industrial Competitiveness. (1) In the interest of 
enhancing U.S. Industrial Competitiveness, the Contractor shall, in its 
licensing and assignments of Intellectual Property, give preference in 
such a manner as to enhance the accrual of economic and technological 
benefits to the U.S. domestic economy. The Contractor shall consider the 
following factors in all of its licensing and assignment decisions 
involving Laboratory intellectual property where the Laboratory obtains 
rights during the course of the Contractor's operation of the Laboratory 
under this contract:
    (i) whether any resulting design and development will be performed 
in the United States and whether resulting products, embodying parts, 
including components thereof, will be substantially manufactured in the 
United States; or
    (ii) (A) whether the proposed licensee or assignee has a business 
unit located in the United States and whether significant economic and 
technical benefits will flow to the United States as a result of the 
license or assignment agreement; and
    (B) in licensing any entity subject to the control of a foreign 
company or government, whether such foreign government permits United 
States agencies, organizations or other persons to enter into 
cooperative research and development agreements and licensing 
agreements, and has policies to protect United States Intellectual 
Property rights.
    (2) If the Contractor determines that neither of the conditions in 
paragraphs (f)(1)(i) or (ii) of this clause are likely to be fulfilled, 
the Contractor, prior to entering into such an agreement, must obtain 
the approval of the contracting officer. The contracting officer shall 
act on any such requests for approval within thirty (30) days.
    (3) The Contractor agrees to be bound by the provisions of 35 U.S.C. 
204 (Preference for United States industry).
    (g) Indemnity--Product Liability. In entering into written 
technology transfer agreements, including but not limited to, research 
and development agreements, licenses, assignments and CRADAs, the 
Contractor agrees to include in such agreements a requirement that the 
U.S. Government and the Contractor, except for any negligent acts or 
omissions of the Contractor, be indemnified for all damages, costs, and 
expenses, including attorneys' fees, arising from personal injury or 
property damage occurring as a result of the making, using or selling of 
a product, process or service by or on behalf of the Participant, its 
assignees or licensees which was derived from the work performed under 
the agreement. The Contractor shall identify and obtain the approval of 
the contracting officer for any proposed exceptions to this requirement 
such as where State or local law expressly prohibit the Participant from 
providing indemnification or where the research results will be placed 
in the public domain.
    (h) Disposition of Income. (1) Royalties or other income earned or 
retained by the Contractor as a result of performance of authorized 
technology transfer activities herein shall be used by the Contractor 
for scientific research, development, technology transfer, and education 
at the Laboratory, consistent with the research and development mission 
and objectives of the Laboratory and subject to Section 12(b)(5) of the 
Stevenson-Wydler Technology Innovation Act of 1980, as amended (15 
U.S.C. 3710a(b)(5)) and Chapter 38 of the Patent Laws (35 U.S.C. 200 et 
seq.) as amended through the effective date of this contract award or 
modification. If the net amounts of such royalties and income received 
from patent licensing after payment of patenting costs, licensing costs, 
payments to inventors and other expenses incidental to the 
administration of Subject Inventions during any fiscal year exceed 5 
percent of the Laboratory's budget for that fiscal year, 75 percent of 
such excess amounts shall be paid to the Treasury of the United States, 
and the remaining amount of such excess shall be used by the Contractor 
for the purposes as described above in this paragraph. Any inventions 
arising out of such scientific research and development activities shall 
be deemed to be Subject Inventions under the Contract.
    (2) The Contractor shall include as a part of its annual Laboratory 
Institutional Plan or other such annual document a plan setting out 
those uses to which royalties and other income received as a result of 
performance of authorized technology transfer activities herein will be 
applied at the Laboratory, and at the end of the year, provide a 
separate accounting for how the funds were actually used. Under no 
circumstances shall these royalties and income be used for an illegal 
augmentation of funds furnished by the U.S. Government.

[[Page 542]]

    (3) The Contractor shall establish subject to the approval of the 
contracting officer a policy for making awards or sharing of royalties 
with Contractor employees, other coinventors and coauthors, including 
Federal employee coinventors when deemed appropriate by the contracting 
officer.
    (i) Transfer to successor contractor. In the event of termination or 
upon the expiration of this Contract, any unexpended balance of income 
received for use at the Laboratory shall be transferred, at the 
contracting officer's request, 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 transfer title, as one 
package, to the extent the Contractor retains title, in all patents and 
patent applications, licenses, accounts containing royalty revenues from 
such license agreements, including equity positions in third party 
entities, and other Intellectual Property rights which arose at the 
Laboratory, to the successor contractor or to the Government as directed 
by the contracting officer.
    (j) Technology transfer affecting the national security. (1) The 
Contractor shall notify and obtain the approval of the contracting 
officer, prior to entering into any technology transfer arrangement, 
when such technology or any part of such technology is classified or 
sensitive under Section 148 of the Atomic Energy Act (42 U.S.C. 2168). 
Such notification shall include sufficient information to enable DOE to 
determine the extent that commercialization of such technology would 
enhance or diminish security interests of the United States, or diminish 
communications within DOE's nuclear weapon production complex. DOE shall 
use its best efforts to complete its determination within sixty (60) 
days of the Contractor's notification, and provision of any supporting 
information, and DOE shall promptly notify the Contractor as to whether 
the technology is transferable.
    (2) The Contractor shall include in all of its technology transfer 
agreements with third parties, including, but not limited to, CRADAs, 
licensing agreements and assignments, notice to such third parties that 
the export of goods and/or Technical Data from the United States may 
require some form of export control license or other authority from the 
U.S. Government and that failure to obtain such export control license 
may result in criminal liability under U.S. laws.
    (3) For other than fundamental research as defined in National 
Security Decision Directive 189, the Contractor is responsible to 
conduct internal export control reviews and assure that technology is 
transferred in accordance with applicable law.
    (k) Records. The Contractor shall maintain records of its technology 
transfer activities in a manner and to the extent satisfactory to the 
DOE and specifically including, but not limited to, the licensing 
agreements, assignments and the records required to implement the 
requirements of paragraphs (e), (f), and (h) of this clause and shall 
provide reports to the contracting officer to enable DOE to maintain the 
reporting requirements of Section 12(c)(6) of the Stevenson-Wydler 
Technology Innovation Act of 1980, as amended (15 U.S.C. 3710a(c)(6)). 
Such reports shall be made annually in a format to be agreed upon 
between the Contractor and DOE and in such a format which will serve to 
adequately inform DOE of the Contractor's technology transfer activities 
while protecting any data not subject to disclosure under the Rights in 
Technical Data clause and paragraph (n) of this clause. Such records 
shall be made available in accordance with the clauses of this Contract 
pertaining to inspection, audit and examination of records.
    (l) Reports to Congress. To facilitate DOE's reporting to Congress, 
the Contractor is required to submit annually to DOE a technology 
transfer plan for conducting its technology transfer function for the 
upcoming year, including plans for securing Intellectual Property rights 
in Laboratory innovations with commercial promise and plans for managing 
such innovations so as to benefit the competitiveness of United States 
industry. This plan shall be provided to the contracting officer on or 
before October 1st of each year.
    (m) Oversight and appraisal. The Contractor is responsible for 
developing and implementing effective internal controls for all 
technology transfer activities consistent with the audit and record 
requirements of this Contract. Laboratory Contractor performance in 
implementing the technology transfer mission and the effectiveness of 
the Contractor's procedures will be evaluated by the contracting officer 
as part of the annual appraisal process, with input from the cognizant 
Secretarial Officer or program office.
    (n) Technology transfer through cooperative research and development 
agreements. Upon approval of the contracting officer and as provided in 
a DOE approved Joint Work Statement (JWS), the Laboratory Director, or 
designee, may enter into CRADAs on behalf of the DOE subject to the 
requirements set forth in this paragraph.
    (1) Review and approval of CRADAs. (i) Except as otherwise directed 
in writing by the contracting officer, each JWS shall be submitted to 
the contracting officer for approval. The Contractor's Laboratory 
Director or designee shall provide a program mission impact statement 
and shall include an impact statement regarding related Intellectual 
Property rights known by the Contractor to be owned by the Government to 
assist the contracting officer in the approval determination.
    (ii) The Contractor shall also include (specific to the proposed 
CRADA), a statement of

[[Page 543]]

compliance with the Fairness of Opportunity requirements of paragraph 
(e) of this clause.
    (iii) Within thirty (30) days after submission of a JWS or proposed 
CRADA, the contracting officer shall approve, disapprove or request 
modification to the JWS or CRADA. The contracting officer shall provide 
a written explanation to the Contractor's Laboratory Director or 
designee of any disapproval or requirement for modification of a JWS or 
proposed CRADA.
    (iv) Except as otherwise directed in writing by the contracting 
officer, the Contractor shall not enter into, or begin work under, a 
CRADA until approval of the CRADA has been granted by the contracting 
officer. The Contractor may submit its proposed CRADA to the contracting 
officer at the time of submitting its proposed JWS or any time 
thereafter.
    (2) Selection of participants. The Contractor's Laboratory Director 
or designee in deciding what CRADA to enter into shall:
    (i) Give special consideration to small business firms, and 
consortia involving small business firms;
    (ii) Give preference to business units located in the United States 
which agree that products or processes embodying Intellectual Property 
will be substantially manufactured or practiced in the United States 
and, in the case of any industrial organization or other person subject 
to the control of a foreign company or government, take into 
consideration whether or not such foreign government permits United 
States agencies, organizations, or other persons to enter into 
cooperative research and development agreements and licensing 
agreements;
    (iii) Provide Fairness of Opportunity in accordance with the 
requirements of paragraph (e) of this clause; and
    (iv) Give consideration to the Conflicts of Interest requirements of 
paragraph (d) of this clause.
    (3) Withholding of data. (i) Data that is first produced as a result 
of research and development activities conducted under a CRADA and that 
would be a trade secret or commercial or financial data that would be 
privileged or confidential, if such data had been obtained from a non-
Federal third party, may be protected from disclosure under the Freedom 
of Information Act as provided in the Stevenson-Wydler Technology 
Innovation Act of 1980, as amended (15 U.S.C. 3710a(c)(7)) for a period 
as agreed in the CRADA of up to five (5)years from the time the data is 
first produced. The DOE shall cooperate with the Contractor in 
protecting such data.
    (ii) Unless otherwise expressly approved by the contracting officer 
in advance for a specific CRADA, the Contractor agrees, at the request 
of the contracting officer, to transmit such data to other DOE 
facilities for use by DOE or its Contractors by or on behalf of the 
Government. When data protected pursuant to paragraph (n)(3)(i) of this 
clause is so transferred, the Contractor shall clearly mark the data 
with a legend setting out the restrictions against private use and 
further dissemination, along with the expiration date of such 
restrictions.
    (iii) In addition to its authority to license Intellectual Property, 
the Contractor may enter into licensing agreements with third parties 
for data developed by the Contractor under a CRADA subject to other 
provisions of this Contract. However, the Contractor shall neither use 
the protection against dissemination nor the licensing of data as an 
alternative to the submittal of invention disclosures which include data 
protected pursuant to paragraph (n)(3)(i) of this clause.
    (4) Work for others and user facility programs. (i) WFO and User 
Facility Agreements (UFAs) are not CRADAs and will be available for use 
by the Contractor in addition to CRADAs for achieving utilization of 
employee expertise and unique facilities for maximizing technology 
transfer. The Contractor agrees form prospective CRADA participants, 
which are intending to substantially pay full cost recovery for the 
effort under a proposed CRADA, of the availability of alternative forms 
of agreements, i.e., WFO and UFA, and of the Class Patent Waiver 
provisions associated therewith.
    (ii) Where the Contractor believes that the transfer of technology 
to the U.S. domestic economy will benefit from, or other equity 
considerations dictate, an arrangement other than the Class Waiver of 
patent rights to the sponsor in WFO and UFAs, a request may be made to 
the contracting officer for an exception to the Class Waivers.
    (iii) Rights to inventions made under agreements other than funding 
agreements with third parties shall be governed by the appropriate 
provisions incorporated, with DOE approval, in such agreements, and the 
provisions in such agreements take precedence over any disposition of 
rights contained in this Contract. Disposition of rights under any such 
agreement shall be in accordance with any DOE class waiver (including 
Work for Others and User Class Waivers) or individually negotiated 
waiver which applies to the agreement.
    (5) Conflicts of interest. (i) Except as provided in paragraph 
(n)(5)(iii) of this clause, the Contractor shall assure that no employee 
of the Contractor shall have a substantial role (including an advisory 
role) in the preparation, negotiation, or approval of a CRADA, if, to 
such employee's knowledge:
    (A) Such employee, or the spouse, child, parent, sibling, or partner 
of such employee, or an organization (other than the Contractor) in 
which such employee serves as an officer, director, trustee, partner, or 
employee--

[[Page 544]]

    (1) Holds financial interest in any entity, other than the 
Contractor, that has a substantial interest in the preparation, 
negotiation, or approval of the CRADA;
    (2) Receives a gift or gratuity from any entity, other than the 
Contractor, that has a substantial interest in the preparation, 
negotiation, or approval of the CRADA; or
    (B) A financial interest in any entity, other than the Contractor, 
that has a substantial interest in the preparation, negotiation, or 
approval of the CRADA, is held by any person or organization with whom 
such employee is negotiating or has any arrangement concerning 
prospective employment.
    (ii) The Contractor shall require that each employee of the 
Contractor who has a substantial role (including an advisory role) in 
the preparation, negotiation, or approval of a CRADA certify through the 
Contractor to the contracting officer that the circumstances described 
in paragraph (n)(5)(i) of this clause do not apply to that employee.
    (iii) The requirements of paragraphs (n)(5)(i) and (n)(5)(ii) of 
this clause shall not apply in a case where the contracting officer is 
advised by the Contractor in advance of the participation of an employee 
described in those paragraphs in the preparation, negotiation or 
approval of a CRADA of the nature of and extent of any financial 
interest described in paragraph (n)(5)(i) of this clause, and the 
contracting officer determines that such financial interest is not so 
substantial as to be considered likely to affect the integrity of the 
Contractor employee's participation in the process of preparing, 
negotiating, or approving the CRADA.
    (o) Technology transfer in other cost-sharing agreements. In 
conducting research and development activities in cost-shared agreements 
not covered by paragraph (n) of this clause, the Contractor, with prior 
written permission of the contracting officer, may provide for the 
withholding of data produced thereunder in accordance with the 
applicable provisions of paragraph (n)(3) of this clause.

                             (End of clause)

    Alternate I (AUG 2002). As prescribed in 48 CFR 970.2770-4(b), add 
the following definition under paragraph (b) and the following new 
paragraph (p):

    (b)(8) Privately funded technology transfer means the prosecuting, 
maintaining, licensing, and marketing of inventions which are not owned 
by the Government (and not related to CRADAs) when such activities are 
conducted entirely without the use of Government funds.
    (p) Technology partnership ombudsman. (1) The Contractor agrees to 
establish a position to be known as ``Technology Partnership 
Ombudsman,'' to help resolve complaints from outside organizations 
regarding the policies and actions of the contractor with respect to 
technology partnerships (including CRADAs), patents owned by the 
contractor for inventions made at the laboratory, and technology 
licensing.
    (2) The Ombudsman shall be a senior official of the Contactor's 
laborratory staff, who is not involved in day-to-day technology 
partnerships, patents or technology licensing, or, if appointed from 
outside the laboratory or facility, shall function as such senior 
official.
    (3) The duties of the Technology Partnership Ombudsman shall 
include:
    (i) Serving as the focal point for assisting the public and industry 
in resolving complaints and disputes with the laboratory or facility 
regarding technology partnerships, patents, and technology licensing;
    (ii) Promoting the use of collaborative alternative dispute 
resolution techniques such as mediation to facilitate the speedy and low 
cost resolution of complaints and disputes, when appropriate; and
    (iii) Submitting a quarterly report, in a format provided by DOE, to 
the Secretary of Energy, the Administrator for Nuclear Security, the 
Director of the DOE Office of Dispute Resolution, and the Contracting 
Officer concerning the number and nature of complaints and disputes 
raised, along with the Ombudsman's assessment of their resolution, 
consistent with the protection of confidential and sensitive 
information.
    (q) Nothing in paragraphs (c) Allowable Costs, (e) Fairness of 
Opportunity, (f) U.S. Industrial Competitiveness, (g) Indemnity--Product 
Liability, (h) Disposition of Income, and (i) Transfer to Successor 
Contractor of this clause are intended to apply to the contractor's 
privately funded technology transfer activities if such privately funded 
activities are addressed elsewhere in the contract.

    Alternate II (DEC 2000). As prescribed in 48 CFR 970.2770-4(c), the 
contracting officer shall substitute the phrase ``weapon production 
facility'' wherever the word ``laboratory'' appears in the clause.

[65 FR 81009, Dec. 22, 2000, as amended at 67 FR 48570, July 25, 2002]



Sec. 970.5227-4  Authorization and consent.

    Insert the following clause in solicitations and contracts in 
accordance with 970.2702-1:

                  Authorization and Consent (AUG 2002)

    (a) The Government authorizes and consents to all use and 
manufacture of any invention described in and covered by a United States 
patent in the performance of this contract or any subcontract at any 
tier.

[[Page 545]]

    (b) If the Contractor is sued for copyright infringement or 
anticipates the filing of such a lawsuit, the Contractor may request 
authorization and consent to copy a copyrighted work from the 
contracting officer. Programmatic necessity is a major consideration for 
DOE in determining whether to grant such request.
    (c)(1) The Contractor agrees to include, and require inclusion of, 
the Authorization and Consent clause at 52.227-1, without Alternate 1, 
but suitably modified to identify the parties, in all subcontracts 
expected to exceed $100,000 at any tier for supplies or services, 
including construction, architect-engineer services, and materials, 
supplies, models, samples, and design or testing services.
    (2) The Contractor agrees to include, and require inclusion of, 
paragraph (a) of this Authorization and Consent clause, suitably 
modified to identify the parties, in all subcontracts at any tier for 
research and development activities expected to exceed $100,000.
    (3) Omission of an authorization and consent clause from any 
subcontract, including those valued less than $100,000 does not affect 
this authorization and consent.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 67 FR 48570, July 25, 2002]



Sec. 970.5227-5  Notice and assistance regarding patent and copyright 
          infringement.

    Insert the following clause in solicitations and contracts in 
accordance with 970.2702-2:

 Notice and Assistance Regarding Patent and Copyright Infringement (DEC 
                                  2000)

    (a) The Contractor shall report to the Contracting Officer promptly 
and in reasonable written detail, each notice or claim of patent or 
copyright infringement based on the performance of this contract of 
which the Contractor has knowledge.
    (b) If any person files a claim or suit against the Government on 
account of any alleged patent or copyright infringement arising out of 
the performance of this contract or out of the use of any supplies 
furnished or work or services performed hereunder, the Contractor shall 
furnish to the Government, when requested by the Contracting Officer, 
all evidence and information in possession of the Contractor pertaining 
to such suit or claim. Except where the Contractor has agreed to 
indemnify the Government, the Contractor shall furnish such evidence and 
information at the expense of the Government.
    (c) The Contractor agrees to include, and require inclusion of, this 
clause suitably modified to identify the parties, in all subcontracts at 
any tier expected to exceed $100,000.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 67 FR 48570, July 25, 2002]



Sec. 970.5227-6  Patent indemnity--subcontracts.

    Insert the following clause in solicitations and contracts in 
accordance with 970.2702-3:

                Patent Indemnity--Subcontracts (DEC 2000)

    Except as otherwise authorized by the Contracting Officer, the 
Contractor shall obtain indemnification of the Government and its 
officers, agents, and employees against liability, including costs, for 
infringement of any United States patent (except a patent issued upon an 
application that is now or may hereafter be withheld from issue pursuant 
to a secrecy order by the Government) from Contractor's subcontractors 
for any contract work subcontracted in accordance with FAR 48 CFR 
52.227-3.

                             (End of clause)



Sec. 970.5227-7  Royalty information.

    Insert the following provision in solicitations in accordance with 
970.2702-4:

                     Royalty Information (DEC 2000)

    (a) Cost or charges for royalties. If the response to this 
solicitation contains costs or charges for royalties totaling more than 
$250, the following information shall be included in the response 
relating to each separate item of royalty or license fee:
    (1) Name and address of licensor;
    (2) Date of license agreement;
    (3) Patent numbers, patent application serial numbers, or other 
basis on which the royalty is payable;
    (4) Brief description, including any part or model numbers of each 
contract item or component on which the royalty is payable;
    (5) Percentage or dollar rate of royalty per unit;
    (6) Unit price of contract item;
    (7) Number of units; and
    (8) Total dollar amount of royalties.
    (b) Copies of current licenses. In addition, if specifically 
requested by the Contracting Officer before execution of the contract, 
the offeror shall furnish a copy of the current license agreement and an 
identification of applicable claims of specific patents or other basis 
upon which the royalty may be payable.

[[Page 546]]

                           (End of provision)



Sec. 970.5227-8  Refund of royalties.

    Insert the following clause in solicitations and contracts in 
accordance with 970.2702-4:

                     Refund of Royalties (AUG 2002)

    (a) During performance of this Contract, if any royalties are 
proposed to be charged to the Government as costs under this Contract, 
the Contractor agrees to submit for approval of the Contracting Officer, 
prior to the execution of any license, the following information 
relating to each separate item of royalty:
    (1) Name and address of licensor;
    (2) Patent numbers, patent application serial numbers, or other 
basis on which the royalty is payable;
    (3) Brief description, including any part or model numbers of each 
contract item or component on which the royalty is payable;
    (4) Percentage or dollar rate of royalty per unit;
    (5) Unit price of contract item;
    (6) Number of units;
    (7) Total dollar amount of royalties; and
    (8) A copy of the proposed license agreement.
    (b) If specifically requested by the Contracting Officer, the 
Contractor shall furnish a copy of any license agreement entered into 
prior to the effective date of this clause and an identification of 
applicable claims of specific patents or other basis upon which 
royalties are payable.
    (c) The term ``royalties'' as used in this clause refers to any 
costs or charges in the nature of royalties, license fees, patent or 
license amortization costs, or the like, for the use of or for rights in 
patents and patent applications that are used in the performance of this 
contract or any subcontract hereunder.
    (d) The Contractor shall furnish to the Contracting Officer, 
annually upon request, a statement of royalties paid or required to be 
paid in connection with performing this Contract and subcontracts 
hereunder.
    (e) For royalty payments under licenses entered into after the 
effective date of this Contract, costs incurred for royalties proposed 
under this paragraph shall be allowable only to the extent that such 
royalties are approved by the Contracting Officer. If the Contracting 
Officer determines that existing or proposed royalty payments are 
inappropriate, any payments subsequent to such determination shall be 
allowable only to the extent approved by the Contracting Officer.
    (f) Regardless of prior DOE approval of any individual payments or 
royalties, DOE may contest at any time the enforceability, validity, 
scope of, or title to a patent for which the Contractor makes a royalty 
or other payment.
    (g) If at any time within 3 years after final payment under this 
contract, the Contractor for any reason is relieved in whole or in part 
from the payment of any royalties to which this clause applies, the 
Contractor shall promptly notify the Contracting Officer of that fact 
and shall promptly reimburse the Government for any refunds received or 
royalties paid after having received notice of such relief.
    (h) The Contractor agrees to include, and require inclusion of, this 
clause, including this paragraph (h), suitably modified to identify the 
parties in any subcontract at any tier in which the amount of royalties 
reported during negotiation of the subcontract exceeds $250.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 67 FR 48570, July 25, 2002]



Sec. 970.5227-9  Notice of right to request patent waiver.

    Insert the following provision in solicitations in accordance with 
970.2704-6:

           Notice of Right To Request Patent Waiver (DEC 2000)

    Offerors have the right to request a waiver of all or any part of 
the rights of the United States in inventions conceived or first 
actually reduced to practice in performance of the contract, in advance 
of or within 30 days after the effective date of contracting. If such 
advance waiver is not requested or the request is denied, the Contractor 
has a continuing right under the contract to request a waiver of the 
rights of the Government in identified inventions, i.e., individual 
inventions conceived or first actually reduced to practice in 
performance of the contract. Contractors that are domestic small 
businesses and domestic nonprofit organizations may not need a waiver 
and will have included in their contracts a patent clause reflecting 
their right to elect title to subject inventions pursuant to the Bayh-
Dole Act (35 U.S.C. 200 et seq.).

                           (End of provision)



Sec. 970.5227-10  Patent rights--management and operating contracts, 
          nonprofit organization or small business firm contractor.

    As prescribed in 970.2703-1(b)(2), insert the following clause:

[[Page 547]]

Patent Rights-Management and Operating Contracts, Nonprofit Organization 
              or Small Business Firm Contractor (DEC 2000)

    (a) Definitions. (1) DOE licensing regulations means the Department 
of Energy patent licensing regulations at 10 CFR part 781.
    (2) Exceptional circumstance subject invention means any subject 
invention in a technical field or related to a task determined by the 
Department of Energy to be subject to an exceptional circumstance under 
35 U.S.C. 202(a)(ii) and in accordance with 37 CFR 401.3(e).
    (3) Invention means any invention or discovery which is or may be 
patentable or otherwise protectable under Title 35 of the United States 
Code, or any novel variety of plant which is or may be protected under 
the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).
    (4) Made when used in relation to any invention means the conception 
or first actual reduction to practice of such invention.
    (5) Nonprofit organization means a university or other institution 
of higher education or an organization of the type described in section 
501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and 
exempt from taxation under section 501(a) of the Internal Revenue Code 
(26 U.S.C. 501(a)) or any nonprofit scientific or educational 
organization qualified under a state nonprofit organization statute.
    (6) Patent Counsel means the Department of Energy (DOE) Patent 
Counsel assisting the DOE contracting activity.
    (7) Practical application means to manufacture, in the case of a 
composition or product; to practice, in the case of a process or method; 
or to operate, in the case of a machine or system; and, in each case, 
under such conditions as to establish that the invention is being 
utilized and that its benefits are, to the extent permitted by law or 
Government regulations, available to the public on reasonable terms.
    (8) Small business firm means a small business concern as defined at 
section 2 of Pub. L. 85-536 (15 U.S.C. 632) and implementing regulations 
of the Administrator of the Small Business Administration. For the 
purpose of this clause, the size standards for small business concerns 
involved in Government procurement and subcontracting at 13 CFR 121.3-8 
and 13 CFR 121.3-12, respectively, are used.
    (9) Subject Invention means any invention of the contractor 
conceived or first actually reduced to practice in the performance of 
work under this contract, provided that in the case of a variety of 
plant, the date of determination (as defined in section 41(d) of the 
Plant Variety Protection Act, 7 U.S.C. 2401(d)) shall also occur during 
the period of contract performance.
    (b) Allocation of Principal Rights. (1) Retention of title by the 
Contractor. Except for exceptional circumstance subject inventions, the 
contractor may retain the entire right, title, and interest throughout 
the world to each subject invention subject to the provisions of this 
clause and 35 U.S.C. 203. With respect to any subject invention in which 
the Contractor retains title, the Federal government shall have a 
nonexclusive, nontransferable, irrevocable, paid-up license to practice 
or have practiced for or on behalf of the United States the subject 
invention throughout the world.
    (2) Exceptional circumstance subject inventions. Except to the 
extent that rights are retained by the Contractor in a determination of 
exceptional circumstances or granted to a contractor through a 
determination of greater rights in accordance with subparagraph (b)(4) 
of this clause, the Contractor does not have a right to retain title to 
any exceptional circumstance subject inventions and agrees to assign to 
the Government the entire right, title, and interest, throughout the 
world, in and to any exceptional circumstance subject inventions.
    (i) Inventions within or relating to the following fields of 
technology are exceptional circumstance subject inventions:
    (A) Uranium enrichment technology;
    (B) Storage and disposal of civilian high-level nuclear waste and 
spent fuel technology; and
    (C) National security technologies classified or sensitive under 
Section 148 of the Atomic Energy Act (42 U.S.C. 2168).
    (ii) Inventions made under any agreement, contract or subcontract 
related to the following are exceptional circumstance subject 
inventions:
    (A) DOE Steel Initiative and Metals Initiative;
    (B) U.S. Advanced Battery Consortium; and
    (C) Any funding agreement which is funded in part by the Electric 
Power Research Institute (EPRI) or the Gas Research Institute (GRI).
    (iii) DOE reserves the right to unilaterally amend this contract to 
modify, by deletion or insertion, technical fields, tasks, or other 
classifications for the purpose of determining DOE exceptional 
circumstance subject inventions.
    (3) Treaties and international agreements. Any rights acquired by 
the Contractor in subject inventions are subject to any disposition of 
right, title, or interest in or to subject inventions provided for in 
treaties or international agreements identified at Appendix [Insert 
Reference] to this contract. DOE reserves the right to unilaterally 
amend this contract to identify specific treaties or international 
agreements entered into or to be entered into by the Government after 
the effective date of this contract and

[[Page 548]]

to effectuate those license or other rights which are necessary for the 
Government to meet its obligations to foreign governments, their 
nationals and international organizations under such treaties or 
international agreements with respect to subject inventions made after 
the date of the amendment.
    (4) Contractor request for greater rights in exceptional 
circumstance subject inventions. The Contractor may request rights 
greater than allowed by the exceptional circumstance determination in an 
exceptional circumstance subject invention by submitting such a request 
in writing to Patent Counsel at the time the exceptional circumstance 
subject invention is disclosed to DOE or within eight (8) months after 
conception or first actual reduction to practice of the exceptional 
circumstance subject invention, whichever occurs first, unless a longer 
period is authorized in writing by the Patent Counsel for good cause 
shown in writing by the Contractor. DOE may, in its discretion, grant or 
refuse to grant such a request by the Contractor.
    (5) Contractor employee-inventor rights. If the Contractor does not 
elect to retain title to a subject invention or does not request greater 
rights in an exceptional circumstance subject invention, a Contractor 
employee-inventor, after consultation with the Contractor and with 
written authorization from the Contractor in accordance with 10 CFR 
784.9(b)(4), may request greater rights, including title, in the subject 
invention or the exceptional circumstance invention from DOE, and DOE 
may, in its discretion, grant or refuse to grant such a request by the 
Contractor employee-inventor.
    (6) Government assignment of rights in Government employees' subject 
inventions. If a Government employee is a joint inventor of a subject 
invention or of an exceptional circumstance subject invention to which 
the Contractor has rights, the Government may assign or refuse to assign 
to the Contractor any rights in the subject invention or exceptional 
circumstance subject invention acquired by the Government from the 
Government employee, in accordance with 48 CFR 27.304-1(d). The rights 
assigned to the Contractor are subject to any provision of this clause 
that is applicable to subject inventions in which the Contractor retains 
title, including reservation by the Government of a nonexclusive, 
nontransferable, irrevocable, paid-up license, except that the 
Contractor shall file its initial patent application claiming the 
subject invention or exceptional circumstance invention within one (1) 
year after the assignment of such rights. The Contractor shall share 
royalties collected for the manufacture, use or sale of the subject 
invention with the Government employee.
    (c) Subject invention disclosure, election of title and filing of 
patent application by contractor--(1) Subject invention disclosure. The 
contractor will disclose each subject invention to the Patent Counsel 
within two months after the inventor discloses it in writing to 
contractor personnel responsible for patent matters. The disclosure to 
the agency shall be in the form of a written report and shall identify 
the contract under which the invention was made and the inventor(s) and 
all sources of funding by B&R code for the invention. It shall be 
sufficiently complete in technical detail to convey a clear 
understanding to the extent known at the time of the disclosure, of the 
nature, purpose, operation, and the physical, chemical, biological or 
electrical characteristics of the invention. The disclosure shall also 
identify any publication, on sale or public use of the invention and 
whether a manuscript describing the invention has been submitted for 
publication and, if so, whether it has been accepted for publication at 
the time of disclosure. The disclosure shall include a written statement 
as to whether the invention falls within an exceptional circumstance 
field. DOE will make a determination and advise the Contractor within 30 
days of receipt of an invention disclosure as to whether the invention 
is an exceptional circumstance subject invention. In addition, after 
disclosure to the Patent Counsel, the Contractor will promptly notify 
the agency of the acceptance of any manuscript describing the invention 
for publication or of any on sale or public use planned by the 
contractor. The Contractor shall obtain approval from Patent Counsel 
prior to any release or publication of information concerning any 
nonelectable subject invention such as an exceptional circumstance 
subject invention or any subject invention related to a treaty or 
international agreement.
    (2) Election by the Contractor. Except as provided in paragraph 
(b)(2) of this clause, the Contractor will elect in writing whether or 
not to retain title to any such invention by notifying the Federal 
agency within two years of disclosure to the Federal agency. However, in 
any case where publication, on sale or public use has initiated the one 
year statutory period wherein valid patent protection can still be 
obtained in the United States, the period for election of title may be 
shortened by the agency to a date that is no more than 60 days prior to 
the end of the statutory period.
    (3) Filing of patent applications by the Contractor. The Contractor 
will file its initial patent application on a subject invention to which 
it elects to retain title within one year after election of title or, if 
earlier, or prior to the end of any 1-year statutory period wherein 
valid patent protection can be obtained in the United States after a 
publication, on sale, or public use. The Contractor will file patent 
applications in additional countries or international patent offices

[[Page 549]]

within either ten months of the corresponding initial patent application 
or six months from the date permission is granted by the Commissioner of 
Patents and Trademarks to file foreign patent applications where such 
filing has been prohibited by a Secrecy Order.
    (4) Contractor's request for an extension of time. Requests for an 
extension of the time for disclosure, election, and filing under 
subparagraphs (c)(1), (2) and (3) may, at the discretion of Patent 
Counsel, be granted.
    (5) Publication approval. During the course of the work under this 
contract, the Contractor or its employees may desire to release or 
publish information regarding scientific or technical developments 
conceived or first actually reduced to practice in the course of or 
under this contract. In order that public disclosure of such information 
will not adversely affect the patent interest of DOE or the Contractor, 
approval for release or publication shall be secured from the Contractor 
personnel responsible for patent matters prior to any such release or 
publication. Where DOE's approval of publication is requested, DOE's 
response to such requests for approval shall normally be provided within 
90 days except in circumstances in which a domestic patent application 
must be filed in order to protect foreign rights. In the case involving 
foreign patent rights, DOE shall be granted an additional 180 days with 
which to respond to the request for approval, unless extended by mutual 
agreement.
    (d) Conditions when the Government may obtain title. The Contractor 
will convey to the DOE, upon written request, title to any subject 
invention--
    (1) If the Contractor fails to disclose or elect title to the 
subject invention within the times specified in paragraph (c) of this 
clause, or elects not to retain title; provided, that DOE may only 
request title within sixty (60) days after learning of the failure of 
the Contractor to disclose or to elect within the specified times.
    (2) In those countries in which the Contractor fails to file a 
patent application within the times specified in subparagraph (c) of 
this clause; provided, however, that if the Contractor has filed a 
patent application in a country after the times specified in 
subparagraph (c) above, but prior to its receipt of the written request 
of the DOE, the Contractor shall continue to retain title in that 
country.
    (3) In any country in which the Contractor decides not to continue 
the prosecution of any application for, to pay the maintenance fees on, 
or defend in a reexamination or opposition proceeding on, a patent on a 
subject invention.
    (4) If the Contractor requests that DOE acquire title or rights from 
the Contractor in a subject invention to which the Contractor had 
initially retained title or rights, or in an exceptional circumstance 
subject invention to which the Contractor was granted greater rights, 
DOE may acquire such title or rights from the Contractor, or DOE may 
decide against acquiring such title or rights from the Contractor, at 
DOE's sole discretion.
    (e) Minimum rights of the Contractor and protection of the 
Contractor's right to file--(1) Request for a Contractor license. 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. DOE may grant or refuse to grant such a request by the 
Contractor. When DOE approves such reservation, the Contractor's license 
will normally 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.
    (2) Revocation or modification of a Contractor license. The 
Contractor's domestic license may be revoked or modified by DOE to the 
extent necessary to achieve expeditious practical application of the 
subject invention pursuant to an application for an exclusive license 
submitted in accordance with applicable provisions at 37 CFR Part 404 
and DOE licensing regulations at 10 CFR Part 781. This license will not 
be revoked in the field of use or the geographical areas in which the 
Contractor has achieved practical application and continues to make the 
benefits of the subject invention reasonably accessible to the public. 
The license in any foreign country may be revoked or modified at the 
discretion of DOE to the extent the Contractor, its licensees, or the 
domestic subsidiaries or affiliates have failed to achieve practical 
application of the subject invention in that foreign country.
    (3) Notice of revocation of modification of a Contractor license. 
Before revocation or modification of the license, DOE will furnish the 
Contractor a written notice of its intention to revoke or modify the 
license, and the Contractor will be allowed thirty days (or such other 
time as may be authorized by DOE for good cause shown by the Contractor) 
after the notice to show cause why the license should not be revoked or 
modified. The Contractor has the right to appeal, in accordance with 
applicable regulations in 37 CFR part 404 and DOE licensing regulations 
at 10 CFR part 781 concerning the licensing of Government owned 
inventions, any decision

[[Page 550]]

concerning the revocation or modification of the license.
    (f) Contractor action to protect the Government's interest--(1) 
Execution of delivery of title or license instruments. The Contractor 
agrees to execute or to have executed, and promptly deliver to the 
Patent Counsel all instruments necessary to accomplish the following 
actions:
    (i) Establish or confirm the rights the Government has throughout 
the world in those subject inventions to which the Contractor elects to 
retain title, and
    (ii) Convey title to DOE when requested under subparagraphs (b) or 
paragraph (d) of this clause and to enable the Government to obtain 
patent protection throughout the world in that subject invention.
    (2) Contractor employee agreements. The Contractor agrees to 
require, by written agreement, its employees, other than clerical and 
nontechnical employees, to disclose promptly in writing to Contractor 
personnel identified as responsible for the administration of patent 
matters and in a format suggested by the Contractor, each subject 
invention made under this contract in order that the Contractor can 
comply with the disclosure provisions of paragraph (c) of this clause, 
and to execute all papers necessary to file patent applications on 
subject inventions and to establish the Government's rights in the 
subject inventions. This disclosure format should require, as a minimum, 
the information required by subparagraph (c)(1) of this clause. The 
Contractor shall instruct such employees, through employee agreements or 
other suitable educational programs, on the importance of reporting 
inventions in sufficient time to permit the filing of patent 
applications prior to U.S. or foreign statutory bars.
    (3) Notification of discontinuation of patent protection. The 
contractor will notify the Patent Counsel of any decision not to 
continue the prosecution of a patent application, pay maintenance fees, 
or defend in a reexamination or opposition proceeding on a patent, in 
any country, not less than thirty days before the expiration of the 
response period required by the relevant patent office.
    (4) Notification of Government rights. The contractor agrees to 
include, within the specification of any United States patent 
applications and any patent issuing thereon covering a subject 
invention, the following statement, ``This invention was made with 
government support under (identify the contract) awarded by (identify 
the Federal agency). The government has certain rights in the 
invention.''
    (5) Invention identification procedures. The Contractor shall 
establish and maintain active and effective procedures to ensure that 
subject inventions are promptly identified and timely disclosed and 
shall submit a written description of such procedures to the Contracting 
Officer so that the Contracting Officer may evaluate and determine their 
effectiveness.
    (6) Invention filing documentation. If the Contractor files a 
domestic or foreign patent application claiming a subject invention, the 
Contractor shall promptly submit to Patent Counsel, upon request, the 
following information and documents:
    (i) The filing date, serial number, title, and a copy of the patent 
application (including an English-language version if filed in a 
language other than English);
    (ii) An executed and approved instrument fully confirmatory of all 
Government rights in the subject invention; and
    (iii) The patent number, issue date, and a copy of any issued patent 
claiming the subject invention.
    (7) Duplication and disclosure of documents. The Government may 
duplicate and disclose subject invention disclosures and all other 
reports and papers furnished or required to be furnished pursuant to 
this clause; provided, however, that any such duplication or disclosure 
by the Government is subject to the confidentiality provision at 35 
U.S.C. 205 and 37 CFR part 40.
    (g) Subcontracts--(1) Subcontractor subject inventions. The 
Contractor shall not obtain rights in the subcontractor's subject 
inventions as part of the consideration for awarding a subcontract.
    (2) Inclusion of patent rights clause--non-profit organization or 
small business firm subcontractors. Unless otherwise authorized or 
directed by the Contracting Officer, the Contractor shall include the 
patent rights clause at 48 CFR 952.227-11, suitably modified to identify 
the parties, in all subcontracts, at any tier, for experimental, 
developmental, demonstration or research work to be performed by a small 
business firm or domestic nonprofit organization, except subcontracts 
which are subject to exceptional circumstances in accordance with 35 
U.S.C. 202 and subparagraph (b)(2) of this clause. The subcontractor 
retains all rights provided for the contractor in the patent rights 
clause at 48 CFR 952.227-11.
    (3) Inclusion of patent rights clause--subcontractors other than 
non-profit organizations and small business firms. Except for the 
subcontracts described in subparagraph (g)(2) of this clause, the 
Contractor shall include the patent rights clause at 48 CFR 952.227-13, 
suitably modified to identify the parties, in any contract for 
experimental, developmental, demonstration or research work. For 
subcontracts subject to exceptional circumstances, the contractor must 
consult with DOE patent counsel with respect to the appropriate patent 
clause.
    (4) DOE and subcontractor contract. With respect to subcontracts at 
any tier, DOE, the subcontractor, and the Contractor agree that the 
mutual obligations of the parties created

[[Page 551]]

by this clause constitute a contract between the subcontractor and DOE 
with respect to the matters covered by the clause; provided, however, 
that nothing in this paragraph is intended to confer any jurisdiction 
under the Contract Disputes Act in connection with proceedings under 
paragraph (j) of this clause.
    (5) Subcontractor refusal to accept terms of patent clause. If a 
prospective subcontractor refuses to accept the terms of a patent rights 
clause, the Contractor shall promptly submit a written notice to the 
Contracting Officer stating the subcontractor's reasons for such a 
refusal, including any relevant information for expediting disposition 
of the matter, and the Contractor shall not proceed with the subcontract 
without the written authorization of the Contracting Officer.
    (6) Notification of award of subcontract. Upon the award of any 
subcontract at any tier containing a patent rights clause, the 
Contractor shall promptly notify the Contracting Officer in writing and 
identify the subcontractor, the applicable patent rights clause, the 
work to be performed under the subcontract, and the dates of award and 
estimated completion. Upon request of the Contracting Officer, the 
Contractor shall furnish a copy of a subcontract.
    (7) Identification of subcontractor subject inventions. If the 
Contractor in the performance of this contract becomes aware of a 
subject invention made under a subcontract, the Contractor shall 
promptly notify Patent Counsel and identify the subject invention.
    (h) Reporting on utilization of subject inventions. The Contractor 
agrees to submit to DOE on request, periodic reports, no more frequently 
than annually, on the utilization of a subject invention or on efforts 
at obtaining such utilization that are being made by the Contractor or 
its licensees or assignees. Such reports shall include information 
regarding the status of development, date of first commercial sale or 
use, gross royalties received by the Contractor, and such other data and 
information as DOE may reasonably specify. The Contractor also agrees to 
provide additional reports as may be requested by DOE in connection with 
any march-in proceeding undertaken by DOE in accordance with paragraph 
(j) of this clause. As required by 35 U.S.C. 202(c)(5), DOE agrees it 
will not disclose such information to persons outside the Government 
without permission of the Contractor.
    (i) Preference for United States Industry. Notwithstanding any other 
provision of this clause, the Contractor agrees that neither it nor any 
assignee will grant to any person the exclusive right to use or sell any 
subject invention in the United States unless such person agrees that 
any product embodying the subject invention or produced through the use 
of the subject invention will be manufactured substantially in the 
United States. However, in individual cases, the requirement for such an 
agreement may be waived by DOE upon a showing by the Contractor or its 
assignee that reasonable but unsuccessful efforts have been made to 
grant licenses on similar terms to potential licensees that would be 
likely to manufacture substantially in the United States or that under 
the circumstances domestic manufacture is not commercially feasible.
    (j) March-in Rights. The Contractor agrees that, with respect to any 
subject invention in which it has acquired title, DOE has the right in 
accordance with the procedures in 37 CFR 401.6 and any DOE supplemental 
regulations to require the Contractor, an assignee or exclusive licensee 
of a subject invention to grant a nonexclusive, partially exclusive, or 
exclusive license in any field of use to a responsible applicant or 
applicants, upon terms that are reasonable under the circumstances, and, 
if the Contractor, assignee or exclusive licensee refuses such a 
request, DOE has the right to grant such a license itself if DOE 
determines that--
    (1) Such action is necessary because the Contractor or assignee has 
not taken, or is not expected to take within a reasonable time, 
effective steps to achieve practical application of the subject 
invention in such field of use;
    (2) Such action is necessary to alleviate health or safety needs 
which are not reasonably satisfied by the Contractor, assignee, or their 
licensees;
    (3) Such action is necessary to meet requirements for public use 
specified by Federal regulations and such requirements are not 
reasonably satisfied by the Contractor, assignee, or licensees; or
    (4) Such action is necessary because the agreement required by 
paragraph (i) of this clause has not been obtained or waived, or because 
a licensee of the exclusive right to use or sell any subject invention 
in the United States is in breach of such agreement.
    (k) Special provisions for contracts with nonprofit organizations. 
If the Contractor is a nonprofit organization, it agrees that--
    (1) DOE approval of assignment of rights. Rights to a subject 
invention in the United States may not be assigned by the Contractor 
without the approval of DOE, except where such assignment is made to an 
organization which has as one of its primary functions the management of 
inventions; provided, that such assignee will be subject to the same 
provisions of this clause as the Contractor.
    (2) Small business firm licensees. It will make efforts that are 
reasonable under the circumstances to attract licensees of subject 
inventions that are small business firms, and that it will give a 
preference to a small business firm when licensing a subject invention 
if the Contractor determines that the small

[[Page 552]]

business firm has a plan or proposal for marketing the invention which, 
if executed, is equally as likely to bring the invention to practical 
application as any plans or proposals from applicants that are not small 
business firms; provided, that the Contractor is also satisfied that the 
small business firm has the capability and resources to carry out its 
plan or proposal. The decision whether to give a preference in any 
specific case will be at the discretion of the Contractor. However, the 
Contractor agrees that the Secretary of Commerce may review the 
Contractor's licensing program and decisions regarding small business 
firm applicants, and the Contractor will negotiate changes to its 
licensing policies, procedures, or practices with the Secretary of 
Commerce when that Secretary's review discloses that the Contractor 
could take reasonable steps to more effectively implement the 
requirements of this subparagraph (k)(2).
    (3) Contractor licensing of subject inventions. To the extent that 
it provides the most effective technology transfer, licensing of subject 
inventions shall be administered by Contractor employees on location at 
the facility.
    (l) Communications. The Contractor shall direct any notification, 
disclosure or request provided for in this clause to the Patent Counsel 
assisting the DOE contracting activity.
    (m) Reports--(1) Interim reports. Upon DOE's request, the Contractor 
shall submit to DOE, no more frequently than annually, a list of subject 
inventions disclosed to DOE during a specified period, or a statement 
that no subject inventions were made during the specified period; and a 
list of subcontracts containing a patent clause and awarded by the 
Contractor during a specified period, or a statement that no such 
subcontracts were awarded during the specified period.
    (2) Final reports. Upon DOE's request, the Contractor shall submit 
to DOE, prior to closeout of the contract, a list of all subject 
inventions disclosed during the performance period of the contract, or a 
statement that no subject inventions were made during the contract 
performance period; and a list of all subcontracts containing a patent 
clause and awarded by the Contractor during the contract performance 
period, or a statement that no such subcontracts were awarded during the 
contract performance period.
    (n) Examination of Records Relating to Subject Inventions--(1) 
Contractor compliance. Until the expiration of three (3) years after 
final payment under this contract, the Contracting Officer or any 
authorized representative may examine any books (including laboratory 
notebooks), records, documents, and other supporting data of the 
Contractor, which the Contracting Officer or authorized representative 
deems reasonably pertinent to the discovery or identification of subject 
inventions, including exceptional circumstance subject inventions, or to 
determine Contractor compliance with any requirement of this clause.
    (2) Unreported inventions. If the Contracting Officer is aware of an 
invention that is not disclosed by the Contractor to DOE, and the 
Contracting Officer believes the unreported invention may be a subject 
invention, including exceptional circumstance subject inventions, DOE 
may require the Contractor to submit to DOE a disclosure of the 
invention for a determination of ownership rights.
    (3) Confidentiality. Any examination of records under this paragraph 
is subject to appropriate conditions to protect the confidentiality of 
the information involved.
    (4) Power of inspection. With respect to a subject invention for 
which the Contractor has responsibility for patent prosecution, the 
Contractor shall furnish the Government, upon request by DOE, an 
irrevocable power to inspect and make copies of a prosecution file for 
any patent application claiming the subject invention.
    (o) 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 product 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. Notwithstanding the acceptance or exercise by the Government 
of these rights, the Government may contest at any time the 
enforceability, validity or scope of, or title to, any rights or patents 
herein licensed.
    (p) Atomic Energy--(1) Pecuniary awards. No claim for pecuniary 
award of compensation under the provisions of the Atomic Energy Act of 
1954, as amended, may be asserted with respect to any invention or 
discovery made or conceived in the course of or under this contract.
    (2) Patent agreements. Except as otherwise authorized in writing by 
the Contracting Officer, the Contractor shall obtain patent agreements 
to effectuate the provisions of subparagraph (p)(1) of this clause from 
all persons who perform any part of the work under this contract, except 
nontechnical personnel, such as clerical employees and manual laborers.

[[Page 553]]

    (q) Classified inventions--(1) Approval for filing a foreign patent 
application. The Contractor shall not file or cause to be filed an 
application or registration for a patent disclosing a subject invention 
related to classified subject matter in any country other than the 
United States without first obtaining the written approval of the 
Contracting Officer.
    (2) Transmission of classified subject matter. If in accordance with 
this clause the Contractor files a patent application in the United 
States disclosing a subject invention that is classified for reasons of 
security, the Contractor shall observe all applicable security 
regulations covering the transmission of classified subject matter. If 
the Contractor transmits a patent application disclosing a classified 
subject invention to the United States Patent and Trademark Office 
(USPTO), the Contractor shall submit a separate letter to the USPTO 
identifying the contract or contracts by agency and agreement number 
that require security classification markings to be placed on the patent 
application.
    (3) Inclusion of clause in subcontracts. The Contractor agrees to 
include the substance of this clause in subcontracts at any tier that 
cover or are likely to cover subject matter classified for reasons of 
security.
    (r) Patent functions. Upon the written request of the Contracting 
Officer or Patent Counsel, the Contractor agrees to make reasonable 
efforts to support DOE in accomplishing patent-related functions for 
work arising out of the contract, including, but not limited to, the 
prosecution of patent applications, and the determination of questions 
of novelty, patentability, and inventorship.
    (s) Educational awards subject to 35 U.S.C. 212. The Contractor 
shall notify the Contracting Officer prior to the placement of any 
person subject to 35 U.S.C. 212 in an area of technology or task (1) 
related to exceptional circumstance technology or (2) which is subject 
to treaties or international agreements as set forth in paragraph (b)(3) 
of this clause or agreements other than funding agreements. The 
Contracting Officer may disapprove of any such placement.
    (t) Annual appraisal by Patent Counsel. Patent Counsel may conduct 
an annual appraisal to evaluate the Contractor's effectiveness in 
identifying and protecting subject inventions in accordance with DOE 
policy.

                             (End of clause)

    Alternate 1 Weapons Related Subject Inventions. As prescribed at 
970.2703-2(g), insert the following as subparagraphs (a)(10) and (b)(7), 
respectively:

    (a) Definitions. (10) Weapons Related Subject Invention means any 
subject invention conceived or first actually reduced to practice in the 
course of or under work funded by or through defense programs , 
including Department of Defense and intelligence reimbursable work, or 
the Naval Nuclear Propulsion Program of the Department of Energy or the 
National Nuclear Security Administration.
    (b) Allocation of Principal Rights--(7) Weapons related subject 
inventions. Except to the extent that DOE is solely satisfied that the 
Contractor meets certain procedural requirements and DOE grants rights 
to the Contractor in weapons related subject inventions, the Contractor 
does not have the right to retain title to any weapons related subject 
inventions.

                           (End of alternate)

[65 FR 81009, Dec. 22, 2000, as amended at 67 FR 48571, July 25, 2002]



Sec. 970.5227-11  Patent rights--management and operating contracts, 
          for-profit contractor, non-technology transfer.

    Insert the following clause in solicitations and contracts in 
accordance with 970.2703-1(b)(4):

     Patent Rights--Management and Operating Contracts, for-Profit 
             Contractor, Non-Technology Transfer (DEC 2000)

    (a) Definitions. (1) DOE licensing regulations means the Department 
of Energy patent licensing regulations at 10 CFR part 781.
    (2) DOE patent waiver regulations means the Department of Energy 
patent waiver regulations at 10 CFR part 784.
    (3) Invention means any invention or discovery which is or may be 
patentable or otherwise protectable under title 35 of the United States 
Code, or any novel variety of plant which is or may be protected under 
the Plant Variety Protection Act (7 U.S.C. 2321, et seq.).
    (4) Made when used in relation to any invention means the conception 
or first actual reduction to practice of such invention.
    (5) Patent Counsel means DOE Patent Counsel assisting the 
contracting activity.
    (6) Practical application means to manufacture, in the case of a 
composition or product; to practice, in the case of a process or method; 
or to operate, in the case of a machine or system; and, in each case, 
under such conditions as to establish that the invention is being 
utilized and that its benefits are, to the extent permitted by law or 
Government regulations, available to the public on reasonable terms.

[[Page 554]]

    (7) Subject invention means any invention of the contractor 
conceived or first actually reduced to practice in the course of or 
under this contract, provided that in the case of a variety of plant, 
the date of determination (as defined in section 41(d) of the Plant 
Variety Protection Act, 7 U.S.C. 2401(d)) shall also occur during the 
period of contract performance.
    (b) Allocation of principal rights--(1) Assignment to the 
Government. Except to the extent that rights are retained by the 
Contractor by a determination of greater rights in accordance with 
subparagraph (b)(2) of this clause or by a request for foreign patent 
rights in accordance with subparagraph (d)(2) of this clause, the 
Contractor agrees to assign to the Government the entire right, title, 
and interest throughout the world in and to each subject invention.
    (2) Greater rights determinations. The Contractor, or an Contractor 
employee-inventor after consultation with the Contractor and with the 
written authorization of the Contractor in accordance with DOE patent 
waiver regulations, may request greater rights, including title, in an 
identified subject invention than the nonexclusive license and the 
foreign patent rights provided for in paragraph (d) of this clause, in 
accordance with the DOE patent waiver regulations. Such a request shall 
be submitted in writing to Patent Counsel with a copy to the Contracting 
Officer at the time the subject invention is first disclosed to DOE in 
accordance with subparagraph (c)(2) of this clause, or not later than 
eight (8) months after such disclosure, unless a longer period is 
authorized in writing by the Contracting Officer for good cause shown in 
writing by the Contractor. DOE may grant or refuse to grant such a 
request by the Contractor or Contractor employee-inventor. Unless 
otherwise provided in the greater rights determination, any rights in a 
subject invention obtained by the Contractor pursuant to a determination 
of greater rights are subject to a nonexclusive, nontransferable, 
irrevocable, paid-up license to the Government to practice or have 
practiced the subject invention throughout the world by or on behalf of 
the Government of the United States (including any Government agency), 
and to any reservations and conditions deemed appropriate by the 
Secretary of Energy or designee.
    (c) Subject invention disclosures--(1) Contractor procedures for 
reporting subject inventions to Contractor personnel. Subject inventions 
shall be reported to Contractor personnel responsible for patent matters 
within six (6) months of conception and/or first actual reduction to 
practice, whichever occurs first in the performance of work under this 
contract. Accordingly, the Contractor shall establish and maintain 
effective procedures for ensuring such prompt identification and timely 
disclosure of subject inventions to Contractor personnel responsible for 
patent matters, and the procedures shall include the maintenance of 
laboratory notebooks, or equivalent records, and other records that are 
reasonably necessary to document the conception and/or the first actual 
reduction to practice of subject inventions, and the maintenance of 
records demonstrating compliance with such procedures. The Contractor 
shall submit a written description of such procedures to the Contracting 
Officer, upon request, for evaluation of the effectiveness of such 
procedures by the Contracting Officer.
    (2) Subject invention disclosure. The Contractor shall disclose each 
subject invention to Patent Counsel with a copy to the Contracting 
Officer within two (2) months after the subject invention is reported to 
Contractor personnel responsible for patent matters, in accordance with 
subparagraph (c)(1) of this clause, or, if earlier, within six (6) 
months after the Contractor has knowledge of the subject invention, but 
in any event before any on sale, public use, or publication of the 
subject invention. The disclosure to DOE shall be in the form of a 
written report and shall include:
    (i) The contract number under which the subject invention was made;
    (ii) The inventor(s) of the subject invention;
    (iii) A description of the subject invention in sufficient technical 
detail to convey a clear understanding of the nature, purpose and 
operation of the subject invention, and of the physical, chemical, 
biological or electrical characteristics of the subject invention, to 
the extent known by the Contractor at the time of the disclosure;
    (iv) The date and identification of any publication, on sale or 
public use of the invention;
    (v) The date and identification of any submissions for publication 
of any manuscripts describing the invention, and a statement of whether 
the manuscript is accepted for publication, to the extent known by the 
Contractor at the time of the disclosure;
    (vi) A statement indicating whether the subject invention concerns 
exceptional circumstances pursuant to 35 U.S.C. 202(ii), related to 
national security, or subject to a treaty or an international agreement, 
to the extent known or believed by Contractor at the time of the 
disclosure;
    (vii) All sources of funding by Budget and Resources (B&R) code; and
    (viii) The identification of any agreement relating to the subject 
invention, including Cooperative Research and Development Agreements and 
Work-for-Others agreements. Unless the Contractor contends otherwise in 
writing at the time the invention is disclosed, inventions disclosed to 
DOE under

[[Page 555]]

this paragraph are deemed made in the manner specified in Sections 
(a)(1) and (a)(2) of 42 U.S.C. 5908.
    (3) Publication after disclosure. After disclosure of the subject 
invention to the DOE, the Contractor shall promptly notify Patent 
Counsel of the acceptance for publication of any manuscript describing 
the subject invention or of any expected or on sale or public use of the 
subject invention, known by the Contractor.
    (4) Contractor employee agreements. The Contractor agrees to 
require, by written agreement, its employees, other than clerical and 
nontechnical employees, to disclose promptly in writing to Contractor 
personnel identified as responsible for the administration of patent 
matters and in a format suggested by the Contractor, each subject 
invention made under this contract, and to execute all papers necessary 
to file patent applications claiming subject inventions or to establish 
the Government's rights in the subject inventions. This disclosure 
format shall at a minimum include the information required by 
subparagraph (c)(2) of this clause. The Contractor shall instruct such 
employees, through employee agreements or other suitable educational 
programs, on the importance of reporting inventions in sufficient time 
to permit the filing of patent applications prior to U.S. or foreign 
statutory bars.
    (5) Contractor procedures for reporting subject inventions to DOE. 
The Contractor agrees to establish and maintain effective procedures for 
ensuring the prompt identification and timely disclosure of subject 
inventions to DOE. The Contractor shall submit a written description of 
such procedures to the Contracting Officer, upon request, for evaluation 
of the effectiveness of such procedures by the Contracting Officer.
    (6) Duplication and disclosure of documents. The Government may 
duplicate and disclose subject invention disclosures and all other 
reports and papers furnished or required to be furnished pursuant to 
this clause; provided, however, that any such duplication or disclosure 
by the Government is subject to 35 U.S.C. 205 and 37 CFR 401.13.
    (d) Minimum rights of the Contractor--(1) Contractor License(i)--
Request for a Contractor license. Except for subject inventions that the 
Contractor fails to disclose within the time periods specified at 
subparagraph (c)(2) of this clause, the Contractor may request a 
revocable, nonexclusive, royalty-free license in each patent application 
filed in any country claiming a subject invention and any resulting 
patent in which the Government obtains title, and DOE may grant or 
refuse to grant such a request by the Contractor. If DOE grants the 
Contractor's request for a license, the Contractor's license extends 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.
    (ii) Transfer of a Contractor license. DOE shall approve any 
transfer of the Contractor's license in a subject invention, and DOE may 
determine the Contractor's license is non-transferrable, on a case-by-
case basis.
    (iii) Revocation or modification of a Contractor license. DOE may 
revoke or modify the Contractor's domestic license to the extent 
necessary to achieve expeditious practical application of the subject 
invention pursuant to an application for an exclusive license submitted 
in accordance with applicable provisions in 37 CFR Part 404 and DOE 
licensing regulations. DOE may not revoke the Contractor's domestic 
license in that field of use or the geographical areas in which the 
Contractor, its licensee, or its domestic subsidiaries or affiliates 
achieved practical applications and continues to make the benefits of 
the invention reasonably accessible to the public. DOE may revoke or 
modify the Contractor's license in any foreign country to the extent the 
Contractor, its licensees, or its domestic subsidiaries or affiliates 
failed to achieve practical application in that foreign country.
    (iv) Notice of revocation or modification of a Contractor license. 
Before revocation or modification of the license, DOE shall furnish the 
Contractor a written notice of its intention to revoke or modify the 
license, and the Contractor shall be allowed thirty (30) days from the 
date of the notice (or such other time as may be authorized by DOE for 
good cause shown by the Contractor) to show cause why the license should 
not be revoked or modified. The Contractor has the right to appeal any 
decision concerning the revocation or modification of its license, in 
accordance with applicable regulations in 37 CFR Part 404 and DOE 
licensing regulations.
    (2) Contractor's right to request foreign patent rights. If the 
Government has title to a subject invention and the Government decides 
against securing patent rights in a foreign country for the subject 
invention, the Contractor may request such foreign patent rights from 
DOE, and DOE may grant the Contractor's request, subject to a 
nonexclusive, nontransferable, irrevocable, paid-up license to the 
Government to practice or have practiced the subject invention in the 
foreign country, and any reservations and conditions deemed appropriate 
by the Secretary of Energy or designee. Such a request shall be 
submitted in writing to the Patent Counsel as part of the disclosure 
required by subparagraph (c)(2) of this clause, with a copy to the DOE 
Contracting Officer, unless a longer period is authorized in writing by 
the Contracting Officer for good cause shown in writing by the 
Contractor. DOE may grant or refuse to grant such a request, and may

[[Page 556]]

consider whether granting the Contractor's request best serves the 
interests of the United States.
    (e) Examination of records relating to inventions--(1) Contractor 
compliance. Until the expiration of three (3) years after final payment 
under this contract, the Contracting Officer or any authorized 
representative may examine any books (including laboratory notebooks), 
records, and documents and other supporting data of the Contractor, 
which the Contracting Officer or authorized representative deems 
reasonably pertinent to the discovery or identification of subject 
inventions, or to determine Contractor (and inventor) compliance with 
the requirements of this clause, including proper identification and 
disclosure of subject inventions, and establishment and maintenance of 
invention disclosure procedures.
    (2) Unreported inventions. If the Contracting Officer is aware of an 
invention that is not disclosed by the Contractor to DOE, and the 
Contracting Officer believes the unreported invention may be a subject 
invention, DOE may require the Contractor to submit to DOE a disclosure 
of the invention for a determination of ownership rights.
    (3) Confidentiality. Any examination of records under this paragraph 
is subject to appropriate conditions to protect the confidentiality of 
the information involved.
    (f) Subcontracts--(1) Subcontractor subject inventions. The 
Contractor shall not obtain rights in the subcontractor's subject 
inventions as part of the consideration for awarding a subcontract.
    (2) Inclusion of patent rights clause--non-profit organization or 
small business firm subcontractors. Unless otherwise authorized or 
directed by the Contracting Officer, the Contractor shall include the 
patent rights clause at 48 CFR 952.227-11, suitably modified to identify 
the parties in all subcontracts, at any tier, for experimental, 
developmental, demonstration or research work to be performed by a small 
business firm or domestic nonprofit organization, except subcontracts 
which are subject to exceptional circumstances in accordance with 35 
U.S.C. 202(a)(ii).
    (3) Inclusion of patent rights clause--subcontractors other than 
non-profit organizations and small business firms. Except for the 
subcontracts described in subparagraph (f)(2) of this clause, the 
Contractor shall include the patent rights clause at 48 CFR 952.227-13, 
suitably modified to identify the parties, in any contract for 
experimental, developmental, demonstration or research work.
    (4) DOE and subcontractor contract. With respect to subcontracts at 
any tier, DOE, the subcontractor, and the Contractor agree that the 
mutual obligations of the parties created by this clause constitute a 
contract between the subcontractor and DOE with respect to those matters 
covered by this clause.
    (5) Subcontractor refusal to accept terms of patent rights clause. 
If a prospective subcontractor refuses to accept the terms of a patent 
rights clause, the Contractor shall promptly submit a written notice to 
the Contracting Officer stating the subcontractor's reasons for such a 
refusal, including any relevant information for expediting disposition 
of the matter, and the Contractor shall not proceed with the subcontract 
without the written authorization of the Contracting Officer.
    (6) Notification of award of subcontract. Upon the award of any 
subcontract at any tier containing a patent rights clause, the 
Contractor shall promptly notify the Contracting Officer in writing and 
identify the subcontractor, the applicable patent rights clause, the 
work to be performed under the subcontract, and the dates of award and 
estimated completion. Upon request of the Contracting Officer, the 
Contractor shall furnish a copy of a subcontract.
    (7) Identification of subcontractor subject inventions. If the 
Contractor in the performance of this contract becomes aware of a 
subject invention made under a subcontract, the Contractor shall 
promptly notify Patent Counsel and identify the subject invention, with 
a copy of the notification and identification to the Contracting 
Officer.
    (g) Atomic energy--(1) Pecuniary awards. No claim for pecuniary 
award of compensation under the provisions of the Atomic Energy Act of 
1954, as amended, may be asserted with respect to any invention or 
discovery made or conceived in the course of or under this contract.
    (2) Patent agreements. Except as otherwise authorized in writing by 
the Contracting Officer, the Contractor shall obtain patent agreements 
to effectuate the provisions of subparagraph (g)(1) of this clause from 
all persons who perform any part of the work under this contract, except 
nontechnical personnel, such as clerical employees and manual laborers.
    (h) Publication. The Contractor shall receive approval from Patent 
Counsel prior to releasing or publishing information regarding 
scientific or technical developments conceived or first actually reduced 
to practice in the course of or under this contract, to ensure such 
release or publication does not adversely affect the patent interests of 
DOE or the Contractor.
    (i) Communications. The Contractor shall direct any notification, 
disclosure, or request provided for in this clause to the Patent Counsel 
assisting the DOE contracting activity, with a copy of the communication 
to the Contracting Officer.
    (j) Reports--(1) Interim reports. Upon DOE's request, the Contractor 
shall submit to DOE, no more frequently than annually, a list of subject 
inventions disclosed to DOE during a

[[Page 557]]

specified period, or a statement that no subject inventions were made 
during the specified period; and/or a list of subcontracts containing a 
patent clause and awarded by the Contractor during a specified period, 
or a statement that no such subcontracts were awarded during the 
specified period. The interim report shall state whether the 
Contractor's invention disclosures were submitted to DOE in accordance 
with the requirements of subparagraphs (c)(1) and (c)(5) of this clause.
    (2) Final reports. Upon DOE's request, the Contractor shall submit 
to DOE, prior to closeout of the contract or within three (3) months of 
the date of completion of the contracted work, a list of all subject 
inventions disclosed during the performance period of the contract, or a 
statement that no subject inventions were made during the contract 
performance period; and/or a list of all subcontracts containing a 
patent clause and awarded by the Contractor during the contract 
performance period, or a statement that no such subcontracts were 
awarded during the contract performance period.
    (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. Notwithstanding the acceptance or exercise by the Government 
of these rights, the Government may contest at any time the 
enforceability, validity or scope of, or title to, any rights or patents 
herein licensed.
    (l) Classified inventions--(1) Approval for filing a foreign patent 
application. The Contractor shall not file or cause to be filed an 
application or registration for a patent disclosing a subject invention 
related to classified subject matter in any country other than the 
United States without first obtaining the written approval of the 
Contracting Officer.
    (2) Transmission of classified subject matter. If in accordance with 
this clause the Contractor files a patent application in the United 
States disclosing a subject invention that is classified for reasons of 
security, the Contractor shall observe all applicable security 
regulations covering the transmission of classified subject matter. If 
the Contractor transmits a patent application disclosing a classified 
subject invention to the United States Patent and Trademark Office 
(USPTO), the Contractor shall submit a separate letter to the USPTO 
identifying the contract or contracts by agency and agreement number 
that require security classification markings to be placed on the patent 
application.
    (3) Inclusion of clause in subcontracts. The Contractor agrees to 
include the substance of this clause in subcontracts at any tier that 
cover or are likely to cover subject matter classified for reasons of 
security.
    (m) Patent functions. Upon the written request of the Contracting 
Officer or Patent Counsel, the Contractor agrees to make reasonable 
efforts to support DOE in accomplishing patent-related functions for 
work arising out of the contract, including, but not limited to, the 
prosecution of patent applications, and the determination of questions 
of novelty, patentability, and inventorship.
    (n) Annual appraisal by Patent Counsel. Patent Counsel may conduct 
an annual appraisal to evaluate the Contractor's effectiveness in 
identifying and protecting subject inventions in accordance with DOE 
policy.

                             (End of clause)



Sec. 970.5227-12  Patent rights--management and operating contracts, 
          for-profit contractor, advance class waiver.

    Insert the following clause in solicitations and contracts in 
accordance with 970.2703-1(b)(3):

     Patent Rights--Management and Operating Contracts, For-Profit 
               Contractor, Advance Class Waiver (DEC 2000)

    (a) Definitions. (1) DOE licensing regulations means the Department 
of Energy patent licensing regulations at 10 CFR Part 781.
    (2) DOE patent waiver regulations means the Department of Energy 
patent waiver regulations at 10 CFR Part 784.
    (3) Exceptional Circumstance Subject Invention means any subject 
invention in a technical field or related to a task determined by the 
Department of Energy to be subject to an exceptional circumstance under 
35 U.S.C. 202(a)(ii), and in accordance with 37 CFR 401.3(e).
    (4) Invention means any invention or discovery which is or may be 
patentable or otherwise protectable under title 35 of the United States 
Code, or any novel variety of plant which is or may be protected under 
the Plant Variety Protection Act (7 U.S.C. 2321, et seq.).

[[Page 558]]

    (5) Made when used in relation to any invention means the conception 
or first actual reduction to practice of such invention.
    (6) Patent Counsel means DOE Patent Counsel assisting the 
contracting activity.
    (7) Practical application means to manufacture, in the case of a 
composition or product; to practice, in the case of a process or method; 
or to operate, in the case of a machine or system; and, in each case, 
under such conditions as to establish that the invention is being 
utilized and that its benefits are, to the extent permitted by law or 
Government regulations, available to the public on reasonable terms.
    (8) Subject Invention means any invention of the contractor 
conceived or first actually reduced to practice in the course of or 
under this contract, provided that in the case of a variety of plant, 
the date of determination (as defined in section 41(d) of the Plant 
Variety Protection Act, 7 U.S.C. 2401(d)) shall also occur during the 
period of contract performance.
    (b) Allocation of Principal Rights--(1) Assignment to the 
Government. Except to the extent that rights are retained by the 
Contractor by the granting of an advance class waiver pursuant to 
subparagraph (b)(2) of this clause or a determination of greater rights 
pursuant to subparagraph (b)(7) of this clause, the Contractor agrees to 
assign to the Government the entire right, title, and interest 
throughout the world in and to each subject invention.
    (2) Advance class waiver of Government rights to the Contractor. DOE 
may grant to the Contractor an advance class waiver of Government rights 
in any or all subject inventions, at the time of execution of the 
contract, such that the Contractor may elect to retain the entire right, 
title and interest throughout the world to such waived subject 
inventions, in accordance with the terms and conditions of the advance 
class waiver. Unless otherwise provided by the terms of the advance 
class waiver, any rights in a subject invention retained by the 
Contractor under an advance class waiver are subject to 35 U.S.C. 203 
and the provisions of this clause, including the Government license 
provided for in subparagraph (b)(3) of this clause, and any reservations 
and conditions deemed appropriate by the Secretary of Energy or 
designee.
    (3) Government license. With respect to any subject invention to 
which the Contractor retains title, either under an advance class waiver 
pursuant to subparagraph (b)(2) or a determination of greater rights 
pursuant to subparagraph (b)(7) of this clause, the Government has a 
nonexclusive, nontransferable, irrevocable, paid-up license to practice 
or have practiced for or on behalf of the United States the subject 
invention throughout the world.
    (4) Foreign patent rights. If the Government has title to a subject 
invention and the Government decides against securing patent rights in a 
foreign country for the subject invention, the Contractor may request 
such foreign patent rights from DOE, and DOE may grant the Contractor's 
request, subject to 35 U.S.C. 203 and the provisions of this clause, 
including the Government license provided for in subparagraph (b)(3) of 
this clause, and any reservations and conditions deemed appropriate by 
the Secretary of Energy or designee.
    (5) Exceptional circumstance subject inventions. Except to the 
extent that rights are retained by the Contractor by a determination of 
greater rights in accordance with subparagraph (b)(7) of this clause, 
the Contractor does not have the right to retain title to any 
exceptional circumstance subject inventions and agrees to assign to the 
Government the entire right, title, and interest, throughout the world, 
in and to any exceptional circumstance subject inventions.
    (i) Inventions within or relating to the following fields of 
technology are exceptional circumstance subject inventions:
    (A) Uranium enrichment technology;
    (B) Storage and disposal of civilian high-level nuclear waste and 
spent fuel technology; and
    (C) National security technologies classified or sensitive under 
Section 148 of the Atomic Energy Act (42 U.S.C. 2168).
    (ii) Inventions made under any agreement, contract or subcontract 
related to the following initiatives or programs are exceptional 
circumstance subject inventions:
    (A) DOE Steel Initiative and Metals Initiative;
    (B) U.S. Advanced Battery Consortium; and
    (C) Any funding agreement which is funded in part by the Electric 
Power Research Institute (EPRI) or the Gas Research Institute (GRI).
    (iii) DOE reserves the right to unilaterally amend this contract to 
modify, by deletion or insertion, technical fields, programs, 
initiatives, and/or other classifications for the purpose of defining 
DOE exceptional circumstance subject inventions.
    (6) Treaties and international agreements. Any rights acquired by 
the Contractor in subject inventions are subject to any disposition of 
right, title, or interest in or to subject inventions provided for in 
treaties or international agreements identified at Appendix [Insert 
Reference], to this contract. DOE reserves the right to unilaterally 
amend this contract to identify specific treaties or international 
agreements entered into or to be entered into by the Government after 
the effective date of this contract and to effectuate those license or 
other rights which are necessary for the Government to meet its 
obligations to foreign governments,

[[Page 559]]

their nationals and international organizations under such treaties or 
international agreements with respect to subject inventions made after 
the date of the amendment.
    (7) Contractor request for greater rights. The Contractor may 
request greater rights in an identified subject invention, including an 
exceptional circumstance subject invention, to which the Contractor does 
not have the right to elect to retain title, in accordance with the DOE 
patent waiver regulations, by submitting such a request in writing to 
Patent Counsel with a copy to the Contracting Officer at the time the 
subject invention is first disclosed to DOE pursuant to subparagraph 
(c)(1) of this clause, or not later than eight (8) months after such 
disclosure, unless a longer period is authorized in writing by the 
Contracting Officer for good cause shown in writing by the Contractor. 
DOE may grant or refuse to grant such a request by the Contractor. 
Unless otherwise provided in the greater rights determination, any 
rights in a subject invention obtained by the Contractor under a 
determination of greater rights is subject to 35 U.S.C. 203 and the 
provisions of this clause, including the Government license provided for 
in subparagraph (b)(3) of this clause, and to any reservations and 
conditions deemed appropriate by the Secretary of Energy or designee.
    (8) Contractor employee-inventor rights. If the Contractor does not 
elect to retain title to a subject invention or does not request greater 
rights in a subject invention, including an exceptional circumstance 
subject invention, to which the Contractor does not have the right to 
elect to retain title, a Contractor employee-inventor, after 
consultation with the Contractor and with written authorization from the 
Contractor in accordance with 10 CFR 784.9(b)(4), may request greater 
rights, including title, in the subject invention or the exceptional 
circumstance invention from DOE, and DOE may grant or refuse to grant 
such a request by the Contractor employee-inventor.
    (9) Government assignment of rights in Government employees' subject 
inventions. If a DOE employee is a joint inventor of a subject invention 
to which the Contractor has rights, DOE may assign or refuse to assign 
any rights in the subject invention acquired by the Government from the 
DOE employee to the Contractor, consistent with 48 CFR 27.304-1(d). 
Unless otherwise provided in the assignment, the rights assigned to the 
Contractor are subject to the Government license provided for in 
subparagraph (b)(3) of this clause, and to any provision of this clause 
applicable to subject inventions in which rights are retained by the 
Contractor, and to any reservations and conditions deemed appropriate by 
the Secretary of Energy or designee. The Contractor shall share 
royalties collected for the manufacture, use or sale of the subject 
invention with the DOE employee.
    (c) Subject invention disclosure, election of title, and filing of 
patent application by Contractor--(1) Subject invention disclosure. The 
Contractor shall disclose each subject invention to Patent Counsel with 
a copy to the Contracting Officer within two (2) months after an 
inventor discloses it in writing to Contractor personnel responsible for 
patent matters or, if earlier, within six (6) months after the 
Contractor has knowledge of the subject invention, but in any event 
before any on sale, public use, or publication of the subject invention. 
The disclosure to DOE shall be in the form of a written report and shall 
include:
    (i) The contract number under which the subject invention was made;
    (ii) The inventor(s) of the subject invention;
    (iii) A description of the subject invention in sufficient technical 
detail to convey a clear understanding of the nature, purpose and 
operation of the subject invention, and of the physical, chemical, 
biological or electrical characteristics of the subject invention, to 
the extent known by the Contractor at the time of the disclosure;
    (iv) The date and identification of any publication, on sale or 
public use of the invention;
    (v) The date and identification of any submissions for publication 
of any manuscripts describing the invention, and a statement of whether 
the manuscript is accepted for publication, to the extent known by the 
Contractor at the time of the disclosure;
    (vi) A statement indicating whether the subject invention is an 
exceptional circumstance subject invention, related to national 
security, or subject to a treaty or an international agreement, to the 
extent known or believed by Contractor at the time of the disclosure;
    (vii) All sources of funding by Budget and Resources (B&R) code; and
    (viii) The identification of any agreement relating to the subject 
invention, including Cooperative Research and Development Agreements and 
Work-for-Others agreements.
    Unless the Contractor contends otherwise in writing at the time the 
invention is disclosed, inventions disclosed to DOE under this paragraph 
are deemed made in the manner specified in Sections (a)(1) and (a)(2) of 
42 U.S.C. 5908.
    (2) Publication after disclosure. After disclosure of the subject 
invention to the DOE, the Contractor shall promptly notify Patent 
Counsel of the acceptance for publication of any manuscript describing 
the subject invention or of any expected or on sale or public use of the 
subject invention, known by the

[[Page 560]]

Contractor. The Contractor shall obtain approval from Patent Counsel 
prior to any release or publication of information concerning an 
exceptional circumstance subject invention or any subject invention 
related to a treaty or international agreement.
    (3) Election by the Contractor under an advance class waiver. If the 
Contractor has the right to elect to retain title to subject inventions 
under an advance class waiver granted in accordance with subparagraph 
(b)(2) of this clause, and unless otherwise provided for by the terms of 
the advance class waiver, the Contractor shall elect in writing whether 
or not to retain title to any subject invention by notifying DOE within 
two (2) years of the date of the disclosure of the subject invention to 
DOE, in accordance with subparagraph (c)(1) of this clause. The 
notification shall identify the advance class waiver, state the 
countries, including the United States, in which rights are retained, 
and certify that the subject invention is not an exceptional 
circumstance subject invention or subject to a treaty or international 
agreement. If a publication, on sale or public use of the subject 
invention has initiated the 1-year statutory period under 35 U.S.C. 
102(b), the period for election may be shortened by DOE to a date that 
is no more than sixty (60) days prior to the end of the 1-year statutory 
period.
    (4) Filing of patent applications by the Contractor under an advance 
class waiver. If the Contractor has the right to retain title to a 
subject invention in accordance with an advance class waiver pursuant to 
subparagraph (b)(2) of this clause or a determination of greater rights 
pursuant to paragraph (b)(7) of this clause, and unless otherwise 
provided for by the terms of the advance class waiver or greater rights 
determination, the Contractor shall file an initial patent application 
claiming the subject invention to which it retains title either within 
one (1) year after the Contractor's election to retain or grant of title 
to the subject invention or prior to the end of any 1-year statutory 
period under 35 U.S.C. 102(b), whichever occurs first. Any patent 
applications filed by the Contractor in foreign countries or 
international patent offices shall be filed within either ten (10) 
months of the corresponding initial patent application or, if such 
filing has been prohibited by a Secrecy Order, within six (6) months 
from the date permission is granted by the Commissioner of Patents and 
Trademarks to file foreign patent applications.
    (5) Submission of patent information and documents. If the 
Contractor files a domestic or foreign patent application claiming a 
subject invention, the Contractor shall promptly submit to Patent 
Counsel the following information and documents:
    (i) The filing date, serial number, title, and a copy of the patent 
application (including an English-language version if filed in a 
language other than English);
    (ii) An executed and approved instrument fully confirmatory of all 
Government rights in the subject invention; and
    (iii) The patent number, issue date, and a copy of any issued patent 
claiming the subject invention.
    (6) Contractor's request for an extension of time. Requests for an 
extension of the time to disclose a subject invention, to elect to 
retain title to a subject invention, or to file a patent application 
under subparagraphs (c)(1), (3), and (4) of this clause may be granted 
at the discretion of Patent Counsel or DOE.
    (7) Duplication and disclosure of documents. The Government may 
duplicate and disclose subject invention disclosures and all other 
reports and papers furnished or required to be furnished pursuant to 
this clause; provided, however, that any such duplication or disclosure 
by the Government is subject to 35 U.S.C. 205 and 37 CFR part 40.
    (d) Conditions when the Government may obtain title notwithstanding 
an advance class waiver--(1) Return of title to a subject invention. If 
the Contractor requests that DOE acquire title or rights from the 
Contractor in a subject invention, including an exceptional circumstance 
subject invention, to which the Contractor retained title or rights 
under subparagraph (b)(2) or subparagraph (b)(7) of this clause, DOE may 
acquire such title or rights from the Contractor, or DOE may decide 
against acquiring such title or rights from the Contractor, at DOE's 
sole discretion.
    (2) Failure to disclose or elect to retain title. Title vests in DOE 
and DOE may request, in writing, a formal assignment of title to a 
subject invention from the Contractor, and the Contractor shall convey 
title to the subject invention to DOE, if the Contractor elects not to 
retain title to the subject invention under an advance class waiver, or 
the Contractor fails to disclose or fails to elect to retain title to 
the subject invention within the times specified in subparagraphs (c)(1) 
and (c)(3) of this clause.
    (3) Failure to file domestic or foreign patent applications. In 
those countries in which the Contractor fails to file a patent 
application within the times specified in subparagraph (c)(4) of this 
clause, DOE may request, in writing, title to the subject invention from 
the Contractor, and the Contractor shall convey title to the subject 
invention to DOE; provided, however, that if the Contractor has filed a 
patent application in any country after the times specified in 
subparagraph (c)(4) of this clause, but prior to its receipt of DOE's 
written request for title, the Contractor continues to retain title in 
that country.
    (4) Discontinuation of patent protection by the Contractor. If the 
Contractor decides to

[[Page 561]]

discontinue the prosecution of a patent application, the payment of 
maintenance fees, or the defense of a subject invention in a 
reexamination or opposition proceeding, in any country, DOE may request, 
in writing, title to the subject invention from the Contractor, and the 
Contractor shall convey title to the subject invention to DOE.
    (5) Termination of advance class waiver. DOE may request, in 
writing, title to any subject inventions from the Contractor, and the 
Contractor shall convey title to the subject inventions to DOE, if the 
advance class waiver granted under subparagraph (b)(2) of this clause is 
terminated under paragraph (u) of this clause.
    (e) Minimum rights of the Contractor--(1) Request for a Contractor 
license. Except for subject inventions that the Contractor fails to 
disclose within the time periods specified at subparagraph (c)(1) of 
this clause, the Contractor may request a revocable, nonexclusive, 
royalty-free license in each patent application filed in any country 
claiming a subject invention and any resulting patent in which the 
Government obtains title, and DOE may grant or refuse to grant such a 
request by the Contractor. If DOE grants the Contractor's request for a 
license, the Contractor's license extends 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.
    (2) Transfer of a Contractor license. DOE shall approve any transfer 
of the Contractor's license in a subject invention, and DOE may 
determine that the Contractor's license is non-transferrable, on a case-
by-case basis.
    (3) Revocation or modification of a Contractor license. DOE may 
revoke or modify the Contractor's domestic license to the extent 
necessary to achieve expeditious practical application of the subject 
invention pursuant to an application for an exclusive license submitted 
in accordance with applicable provisions in 37 CFR Part 404 and DOE 
licensing regulations. DOE may not revoke the Contractor's domestic 
license in that field of use or the geographical areas in which the 
Contractor, its licensees or its domestic subsidiaries or affiliates 
have achieved practical applications and continues to make the benefits 
of the invention reasonably accessible to the public. DOE may revoke or 
modify the Contractor's license in any foreign country to the extent the 
Contractor, its licensees, or its domestic subsidiaries or affiliates 
failed to achieve practical application in that foreign country.
    (4) Notice of revocation or modification of a Contractor license. 
Before revocation or modification of the license, DOE shall furnish the 
Contractor a written notice of its intention to revoke or modify the 
license, and the Contractor shall be allowed thirty (30) days from the 
date of the notice (or such other time as may be authorized by DOE for 
good cause shown by the Contractor) to show cause why the license should 
not be revoked or modified. The Contractor has the right to appeal any 
decision concerning the revocation or modification of its license, in 
accordance with applicable regulations in 37 CFR part 404 and DOE 
licensing regulations.
    (f) Contractor action to protect the Government's interest--(1) 
Execution and delivery of title or license instruments. The Contractor 
agrees to execute or have executed, and to deliver promptly to DOE all 
instruments necessary to accomplish the following actions:
    (i) Establish or confirm the Government's rights throughout the 
world in subject inventions to which the Contractor elects to retain 
title;
    (ii) Convey title in a subject invention to DOE pursuant to 
subparagraph (b)(5) and paragraph (d) of this clause; or
    (iii) Enable the Government to obtain patent protection throughout 
the world in a subject invention to which the Government has title.
    (2) Contractor employee agreements. The Contractor agrees to 
require, by written agreement, its employees, other than clerical and 
nontechnical employees, to disclose promptly in writing to Contractor 
personnel identified as responsible for the administration of patent 
matters and in a format suggested by the Contractor, each subject 
invention made under this contract, and to execute all papers necessary 
to file patent applications claiming subject inventions or to establish 
the Government's rights in the subject inventions. This disclosure 
format shall at a minimum include the information required by 
subparagraph (c)(1) of this clause. The Contractor shall instruct such 
employees, through employee agreements or other suitable educational 
programs, on the importance of reporting inventions in sufficient time 
to permit the filing of patent applications prior to U.S. or foreign 
statutory bars.
    (3) Contractor procedures for reporting subject inventions to DOE. 
The Contractor agrees to establish and maintain effective procedures for 
ensuring the prompt identification and timely disclosure of subject 
inventions to DOE. The Contractor shall submit a written description of 
such procedures to the Contracting Officer, upon request, for evaluation 
and approval of the effectiveness of such procedures by the Contracting 
Officer.
    (4) Notification of discontinuation of patent protection. With 
respect to any subject invention for which the Contractor has 
responsibility for patent prosecution, the Contractor shall notify 
Patent Counsel of any decision to discontinue the prosecution of a 
patent application, payment of maintenance fees, or

[[Page 562]]

defense of a subject invention in a reexamination or opposition 
proceeding, in any country, not less than thirty (30) days before the 
expiration of the response period for any action required by the 
corresponding patent office.
    (5) Notification of Government rights. With respect to any subject 
invention to which the Contractor has title, the Contractor agrees to 
include, within the specification of any United States patent 
application and within any patent issuing thereon claiming a subject 
invention, the following statement, ``This invention was made with 
Government support under (identify the contract) awarded by the United 
States Department of Energy. The Government has certain rights in the 
invention.''
    (6) Avoidance of royalty charges. If the Contractor licenses a 
subject invention, the Contractor agrees to avoid royalty charges on 
acquisitions involving Government funds, including funds derived through 
a Military Assistance Program of the Government or otherwise derived 
through the Government, to refund any amounts received as royalty 
charges on a subject invention in acquisitions for, or on behalf of, the 
Government, and to provide for such refund in any instrument 
transferring rights in the subject invention to any party.
    (7) DOE approval of assignment of rights. Rights in a subject 
invention in the United States may not be assigned by the Contractor 
without the approval of DOE.
    (8) Small business firm licensees. The Contractor shall make efforts 
that are reasonable under the circumstances to attract licensees of 
subject inventions that are small business firms, and may give a 
preference to a small business firm when licensing a subject invention 
if the Contractor determines that the small business firm has a plan or 
proposal for marketing the invention which, if executed, is equally as 
likely to bring the invention to practical application as any plans or 
proposals from applicants that are not small business firms; provided, 
the Contractor is also satisfied that the small business firm has the 
capability and resources to carry out its plan or proposal. The decision 
as to whether to give a preference in any specific case is at the 
discretion of the Contractor.
    (9) Contractor licensing of subject inventions. To the extent that 
it provides the most effective technology transfer, licensing of subject 
inventions shall be administered by Contractor employees on location at 
the facility.
    (g) Subcontracts--(1) Subcontractor subject inventions. The 
Contractor shall not obtain rights in the subcontractor's subject 
inventions as part of the consideration for awarding a subcontract.
    (2) Inclusion of patent rights clause--non-profit organization or 
small business firm subcontractors. Unless otherwise authorized or 
directed by the Contracting Officer, the Contractor shall include the 
patent rights clause at 48 CFR 952.227-11, suitably modified to identify 
the parties, in all subcontracts, at any tier, for experimental, 
developmental, demonstration or research work to be performed by a small 
business firm or domestic nonprofit organization, except subcontracts 
which are subject to exceptional circumstances in accordance with 35 
U.S.C. 202 and subparagraph (b)(5) of this clause.
    (3) Inclusion of patent rights clause--subcontractors other than 
non-profit organizations or small business firms. Except for the 
subcontracts described in subparagraph (g)(2) of this clause, the 
Contractor shall include the patent rights clause at 48 CFR 952.227-13, 
suitably modified to identify the parties and any applicable exceptional 
circumstance, in any contract for experimental, developmental, 
demonstration or research work.
    (4) DOE and subcontractor contract. With respect to subcontracts at 
any tier, DOE, the subcontractor and Contractor agree that the mutual 
obligations of the parties created by this clause constitute a contract 
between the subcontractor and DOE with respect to those matters covered 
by this clause; provided, however, that nothing in this paragraph is 
intended to confer any jurisdiction under the Contract Disputes Act in 
connection with proceedings under paragraph (j) of this clause.
    (5) Subcontractor refusal to accept terms of patent rights clause. 
If a prospective subcontractor refuses to accept the terms of a patent 
rights clause, the Contractor shall promptly submit a written notice to 
the Contracting Officer stating the subcontractor's reasons for such 
refusal and including relevant information for expediting disposition of 
the matter; and the Contractor shall not proceed with the subcontract 
without the written authorization of the Contracting Officer.
    (6) Notification of award of subcontract. Upon the award of any 
subcontract at any tier containing a patent rights clause, the 
Contractor shall promptly notify the Contracting Officer in writing and 
identify the subcontractor, the applicable patent rights clause, the 
work to be performed under the subcontract, and the dates of award and 
estimated completion. Upon request of the Contracting Officer, the 
Contractor shall furnish a copy of a subcontract.
    (7) Identification of subcontractor subject inventions. If the 
Contractor in the performance of this contract becomes aware of a 
subject invention made under a subcontract, the Contractor shall 
promptly notify Patent Counsel and identify the subject invention, with 
a copy of the notification and identification to the Contracting 
Officer.
    (h) Reporting on utilization of subject inventions. Upon request by 
DOE, the Contractor

[[Page 563]]

agrees to submit periodic reports, no more frequently than annually, 
describing the utilization of a subject invention or efforts made by the 
Contractor or its licensees or assignees to obtain utilization of the 
subject invention. The reports shall include information regarding the 
status of development, date of first commercial sale or use, gross 
royalties received by the Contractor, and other data and information 
reasonably specified by DOE. Upon request by DOE, the Contractor also 
agrees to provide reports in connection with any march-in proceedings 
undertaken by DOE, in accordance with paragraph (j) of this clause. If 
any data or information reported by the Contractor in accordance with 
this provision is considered privileged and confidential by the 
Contractor, its licensee, or assignee and the Contractor properly marks 
the data or information privileged or confidential, DOE agrees not to 
disclose such information to persons outside the Government, to the 
extent permitted by law.
    (i) Preference for United States industry. Notwithstanding any other 
provision of this clause the Contractor agrees that with respect to any 
subject invention in which it retains title, neither it nor any assignee 
may grant to any person the exclusive right to use or sell any subject 
invention in the United States unless such person agrees that any 
products embodying the subject invention or produced through the use of 
the subject invention will be manufactured substantially in the United 
States. However, in individual cases, DOE may waive the requirement for 
such an agreement upon a showing by the Contractor or its assignee that 
reasonable but unsuccessful efforts have been made to grant licenses on 
similar terms to potential licensees that would be likely to manufacture 
substantially in the United States or that under the circumstances 
domestic manufacture is not commercially feasible.
    (j) March-In rights. With respect to any subject invention to which 
the Contractor has elected to retain or is granted title, DOE may, in 
accordance with the procedures in the DOE patent waiver regulations, 
require the Contractor, an assignee or exclusive licensee of a subject 
invention to grant a nonexclusive, partially exclusive or exclusive 
license in any field of use to a responsible applicant or applicants, 
upon terms that are reasonable under the circumstances. If the 
Contractor, assignee or exclusive licensee refuses such a request, DOE 
has the right to grant such a license itself if DOE determines that--
    (1) Such action is necessary because the Contractor or assignee has 
not taken, or is not expected to take within a reasonable time, 
effective steps to achieve practical application of the subject 
invention in such field of use;
    (2) Such action is necessary to alleviate health or safety needs 
that are not reasonably satisfied by the Contractor, assignee, or their 
licensees;
    (3) Such action is necessary to meet requirements for public use 
specified by government regulations and such requirements are not 
reasonably satisfied by the Contractor, assignee, or licensees; or
    (4) Such action is necessary because the agreement to substantially 
manufacture in the United States and required by paragraph (i) of this 
clause has neither been obtained nor waived or because a licensee of the 
exclusive right to use or sell any subject invention in the United 
States is in breach of such agreement.
    (k) Communications. The Contractor shall direct any notification, 
disclosure, or request provided for in this clause to the Patent Counsel 
identified in the contract.
    (l) Reports--(1) Interim reports. Upon DOE's request, the Contractor 
shall submit to DOE, no more frequently than annually, a list of subject 
inventions disclosed to DOE during a specified period, or a statement 
that no subject inventions were made during the specified period; and/or 
a list of subcontracts containing a patent clause and awarded by the 
Contractor during a specified period, or a statement that no such 
subcontracts were awarded during the specified period. The interim 
report shall state whether the Contractor's invention disclosures were 
submitted to DOE in accordance with the requirements of subparagraphs 
(f)(3) and (f)(4) of this clause.
    (2) Final reports. Upon DOE's request, the Contractor shall submit 
to DOE, prior to closeout of the contract or within three (3) months of 
the date of completion of the contracted work, a list of all subject 
inventions disclosed during the performance period of the contract, or a 
statement that no subject inventions were made during the contract 
performance period; and/or a list of all subcontracts containing a 
patent clause and awarded by the Contractor during the contract 
performance period, or a statement that no such subcontracts were 
awarded during the contract performance period.
    (m) 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

[[Page 564]]

or have practiced by or for the Government at the facility, and (2) to 
transfer such license with the transfer of that facility. 
Notwithstanding the acceptance or exercise by the Government of these 
rights, the Government may contest at any time the enforceability, 
validity or scope of, or title to, any rights or patents herein 
licensed.
    (n) Atomic energy--(1) Pecuniary awards. No claim for pecuniary 
award of compensation under the provisions of the Atomic Energy Act of 
1954, as amended, may be asserted with respect to any invention or 
discovery made or conceived in the course of or under this contract.
    (2) Patent agreements. Except as otherwise authorized in writing by 
the Contracting Officer, the Contractor shall obtain patent agreements 
to effectuate the provisions of subparagraph (o)(1) of this clause from 
all persons who perform any part of the work under this contract, except 
nontechnical personnel, such as clerical employees and manual laborers.
    (o) Classified inventions--(1) Approval for filing a foreign patent 
application. The Contractor shall not file or cause to be filed an 
application or registration for a patent disclosing a subject invention 
related to classified subject matter in any country other than the 
United States without first obtaining the written approval of the 
Contracting Officer.
    (2) Transmission of classified subject matter. If in accordance with 
this clause the Contractor files a patent application in the United 
States disclosing a subject invention that is classified for reasons of 
security, the Contractor shall observe all applicable security 
regulations covering the transmission of classified subject matter. If 
the Contractor transmits a patent application disclosing a classified 
subject invention to the United States Patent and Trademark Office 
(USPTO), the Contractor shall submit a separate letter to the USPTO 
identifying the contract or contracts by agency and agreement number 
that require security classification markings to be placed on the patent 
application.
    (3) Inclusion of clause in subcontracts. The Contractor agrees to 
include the substance of this clause in subcontracts at any tier that 
cover or are likely to cover subject matter classified for reasons of 
security.
    (p) Examination of records relating to inventions--(1) Contractor 
compliance. Until the expiration of three (3) years after final payment 
under this contract, the Contracting Officer or any authorized 
representative may examine any books (including laboratory notebooks), 
records, and documents and other supporting data of the Contractor, 
which the Contracting Officer or authorized representative deems 
reasonably pertinent to the discovery or identification of subject 
inventions, including exceptional circumstance subject inventions, or to 
determine Contractor (and inventor) compliance with the requirements of 
this clause, including proper identification and disclosure of subject 
inventions, and establishment and maintenance of invention disclosure 
procedures.
    (2) Unreported inventions. If the Contracting Officer is aware of an 
invention that is not disclosed by the Contractor to DOE, and the 
Contracting Officer believes the unreported invention may be a subject 
invention, DOE may require the Contractor to submit to DOE a disclosure 
of the invention for a determination of ownership rights.
    (3) Confidentiality. Any examination of records under this paragraph 
is subject to appropriate conditions to protect the confidentiality of 
the information involved.
    (4) Power of inspection. With respect to a subject invention for 
which the Contractor has responsibility for patent prosecution, the 
Contractor shall furnish the Government, upon request by DOE, an 
irrevocable power to inspect and make copies of a prosecution file for 
any patent application claiming the subject invention.
    (q) Patent functions. Upon the written request of the Contracting 
Officer or Patent Counsel, the Contractor agrees to make reasonable 
efforts to support DOE in accomplishing patent-related functions for 
work arising out of the contract, including, but not limited to, the 
prosecution of patent applications, and the determination of questions 
of novelty, patentability, and inventorship.
    (r) Educational awards subject to 35 U.S.C. 212. The Contractor 
shall notify the Contracting Officer prior to the placement of any 
person subject to 35 U.S.C. 212 in an area of technology or task (1) 
related to exceptional circumstance technology or (2) any person who is 
subject to treaties or international agreements as set forth in 
paragraph (b)(6) of this clause or to agreements other than funding 
agreements. The Contracting Officer may disapprove of any such 
placement.
    (s) Annual appraisal by Patent Counsel. Patent Counsel may conduct 
an annual appraisal to evaluate the Contractor's effectiveness in 
identifying and protecting subject inventions in accordance with DOE 
policy.
    (t) Publication. The Contractor shall receive approval from Patent 
Counsel prior to releasing or publishing information regarding 
scientific or technical developments conceived or first actually reduced 
to practice in the course of or under this contract, to ensure such 
release or publication does not adversely affect the patent rights of 
DOE or the Contractor.
    (u) Termination of contractor's advance class waiver. If a request 
by the Contractor for an

[[Page 565]]

advance class waiver pursuant to subparagraph (b)(2) of this clause or a 
determination of greater rights pursuant to paragraph (c) of this clause 
contains false material statements or fails to disclose material facts, 
and DOE relies on the false statements or omissions in granting the 
Contractor's request, the waiver or grant of any Government rights (in 
whole or in part) to the subject invention(s) may be terminated at the 
discretion of the Secretary of Energy or designee. Prior to termination, 
DOE shall provide the Contractor with written notification of the 
termination, including a statement of facts in support of the 
termination, and the Contractor shall be allowed thirty (30) days, or a 
longer period authorized by the Secretary of Energy or designee for good 
cause shown in writing by the Contractor, to show cause for not 
terminating the waiver or grant. Any termination of an advance class 
waiver or a determination of greater rights is subject to the 
Contractor's license as provided for in paragraph (f) of this clause.

                             (End of clause)

    Alternate 1 Weapons Related Subject Inventions. As prescribed at 
970.2703-2(g), insert the following as subparagraphs (a)(9)and (b)(10), 
respectively:

    (a) Definitions. (9) Weapons Related Subject Invention means any 
subject invention conceived or first actually reduced to practice in the 
course of or under work funded by or through defense programs, including 
Department of Defense and intelligence reimbursable work, or the Naval 
Nuclear Propulsion Program of the Department of Energy or the National 
Nuclear Security Administration.
    (b) Allocation of Principal Rights. (10) Weapons related subject 
inventions. Except to the extent that DOE is solely satisfied that the 
Contractor meets certain procedural requirements and DOE grants rights 
to the Contractor in weapons related subject inventions, the Contractor 
does not have a right to retain title to any weapons related subject 
inventions.

                           (End of alternate)

[65 FR 81009, Dec. 22, 2000, as amended at 67 FR 48571, July 25, 2002]



Sec. 970.5228-1  Insurance--litigation and claims.

    As prescribed in 970.2803-2, insert the following clause:

               Insurance--Litigation and Claims (JUL 2013)

    (a) The contractor must comply with 10 CFR part 719, Contractor 
Legal Management Requirements, if applicable.
    (b)(1) Except as provided in paragraph (b)(2) of this clause, the 
contractor shall procure and maintain such bonds and insurance as 
required by law or approved in writing by the Contracting Officer.
    (2) The contractor may, with the approval of the Contracting 
Officer, maintain a self-insurance program in accordance with FAR 
28.308; provided that, with respect to workers' compensation, the 
contractor is qualified pursuant to statutory authority.
    (3) All bonds and insurance required by this clause shall be in a 
form and amount and for those periods as the Contracting Officer may 
require or approve and with sureties and insurers approved by the 
Contracting Officer.
    (c) The contractor agrees to submit for the Contracting Officer's 
approval, to the extent and in the manner required by the Contracting 
Officer, any other bonds and insurance that are maintained by the 
contractor in connection with the performance of this contract and for 
which the contractor seeks reimbursement. If an insurance cost (whether 
a premium for commercial insurance or related to self-insurance) 
includes a portion covering costs made unallowable elsewhere in the 
contract, and the share of the cost for coverage for the unallowable 
cost is determinable, the portion of the cost that is otherwise an 
allowable cost under this contract is reimbursable to the extent 
determined by the Contracting Officer.
    (d) Except as provided in paragraph (f) of this clause, or 
specifically disallowed elsewhere in this contract, the contractor shall 
be reimbursed--
    (1) For that portion of the reasonable cost of bonds and insurance 
allocable to this contract required in accordance with contract terms or 
approved under this clause, and
    (2) For liabilities (and reasonable expenses incidental to such 
liabilities, including litigation costs) to third persons not 
compensated by insurance without regard to the clause of this contract 
entitled ``Obligation of Funds.''
    (e) The Government's liability under paragraph (d) of this clause is 
subject to the availability of appropriated funds. Nothing in this 
contract shall be construed as implying that the Congress will, at a 
later date, appropriate funds sufficient to meet deficiencies.
    (f)(1) Notwithstanding any other provision of this contract, the 
contractor shall not be reimbursed for liabilities to third parties, 
including contractor employees, and directly associated costs which may 
include but are

[[Page 566]]

not limited to litigation costs, counsel fees, judgments and 
settlements--
    (i) Which are otherwise unallowable by law or the provisions of this 
contract, including the cost reimbursement limitations contained in 48 
CFR part 31, as supplemented by 48 CFR 970.31;
    (ii) For which the contractor has failed to insure or to maintain 
insurance as required by law, this contract, or by the written direction 
of the Contracting Officer; or
    (iii) Which were caused by contractor managerial personnel's--
    (A) Willful misconduct;
    (B) Lack of good faith; or
    (C) Failure to exercise prudent business judgment, which means 
failure to act in the same manner as a prudent person in the conduct of 
competitive business; or, in the case of a non-profit educational 
institution, failure to act in the manner that a prudent person would 
under the circumstances prevailing at the time the decision to incur the 
cost is made.
    (2) The term ``contractor's managerial personnel'' is defined in the 
Property clause in this contract.
    (g)(1) All litigation costs, including counsel fees, judgments and 
settlements shall be segregated and accounted for by the contractor 
separately. If the Contracting Officer provisionally disallows such 
costs, then the contractor may not use funds advanced by DOE under the 
contract to finance the litigation.
    (2) Punitive damages are not allowable unless the act or failure to 
act which gave rise to the liability resulted from compliance with 
specific terms and conditions of the contract or written instructions 
from the Contracting Officer.
    (3) The portion of the cost of insurance obtained by the contractor 
that is allocable to coverage of liabilities referred to in paragraph 
(f) of this clause is not allowable.
    (h) The contractor may at its own expense and not as an allowable 
cost procure for its own protection insurance to compensate the 
contractor for any unallowable or non-reimbursable costs incurred in 
connection with contract performance.

                             (End of clause)

[78 FR 25817, May 3, 2013]



Sec. 970.5229-1  State and local taxes.

    As prescribed in 970.2904-1(b), insert the following clause in 
management and operating contracts. The requirement for the notice 
prescribed in paragraph (a) of the clause may be broadened to include 
all State and local taxes which may be claimed as allowable costs when 
considered to be appropriate.

                    State and Local Taxes (DEC 2000)

    (a) The Contractor agrees to notify the Contracting Officer of any 
State or local tax, fee, or charge levied or purported to be levied on 
or collected from the Contractor with respect to the contract work, any 
transaction thereunder, or property in the custody or control of the 
Contractor and constituting an allowable item of cost if due and 
payable, but which the Contractor has reason to believe, or the 
Contracting Officer has advised the Contractor, is or may be 
inapplicable or invalid; and the Contractor further agrees to refrain 
from paying any such tax, fee, or charge unless authorized in writing by 
the Contracting Officer. Any State or local tax, fee, or charge paid 
with the approval of the Contracting Officer or on the basis of advice 
from the Contracting Officer that such tax, fee, or charge is applicable 
and valid, and which would otherwise be an allowable item of cost, shall 
not be disallowed as an item of cost by reason of any subsequent ruling 
or determination that such tax, fee, or charge was in fact inapplicable 
or invalid.
    (b) The Contractor agrees to take such action as may be required or 
approved by the Contracting Officer to cause any State or local tax, 
fee, or charge which would be an allowable cost to be paid under 
protest; and to take such action as may be required or approved by the 
Contracting Officer to seek recovery of any payments made, including 
assignment to the Government or its designee of all rights to an 
abatement or refund thereof, and granting permission for the Government 
to join with the Contractor in any proceedings for the recovery thereof 
or to sue for recovery in the name of the Contractor. If the Contracting 
Officer directs the Contractor to institute litigation to enjoin the 
collection of or to recover payment of any such tax, fee, or charge 
referred to above, or if a claim or suit is filed against the Contractor 
for a tax, fee, or charge it has refrained from paying in accordance 
with this clause, the procedures and requirements of the clause entitled 
``Insurance--Litigation and Claims'' shall apply and the costs and 
expenses incurred by the Contractor shall be allowable items of costs, 
as provided in this contract, together with the amount of any judgment 
rendered against the Contractor.
    (c) The Government shall hold the Contractor harmless from penalties 
and interest incurred through compliance with this clause. All 
recoveries or credits in respect of the foregoing taxes, fees, and 
charges (including interest) shall inure to and be for the sole benefit 
of the Government.

[[Page 567]]

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, 36378, 36380, 
July 22, 2009]



Sec. 970.5231-4  Preexisting conditions.

    As prescribed in 970.3170, insert the following clause:

                    Preexisting Conditions (DEC 2000)

    (a) The Department of Energy agrees to reimburse the Contractor, and 
the Contractor shall not be held responsible, for any liability 
(including without limitation, a claim involving strict or absolute 
liability and any civil fine or penalty), expense, or remediation cost, 
but limited to those of a civil nature, which may be incurred by, 
imposed on, or asserted against the Contractor arising out of any 
condition, act, or failure to act which occurred before the Contractor 
assumed responsibility on [Insert date contract began]. To the extent 
the acts or omissions of the Contractor cause or add to any liability, 
expense or remediation cost resulting from conditions in existence prior 
to [Insert date contract began], the Contractor shall be responsible in 
accordance with the terms and conditions of this contract.
    (b) The obligations of the Department of Energy under this clause 
are subject to the availability of appropriated funds.

                             (End of clause)

    Alternate I (DEC 2000). As prescribed in 970.3170 (a), in contracts 
with incumbent management and operating contractors, substitute the 
following for paragraph (a) of the basic clause:

    (a) Any liability, obligation, loss, damage, claim (including 
without limitation, a claim involving strict or absolute liability), 
action, suit, civil fine or penalty, cost, expense or disbursement, 
which may be incurred or imposed, or asserted by any party and arising 
out of any condition, act or failure to act which occurred before 
[Insert date this clause was included in contract], in conjunction with 
the management and operation of [Insert name of facility], shall be 
deemed incurred under Contract No. [Insert number of prior contract].

    Alternate II (DEC 2000). As prescribed in 970.3170 (b), add the 
following paragraph (c) to the basic clause in contracts with management 
and operating contractors not previously working at that particular site 
or facility:

    (c) The Contractor has the duty to inspect the facilities and sites 
and timely identify to the Contracting Officer those conditions which it 
believes could give rise to a liability, obligation, loss, damage, 
penalty, fine, claim, action, suit, cost, expense, or disbursement or 
areas of actual or potential noncompliance with the terms and conditions 
of this contract or applicable law or regulation. The Contractor has the 
responsibility to take corrective action, as directed by the Contracting 
Officer and as required elsewhere in this contract.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, 36378, 36380, 
July 22, 2009]



Sec. 970.5232-1  Reduction or suspension of advance, partial, or 
          progress payments upon finding of substantial evidence of 
          fraud.

    As prescribed in 970.3200-1-1, insert the following clause:

 Reduction or Suspension of Advance, Partial, or Progress Payments (DEC 
                                  2000)

    (a) The Contracting Officer may reduce or suspend further advance, 
partial, or progress payments to the Contractor upon a written 
determination by the Senior Procurement Executive that substantial 
evidence exists that the Contractor's request for advance, partial, or 
progress payment is based on fraud.
    (b) The Contractor shall be afforded a reasonable opportunity to 
respond in writing.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, 36378, 36380, 
July 22, 2009]



Sec. 970.5232-2  Payments and advances.

    As prescribed in 970.3270(a)(1), insert the following clause:

                    Payments and Advances (DEC 2000)

    (a) Installments of fixed-fee. The fixed-fee payable under this 
contract shall become due and payable in periodic installments in 
accordance with a schedule determined by the Contracting Officer. Fixed-
fee payments shall be made by direct payment or withdrawn from funds 
advanced or available under this contract, as determined by the 
Contracting Officer. The Contracting Officer may offset against any such 
fee payment the amounts owed to the Government by the Contractor, 
including any amounts owed for disallowed costs under this contract. No 
fixed-fee payment may be withdrawn against the payments cleared 
financing arrangement without prior written approval of the Contracting 
Officer.
    (b) Payments on Account of Allowable Costs. The Contracting Officer 
and the Contractor

[[Page 568]]

shall agree as to the extent to which payment for allowable costs or 
payments for other items specifically approved in writing by the 
Contracting Officer (for example, negotiated fixed amounts) shall be 
made from advances of Government funds. When pension contributions are 
paid by the Contractor to the retirement fund less frequently than 
quarterly, accrued costs therefore shall be excluded from costs for 
payment purposes until such costs are paid. If pension contribution are 
paid on a quarterly or more frequent basis, accrual therefore may be 
included in costs for payment purposes, provided that they are paid to 
the fund within 30 days after the close of the period covered. If 
payments are not made to the fund within such 30-day period, pension 
contribution costs shall be excluded from cost for payment purposes 
until payment has been made.
    (c) Special financial institution account--use. All advances of 
Government funds shall be withdrawn pursuant to a payments cleared 
financing arrangement prescribed by DOE in favor of the financial 
institution or, at the option of the Government, shall be made by direct 
payment or other payment mechanism to the Contractor, and shall be 
deposited only in the special financial institution account referred to 
in the Special Financial Institution Account Agreement, which is 
incorporated into this contract as Appendix--. No part of the funds in 
the special financial institution account shall be commingled with any 
funds of the Contractor or used for a purpose other than that of making 
payments for costs allowable and, if applicable, fees earned under this 
contract, negotiated fixed amounts, or payments for other items 
specifically approved in writing by the Contracting Officer. If the 
Contracting Officer determines that the balance of such special 
financial institution account exceeds the Contractor's current needs, 
the Contractor shall promptly make such disposition of the excess as the 
Contracting Officer may direct.
    (d) Title to funds advanced. Title to the unexpended balance of any 
funds advanced and of any special financial institution account 
established pursuant to this clause shall remain in the Government and 
be superior to any claim or lien of the financial institution of deposit 
or others. It is understood that an advance to the Contractor hereunder 
is not a loan to the Contractor, and will not require the payment of 
interest by the Contractor, and that the Contractor acquires no right, 
title or interest in or to such advance other than the right to make 
expenditures therefrom, as provided in this clause.
    (e) Financial settlement. The Government shall promptly pay to the 
Contractor the unpaid balance of allowable costs (or other items 
specifically approved in writing by the Contracting Officer) and fee 
upon termination of the work, expiration of the term of the contract, or 
completion of the work and its acceptance by the Government after--
    (1) Compliance by the Contractor with DOE's patent clearance 
requirements; and
    (2) The furnishing by the Contractor of--
    (i) An assignment of the Contractor's rights to any refunds, 
rebates, allowances, accounts receivable, collections accruing to the 
Contractor in connection with the work under this contract, or other 
credits applicable to allowable costs under the contract;
    (ii) A closing financial statement;
    (iii) The accounting for Government-owned property required by the 
clause entitled ``Property''; and
    (iv) A release discharging the Government, its officers, agents, and 
employees from all liabilities, obligations, and claims arising out of 
or under this contract subject only to the following exceptions--
    (A) Specified claims in stated amounts or in estimated amounts where 
the amounts are not susceptible to exact statement by the Contractor;
    (B) Claims, together with reasonable expenses incidental thereto, 
based upon liabilities of the Contractor to third parties arising out of 
the performance of this contract; provided that such claims are not 
known to the Contractor on the date of the execution of the release; and 
provided further that the Contractor gives notice of such claims in 
writing to the Contracting Officer promptly, but not more than one (1) 
year after the Contractor's right of action first accrues. In addition, 
the Contractor shall provide prompt notice to the Contracting Officer of 
all potential claims under this clause, whether in litigation or not 
(see Contract Clause, 48 CFR 970.5228-1, Insurance--Litigation and 
Claims);
    (C) Claims for reimbursement of costs (other than expenses of the 
Contractor by reason of any indemnification of the Government against 
patent liability), including reasonable expenses incidental thereto, 
incurred by the Contractor under the provisions of this contract 
relating to patents; and
    (D) Claims recognizable under the clause entitled, Nuclear Hazards 
Indemnity Agreement.
    (3) In arriving at the amount due the Contractor under this clause, 
there shall be deducted--
    (i) Any claim which the Government may have against the Contractor 
in connection with this contract; and
    (ii) Deductions due under the terms of this contract and not 
otherwise recovered by or credited to the Government. The unliquidated 
balance of the special financial institution account may be applied to 
the amount due and any balance shall be returned to the Government 
forthwith.
    (f) Claims. Claims for credit against funds advanced for payment 
shall be accompanied

[[Page 569]]

by such supporting documents and justification as the Contracting 
Officer shall prescribe.
    (g) Discounts. The Contractor shall take and afford the Government 
the advantage of all known and available cash and trade discounts, 
rebates, allowances, credits, salvage, and commissions unless the 
Contracting Officer finds that action is not in the best interest of the 
Government.
    (h) Collections. All collections accruing to the Contractor in 
connection with the work under this contract, except for the 
Contractor's fee and royalties or other income accruing to the 
Contractor from technology transfer activities in accordance with this 
contract, shall be Government property and shall be processed and 
accounted for in accordance with applicable requirements imposed by the 
Contracting Officer pursuant to the Laws, regulations, and DOE 
directives clause of this contract and, to the extent consistent with 
those requirements, shall be deposited in the special financial 
institution account or otherwise made available for payment of allowable 
costs under this contract, unless otherwise directed by the Contracting 
Officer.
    (i) Direct payment of charges. The Government reserves the right, 
upon ten days written notice from the Contracting Officer to the 
Contractor, to pay directly to the persons concerned, all amounts due 
which otherwise would be allowable under this contract. Any payment so 
made shall discharge the Government of all liability to the Contractor 
therefore.
    (j) Determining allowable costs. The Contracting Officer shall 
determine allowable costs in accordance with the Federal Acquisition 
Regulation subpart 31.2 and the Department of Energy Acquisition 
Regulation subpart 48 CFR 970.31 in effect on the date of this contract 
and other provisions of this contract.

                             (End of clause)

    Alternate I (DEC 2000). As prescribed in 970.3270(a)(1)(i), if a 
separate fixed-fee is provided for a separate item of work, paragraph 
(a) of the basic clause should be modified to permit payment of the 
entire fixed-fee upon completion of that item.
    Alternate II (DEC 2000). As prescribed in 970.3270(a)(1)(ii), when 
total available fee provisions are used, replace paragraph (a) of the 
basic clause with the following paragraph (a):

    (a) Payment of Total available fee: Base Fee and Performance Fee. 
The base fee amount, if any, is payable in equal monthly installments. 
Total available fee amount earned is payable following the Government's 
Determination of Total Available Fee Amount Earned in accordance with 
the clause of this contract entitled ``Total Available Fee: Base Fee 
Amount and Performance Fee Amount.'' Base fee amount and total available 
fee amount earned payments shall be made by direct payment or withdrawn 
from funds advanced or available under this contract, as determined by 
the Contracting Officer. The Contracting Officer may offset against any 
such fee payment the amounts owed to the Government by the Contractor, 
including any amounts owed for disallowed costs under this contract. No 
base fee amount or total available fee amount earned payment may be 
withdrawn against the payments cleared financing arrangement without the 
prior written approval of the contracting officer.

    Alternate III (DEC 2000). As prescribed in 970.3270(a)(1)(iii), the 
following paragraph (k) shall be included in management and operating 
contracts with integrated accounting systems:

    (k) Review and approval of costs incurred. The Contractor shall 
prepare and submit annually as of September 30, a ``Statement of Costs 
Incurred and Claimed'' (Cost Statement) for the total of net 
expenditures accrued (i.e., net costs incurred) for the period covered 
by the Cost Statement. The Contractor shall certify the Cost Statement 
subject to the penalty provisions for unallowable costs as stated in 
sections 306(b) and (i) of the Federal Property and Administrative 
Services Act of 1949 (41 U.S.C. 256), as amended. DOE, after audit and 
appropriate adjustment, will approve such Cost Statement. This approval 
by DOE will constitute an acknowledgment by DOE that the net costs 
incurred are allowable under the contract and that they have been 
recorded in the accounts maintained by the Contractor in accordance with 
DOE accounting policies, but will not relieve the Contractor of 
responsibility for DOE's assets in its care, for appropriate subsequent 
adjustments, or for errors later becoming known to DOE.

    Alternate IV (DEC 2000). As prescribed in 970.3270(a)(1)(iv), the 
following paragraph (k) shall be included in management and operating 
contracts without integrated accounting systems:

    (k) Certification and penalties. The Contractor shall prepare and 
submit a ``Statement of Costs Incurred and Claimed'' (Cost Statement) 
for the total of net expenditures incurred for the period covered by the 
Cost Statement. It is anticipated that this will be an annual submission 
unless otherwise agreed to by the Contracting Officer. The Contractor 
shall certify the Cost Statement subject to the penalty provisions for 
unallowable costs as stated in sections 306(b) and

[[Page 570]]

(i) of the Federal Property and Administrative Services Act of 1949 (41 
U.S.C. 256), as amended.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36375, 36376, 36378, 
36380, July 22, 2009; 75 FR 68221, Nov. 5, 2010]



Sec. 970.5232-3  Accounts, records, and inspection.

    As prescribed in 970.3270(a)(2), insert the following clause:

              Accounts, Records, and Inspection (DEC 2010)

    (a) Accounts. The Contractor shall maintain a separate and distinct 
set of accounts, records, documents, and other evidence showing and 
supporting: all allowable costs incurred; collections accruing to the 
Contractor in connection with the work under this contract, other 
applicable credits, negotiated fixed amounts, and fee accruals under 
this contract; and the receipt, use, and disposition of all Government 
property coming into the possession of the Contractor under this 
contract. The system of accounts employed by the Contractor shall be 
satisfactory to DOE and in accordance with generally accepted accounting 
principles consistently applied.
    (b) Inspection and audit of accounts and records. All books of 
account and records relating to this contract shall be subject to 
inspection and audit by DOE or its designees in accordance with the 
provisions of Clause 970.5204-3, Access to and ownership of records, at 
all reasonable times, before and during the period of retention provided 
for in paragraph (d) of this clause, and the Contractor shall afford DOE 
proper facilities for such inspection and audit.
    (c) Audit of subcontractors' records. The Contractor also agrees, 
with respect to any subcontracts (including fixed-price or unit-price 
subcontracts or purchase orders) where, under the terms of the 
subcontract, costs incurred are a factor in determining the amount 
payable to the subcontractor of any tier, to either conduct an audit of 
the subcontractor's costs or arrange for such an audit to be performed 
by the cognizant government audit agency through the Contracting 
Officer.
    (d) Disposition of records. Except as agreed upon by the Government 
and the Contractor, all financial and cost reports, books of account and 
supporting documents, system files, data bases, and other data 
evidencing costs allowable, collections accruing to the Contractor in 
connection with the work under this contract, other applicable credits, 
and fee accruals under this contract, shall be the property of the 
Government, and shall be delivered to the Government or otherwise 
disposed of by the Contractor either as the Contracting Officer may from 
time to time direct during the progress of the work or, in any event, as 
the Contracting Officer shall direct upon completion or termination of 
this contract and final audit of accounts hereunder. Except as otherwise 
provided in this contract, including provisions of Clause 970.5204-3, 
Access to and Ownership of Records, all other records in the possession 
of the Contractor relating to this contract shall be preserved by the 
Contractor for a period of three years after final payment under this 
contract or otherwise disposed of in such manner as may be agreed upon 
by the Government and the Contractor.
    (e) Reports. The Contractor shall furnish such progress reports and 
schedules, financial and cost reports, and other reports concerning the 
work under this contract as the Contracting Officer may from time to 
time require.
    (f) Inspections. The DOE shall have the right to inspect the work 
and activities of the Contractor under this contract at such time and in 
such manner as it shall deem appropriate.
    (g) Subcontracts. The Contractor further agrees to require the 
inclusion of provisions similar to those in paragraphs (a) through (g) 
and paragraph (h) of this clause in all subcontracts (including fixed-
price or unit-price subcontracts or purchase orders) of any tier entered 
into hereunder where, under the terms of the subcontract, costs incurred 
are a factor in determining the amount payable to the subcontractor.
    (h) Comptroller general. (1) The Comptroller General of the United 
States, or an authorized representative, shall have access to and the 
right to examine any of the contractor's or subcontractor's directly 
pertinent records involving transactions related to this contract or a 
subcontract hereunder and to interview any current employee regarding 
such transactions.
    (2) This paragraph may not be construed to require the Contractor or 
subcontractor to create or maintain any record that the Contractor or 
subcontractor does not maintain in the ordinary course of business or 
pursuant to a provision of law.
    (3) Nothing in this contract shall be deemed to preclude an audit by 
the Government Accountability Office of any transaction under this 
contract.
    (i) Internal audit. The Contractor agrees to design and maintain an 
internal audit plan and an internal audit organization.
    (1) Upon contract award, the exercise of any contract option, or the 
extension of the contract, the Contractor must submit to the Contracting 
Officer for approval an Internal Audit Implementation Design to include 
the overall strategy for internal audits. The

[[Page 571]]

Audit Implementation Design must describe--
    (i) The internal audit organization's placement within the 
Contractor's organization and its reporting requirements;
    (ii) The audit organization's size and the experience and 
educational standards of its staff;
    (iii) The audit organization's relationship to the corporate 
entities of the Contractor;
    (iv) The standards to be used in conducting the internal audits;
    (v) The overall internal audit strategy of this contract, 
considering particularly the method of auditing costs incurred in the 
performance of the contract;
    (vi) The intended use of external audit resources;
    (vii) The plan for audit of subcontracts, both pre-award and post-
award; and
    (viii) The schedule for peer review of internal audits by other 
contractor internal audit organizations, or other independent third 
party audit entities approved by the DOE Contracting Officer.
    (2) By each January 31 of the contract performance period, the 
Contractor must submit an annual audit report, providing a summary of 
the audit activities undertaken during the previous fiscal year. That 
report shall reflect the results of the internal audits during the 
previous fiscal year and the actions to be taken to resolve weaknesses 
identified in the contractor's system of business, financial, or 
management controls.
    (3) By each June 30 of the contract performance period, the 
Contractor must submit to the Contracting Officer an annual audit plan 
for the activities to be undertaken by the internal audit organization 
during the next fiscal year that is designed to test the costs incurred 
and contractor management systems described in the internal audit 
design.
    (4) The Contracting Officer may require revisions to documents 
submitted under paragraphs (i)(1), (i)(2), and (i)(3) of this clause, 
including the design plan for the internal audits, the annual report, 
and the annual internal audits.
    (j) Remedies. If at any time during contract performance, the 
Contracting Officer determines that unallowable costs were claimed by 
the Contractor to the extent of making the contractor's management 
controls suspect, or the contractor's management systems that validate 
costs incurred and claimed suspect, the Contracting Officer may, in his 
or her sole discretion, require the Contractor to cease using the 
special financial institution account in whole or with regard to 
specified accounts, requiring reimbursable costs to be claimed by 
periodic vouchering. In addition, the Contracting Officer, where he or 
she deems it appropriate, may: Impose a penalty under 48 CFR 970.5242-1, 
Penalties for Unallowable Costs; require a refund; reduce the 
contractor's otherwise earned fee; and take such other action as 
authorized in law, regulation, or this contract.

                             (End of clause)

    Alternate I (DEC 2000). As prescribed in 970.3270(a)(2), if the 
contract includes the clause at 48 CFR 52.215-11, Price Reduction for 
Defective Cost or Pricing Data--Modifications, the basic clause shall be 
modified as follows:
    (a) Paragraph (a) of the basic clause shall be modified by adding 
the words ``or anticipated to be incurred'' after the words ``allowable 
costs incurred.''
    (b) Paragraph (g) of the basic clause shall be modified by adding 
the following:

    The Contractor further agrees to include an ``Audit'' clause, the 
substance of which is the ``Audit'' clause set forth at 48 CFR 52.215-2, 
in each subcontract which does not include provisions similar to those 
in paragraph (a) through paragraph (g) and paragraph (h) of this clause, 
but which contains a ``defective cost or pricing data'' clause.

[65 FR 81009, Dec. 22, 2000, as amended at 72 FR 29081, May 24, 2007; 74 
FR 36376, 36378, 36380, July 22, 2009; 75 FR 68220, 68221, Nov. 5, 2010]



Sec. 970.5232-4  Obligation of funds.

    As prescribed in 970.3270(a)(3), insert the following clause:

                     Obligation of Funds (DEC 2000)

    (a) Obligation of funds. The amount presently obligated by the 
Government with respect to this contract is ---- dollars ($----). Such 
amount may be increased unilaterally by DOE by written notice to the 
Contractor and may be increased or decreased by written agreement of the 
parties (whether or not by formal modification of this contract). 
Estimated collections from others for work and services to be performed 
under this contract are not included in the amount presently obligated. 
Such collections, to the extent actually received by the Contractor, 
shall be processed and accounted for in accordance with applicable 
requirements imposed by the Contracting Officer pursuant to the Laws, 
regulations, and DOE directives clause of this contract. Nothing in this 
paragraph is to be construed as authorizing the Contractor to exceed 
limitations stated in financial plans established by DOE and furnished 
to the Contractor from time to time under this contract.
    (b) Limitation on payment by the Government. Except as otherwise 
provided in this contract and except for costs which may be incurred by 
the Contractor pursuant to the

[[Page 572]]

Termination clause of this contract or costs of claims allowable under 
the contract occurring after completion or termination and not released 
by the Contractor at the time of financial settlement of the contract in 
accordance with the clause entitled ``Payments and Advances,'' payment 
by the Government under this contract on account of allowable costs 
shall not, in the aggregate, exceed the amount obligated with respect to 
this contract, less the Contractor's fee and any negotiated fixed 
amount. Unless expressly negated in this contract, payment on account of 
those costs excepted in the preceding sentence which are in excess of 
the amount obligated with respect to this contract shall be subject to 
the availability of--
    (1) Collections accruing to the Contractor in connection with the 
work under this contract and processed and accounted for in accordance 
with applicable requirements imposed by the Contracting Officer pursuant 
to the Laws, regulations, and DOE directives clause of this contract; 
and
    (2) Other funds which DOE may legally use for such purpose, provided 
DOE will use its best efforts to obtain the appropriation of funds for 
this purpose if not otherwise available.
    (c) Notices--Contractor excused from further performance. The 
Contractor shall notify DOE in writing whenever the unexpended balance 
of available funds (including collections available under paragraph (a) 
of this clause), plus the Contractor's best estimate of collections to 
be received and available during the ---- day period hereinafter 
specified, is in the Contractor's best judgment sufficient to continue 
contract operations at the programmed rate for only ---- days and to 
cover the Contractor's unpaid fee and any negotiated fixed amounts, and 
outstanding encumbrances and liabilities on account of costs allowable 
under the contract at the end of such period. Whenever the unexpended 
balance of available funds (including collections available under 
paragraph (a) of this clause), less the amount of the Contractor's fee 
then earned but not paid and any negotiated fixed amounts, is in the 
Contractor's best judgment sufficient only to liquidate outstanding 
encumbrances and liabilities on account of costs allowable under this 
contract, the Contractor shall immediately notify DOE and shall make no 
further encumbrances or expenditures (except to liquidate existing 
encumbrances and liabilities), and, unless the parties otherwise agree, 
the Contractor shall be excused from further performance (except such 
performance as may become necessary in connection with termination by 
the Government) and the performance of all work hereunder will be deemed 
to have been terminated for the convenience of the Government in 
accordance with the provisions of the Termination clause of this 
contract.
    (d) Financial plans; cost and encumbrance limitations. In addition 
to the limitations provided for elsewhere in this contract, DOE may, 
through financial plans, such as Approved Funding Programs, or other 
directives issued to the Contractor, establish controls on the costs to 
be incurred and encumbrances to be made in the performance of the 
contract work. Such plans and directives may be amended or supplemented 
from time to time by DOE. The Contractor agrees--
    (1) To comply with the specific limitations (ceilings) on costs and 
encumbrances set forth in such plans and directives;
    (2) To comply with other requirements of such plans and directives; 
and
    (3) To notify DOE promptly, in writing, whenever it has reason to 
believe that any limitation on costs and encumbrances will be exceeded 
or substantially underrun.
    (e) Government's right to terminate not affected. The giving of any 
notice under this clause shall not be construed to waive or impair any 
right of the Government to terminate the contract under the provisions 
of the Termination clause of this contract.

                             (End of clause)

    Alternate I (DEC 2000). As prescribed in 970.3270(a)(3), paragraph 
(d) of the clause may be omitted in contracts which, expressly or 
otherwise, provide a contractual basis for equivalent controls in a 
separate clause.

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36378, 36380, July 22, 
2009]



Sec. 970.5232-5  Liability with respect to cost accounting standards.

    As prescribed in 970.3270(a)(5), insert the following clause:

     Liability With Respect to Cost Accounting Standards (DEC 2000)

    (a) The Contractor is not liable to the Government for increased 
costs or interest resulting from its failure to comply with the clauses 
of this contract entitled, ``Cost Accounting Standards,'' and 
``Administration of Cost Accounting Standards,'' if its failure to 
comply with the clauses is caused by the Contractor's compliance with 
published DOE financial management policies and procedures or other 
requirements established by the Department's Chief Financial Officer or 
Senior Procurement Executive.
    (b) The Contractor is not liable to the Government for increased 
costs or interest resulting from its subcontractors' failure to comply 
with the clauses at 52.230-2, ``Cost Accounting Standards,'' and 52.230-
6, ``Administration of Cost Accounting Standards,'' if the Contractor 
includes in each covered

[[Page 573]]

subcontract a clause making the subcontractor liable to the Government 
for increased costs or interest resulting from the subcontractor's 
failure to comply with the clauses; and the Contractor seeks the 
subcontract price adjustment and cooperates with the Government in the 
Government's attempts to recover from the subcontractor.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36376, 36378, July 22, 
2009; 75 FR 68221, Nov. 5, 2010]



Sec. 970.5232-6  Work for others funding authorization.

    As prescribed in 970.3270(a)(6), insert the following clause:

            Work for Others Funding Authorization (DEC 2000)

    Any uncollectible receivables resulting from the Contractor 
utilizing contractor corporate funding for reimbursable work shall be 
the responsibility of the Contractor, and the United States Government 
shall have no liability to the Contractor for the Contractor's 
uncollected receivables. The Contractor is permitted to provide advance 
payment utilizing contractor corporate funds for reimbursable work to be 
performed by the Contractor for a non-Federal entity in instances where 
advance payment from that entity is required under the Laws, 
regulations, and DOE directives clause of this contract and such advance 
cannot be obtained. The Contractor is also permitted to provide advance 
payment utilizing contractor corporate funds to continue reimbursable 
work to be performed by the Contractor for a Federal entity when the 
term or the funds on a Federal interagency agreement required under the 
Laws, regulations, and DOE directives clause of this contract have 
elapsed. The Contractor's utilization of contractor corporate funds does 
not relieve the Contractor of its responsibility to comply with all 
requirements for Work for Others applicable to this contract.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36376, 36378, July 22, 
2009]



Sec. 970.5232-7  Financial management system.

    As prescribed in 970.3270(b)(1), insert the following clause:

                 Financial Management System (DEC 2000)

    The Contractor shall maintain and administer a financial management 
system that is suitable to provide proper accounting in accordance with 
DOE requirements for assets, liabilities, collections accruing to the 
Contractor in connection with the work under this contract, 
expenditures, costs, and encumbrances; permits the preparation of 
accounts and accurate, reliable financial and statistical reports; and 
assures that accountability for the assets can be maintained. The 
Contractor shall submit to DOE for written approval an annual plan for 
new financial management systems and/or subsystems and major 
enhancements and/or upgrades to the currently existing financial systems 
and/or subsystems. The Contractor shall notify DOE thirty (30) days in 
advance of any planned implementation of any substantial deviation from 
this plan and, as requested by the Contracting Officer, shall submit any 
such deviation to DOE for written approval before implementation.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36376, 36378, 36380, 
July 22, 2009]



Sec. 970.5232-8  Integrated accounting.

    As prescribed in 970.3270(b)(2), insert the following clause:

                    Integrated Accounting (DEC 2000)

    Integrated accounting procedures are required for use under this 
contract. The Contractor's financial management system shall include an 
integrated accounting system that is linked to DOE's accounts through 
the use of reciprocal accounts and that has electronic capability to 
transmit monthly and year-end self-balancing trial balances to the 
Department's Primary Accounting System for reporting financial activity 
under this contract in accordance with requirements imposed by the 
Contracting Officer pursuant to the Laws, regulations, and DOE 
directives clause of this contract.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36376, 36378, 36380, 
July 22, 2009]



Sec. 970.5235-1  Federally funded research and development center 
          sponsoring agreement.

    As prescribed in 970.3501-4, the contracting officer shall insert 
the following clause:

 Federally Funded Research and Development Center Sponsoring Agreement 
                               (DEC 2010)

    (a) Pursuant to 48 CFR 35.017-1, this contract constitutes the 
sponsoring agreement

[[Page 574]]

between the Department of Energy (DOE) and the Contractor, which 
establishes the relationship for the operation of a Department of Energy 
sponsored Federally Funded Research and Development Center (FFRDC).
    (b) In the operation of this FFRDC, the Contractor may be provided 
access beyond that which is common to the normal contractual 
relationship, to Government and supplier data, including sensitive and 
proprietary data, and to Government employees and facilities needed to 
discharge its responsibilities efficiently and effectively. Because of 
this special relationship, it is essential that the FFRDC be operated in 
the public interest with objectivity and independence, be free from 
organizational conflicts of interest, and have full disclosure of its 
affairs to the Department of Energy.
    (c) Unless otherwise provided by the contract, the Contractor may 
accept work from a nonsponsor (as defined in 48 CFR 35.017) in 
accordance with the requirements and limitations of the clause 48 CFR 
970.5217-1 Work for Others Program.
    (d) As an FFRDC, the Contractor shall not use its privileged 
information or access to government facilities to compete with the 
private sector. Specific guidance on restricted activities is contained 
in DOE Order 481.1, Work for Others (Non-Department of Energy Funded 
Work), or its successor.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36376, 36378, July 22, 
2009; 75 FR 68220, Nov. 5, 2010]



Sec. 970.5236-1  Government facility subcontract approval.

    As prescribed at 48 CFR 970.3605-2, insert the following clause:

           Government Facility Subcontract Approval (DEC 2000)

    Upon request of the Contracting Officer and acceptance thereof by 
the Contractor, the Contractor shall procure, by subcontract, the 
construction of new facilities or the alteration or repair of 
Government-owned facilities at the plant. Any subcontract entered into 
under this paragraph shall be subject to the written approval of the 
Contracting Officer and shall contain the provisions relative to labor 
and wages required by law to be included in contracts for the 
construction, alteration, and/or repair, including painting and 
decorating, of a public building or public work.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36378, 36380, July 22, 
2009]



Sec. 970.5237-2  [Reserved]



Sec. 970.5242-1  Penalties for unallowable costs.

    As prescribed in 970.4207-03-70, insert the following clause:

               Penalties for Unallowable Costs (AUG 2009)

    (a) Contractors which include unallowable cost in a submission for 
settlement for cost incurred, may be subject to penalties.
    (b) If, during the review of a submission for settlement of cost 
incurred, the Contracting Officer determines that the submission 
contains an expressly unallowable cost or a cost determined to be 
unallowable prior to the submission, the Contracting Officer shall 
assess a penalty.
    (c) Unallowable costs are either expressly unallowable or determined 
unallowable.
    (1) An expressly unallowable cost is a particular item or type of 
cost which, under the express provisions of an applicable law, 
regulation, or this contract, is specifically named and stated to be 
unallowable.
    (2) A cost determined unallowable is one which, for that 
Contractor--
    (i) Was subject to a Contracting Officer's final decision and not 
appealed;
    (ii) The Civilian Board of Contract Appeals or a court has 
previously ruled as unallowable; or
    (iii) Was mutually agreed to be unallowable.
    (d) If the Contracting Officer determines that a cost submitted by 
the Contractor in its submission for settlement of cost incurred is--
    (1) Expressly unallowable, then the Contracting Officer shall assess 
a penalty in an amount equal to the disallowed cost allocated to this 
contract plus interest on the paid portion of the disallowed cost. 
Interest shall be computed from the date of overpayment to the date of 
repayment using the interest rate specified by the Secretary of the 
Treasury pursuant to Pub. L. 92-41 (85 Stat. 97); or
    (2) Determined unallowable, then the Contracting Officer shall 
assess a penalty in an amount equal to two times the amount of the 
disallowed cost allocated to this contract.
    (e) The Contracting Officer may waive the penalty provisions when--
    (1) The Contractor withdraws the submission before the formal 
initiation of an audit of the submission and submits a revised 
submission;
    (2) The amount of the unallowable costs allocated to covered 
contracts is $10,000 or less; or
    (3) The Contractor demonstrates to the Contracting Officer's 
satisfaction that--

[[Page 575]]

    (i) It has established appropriate policies, personnel training, and 
an internal control and review system that provides assurances that 
unallowable costs subject to penalties are precluded from the 
Contractor's submission for settlement of costs; and
    (ii) The unallowable costs subject to the penalty were inadvertently 
incorporated into the submission.

                             (End of clause)

[74 FR 36376, July 22, 2009]



Sec. 970.5243-1  Changes.

    As prescribed in 970.4302-1, the contracting officer shall insert 
the following clause in all management and operating contracts:

                           Changes (DEC 2000)

    (a) Changes and adjustment of fee. The Contracting Officer may at 
any time and without notice to the sureties, if any, issue written 
directions within the general scope of this contract requiring 
additional work or directing the omission of, or variation in, work 
covered by this contract. If any such direction results in a material 
change in the amount or character of the work described in the 
``Statement of Work,'' an equitable adjustment of the fee, if any, shall 
be made in accordance with the agreement of the parties and the contract 
shall be modified in writing accordingly. Any claim by the Contractor 
for an adjustment under this clause must be asserted in writing within 
30 days from the date of receipt by the Contractor of the notification 
of change; provided, however, that the Contracting Officer, if it is 
determined that the facts justify such action, may receive and act upon 
any such claim asserted at any time prior to final payment under this 
contract. A failure to agree on an equitable adjustment under this 
clause shall be deemed to be a dispute within the meaning of the clause 
entitled ``Disputes.''
    (b) Work to continue. Nothing contained in this clause shall excuse 
the Contractor from proceeding with the prosecution of the work in 
accordance with the requirements of any direction hereunder.

                             (End of clause)

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36376, 36378, 36380, 
July 22, 2009]



Sec. 970.5244-1  Contractor purchasing system.

    As prescribed in 970.4403 insert the following clause:

                 Contractor Purchasing System (JAN 2013)

    (a) General. The Contractor shall develop, implement, and maintain 
formal policies, practices, and procedures to be used in the award of 
subcontracts consistent with this clause and 48 CFR subpart 970.44. The 
Contractor's purchasing system and methods shall be fully documented, 
consistently applied, and acceptable to the Department of Energy (DOE) 
in accordance with 48 CFR 970.4401-1. The Contractor shall maintain file 
documentation which is appropriate to the value of the purchase and is 
adequate to establish the propriety of the transaction and the price 
paid. The Contractor's purchasing performance will be evaluated against 
such performance criteria and measures as may be set forth elsewhere in 
this contract. DOE reserves the right at any time to require that the 
Contractor submit for approval any or all purchases under this contract. 
The Contractor shall not purchase any item or service, the purchase of 
which is expressly prohibited by the written direction of DOE, and shall 
use such special and directed sources as may be expressly required by 
the DOE Contracting Officer. DOE will conduct periodic appraisals of the 
Contractor's management of all facets of the purchasing function, 
including the Contractor's compliance with its approved system and 
methods. Such appraisals will be performed through the conduct of 
Contractor Purchasing System Reviews in accordance with 48 CFR subpart 
44.3, or, when approved by the Contracting Officer, through the 
Contractor's participation in the conduct of the Balanced Scorecard 
performance measurement and performance management system. The 
Contractor's approved purchasing system and methods shall include the 
requirements set forth in paragraphs (b) through (y) of this clause.
    (b) Acquisition of utility services. Utility services shall be 
acquired in accordance with the requirements of 48 CFR subpart 970.41.
    (c) Acquisition of real property. Real property shall be acquired in 
accordance with 48 CFR subpart 917.74.
    (d) Advance notice of proposed subcontract awards. Advance notice 
shall be provided in accordance with 48 CFR 970.4401-3.
    (e) Audit of subcontractors. (1) The Contractor shall provide for--
    (i) Periodic post-award audit of cost-reimbursement subcontractors 
at all tiers; and
    (ii) Audits, where necessary, to provide a valid basis for pre-award 
or cost or price analysis.
    (2) Responsibility for determining the costs allowable under each 
cost-reimbursement subcontract remains with the contractor or next 
higher-tier subcontractor. The Contractor shall provide, in appropriate 
cases, for the timely involvement of the Contractor and the DOE 
Contracting Officer in resolution of subcontract cost allowability.

[[Page 576]]

    (3) Where audits of subcontractors at any tier are required, 
arrangements may be made to have the cognizant Federal agency perform 
the audit of the subcontract. These arrangements shall be made 
administratively between DOE and the other agency involved and shall 
provide for the cognizant agency to audit in an appropriate manner in 
light of the magnitude and nature of the subcontract. In no case, 
however, shall these arrangements preclude determination by the DOE 
Contracting Officer of the allowability or unallowability of 
subcontractor costs claimed for reimbursement by the Contractor.
    (4) Allowable costs for cost reimbursable subcontracts are to be 
determined in accordance with the cost principles of 48 CFR Part 31, 
appropriate for the type of organization to which the subcontract is to 
be awarded, as supplemented by 48 CFR part 931. Allowable costs in the 
purchase or transfer from contractor-affiliated sources shall be 
determined in accordance with 48 CFR 970.4402-3 and 48 CFR 31.205-26(e).
    (f) Bonds and insurance. (1) The Contractor shall require 
performance bonds in penal amounts as set forth in 48 CFR 28.102-2(a) 
for all fixed-priced and unit-priced construction subcontracts in excess 
of $100,000. The Contractor shall consider the use of performance bonds 
in fixed-price non-construction subcontracts, where appropriate.
    (2) For fixed-price, unit-priced and cost reimbursement construction 
subcontracts in excess of $100,000, a payment bond shall be obtained on 
Standard Form 25A modified to name the Contractor as well as the United 
States of America as obligees. The penal amounts shall be determined in 
accordance with 48 CFR 28.102-2(b).
    (3) For fixed-price, unit-priced and cost-reimbursement construction 
subcontracts greater than $25,000, but not greater than $100,000, the 
Contractor shall select two or more of the payment protections at 48 CFR 
28.102-1(b), giving particular consideration to the inclusion of an 
irrevocable letter of credit as one of the selected alternatives.
    (4) A subcontractor may have more than one acceptable surety in both 
construction and other subcontracts, provided that in no case will the 
liability of any one surety exceed the maximum penal sum for which it is 
qualified for any one obligation. For subcontracts other than 
construction, a co-surety (two or more sureties together) may reinsure 
amounts in excess of their individual capacity, with each surety having 
the required underwriting capacity that appears on the list of 
acceptable corporate sureties.
    (g) Buy American. The Contractor shall comply with the provisions of 
the Buy American Act as reflected in 48 CFR 52.225-1 and 48 CFR 52.225-
9. The Contractor shall forward determinations of non-availability of 
individual items to the DOE Contracting Officer for approval. Items in 
excess of $100,000 require the prior concurrence of the Head of 
Contracting Activity. If, however, the Contractor has an approved 
purchasing system, the Head of the Contracting Activity may authorize 
the Contractor to make determinations of non-availability for individual 
items valued at $100,000 or less.
    (h) Construction and architect-engineer subcontracts. (1) 
Independent Estimates. A detailed, independent estimate of costs shall 
be prepared for all construction work to be subcontracted.
    (2) Specifications. Specifications for construction shall be 
prepared in accordance with the DOE publication entitled ``General 
Design Criteria Manual.''
    (3) Prevention of conflict of interest. (i) The Contractor shall not 
award a subcontract for construction to the architect-engineer firm or 
an affiliate that prepared the design. This prohibition does not 
preclude the award of a ``turnkey'' subcontract so long as the 
subcontractor assumes all liability for defects in design and 
construction and consequential damages.
    (ii) The Contractor shall not award both a cost-reimbursement 
subcontract and a fixed-price subcontract for construction or architect-
engineer services or any combination thereof to the same firm where 
those subcontracts will be performed at the same site.
    (iii) The Contractor shall not employ the construction subcontractor 
or an affiliate to inspect the firm's work. The contractor shall assure 
that the working relationships of the construction subcontractor and the 
subcontractor inspecting its work and the authority of the inspector are 
clearly defined.
    (i) Contractor-affiliated sources. Equipment, materials, supplies, 
or services from a contractor-affiliated source shall be purchased or 
transferred in accordance with 48 CFR 970.4402-3.
    (j) Contractor-subcontractor relationship. The obligations of the 
Contractor under paragraph (a) of this clause, including the development 
of the purchasing system and methods, and purchases made pursuant 
thereto, shall not relieve the Contractor of any obligation under this 
contract (including, among other things, the obligation to properly 
supervise, administer, and coordinate the work of subcontractors). 
Subcontracts shall be in the name of the Contractor, and shall not bind 
or purport to bind the Government.
    (k) Government Property. The Contractor shall establish and maintain 
a property management system that complies with criteria in 48 CFR 
970.5245-1, Property, and 48 CFR 52.245-1, Government Property.
    (l) Indemnification. Except for Price-Anderson Nuclear Hazards 
Indemnity, no subcontractor may be indemnified except with the prior 
approval of the Senior Procurement Executive.

[[Page 577]]

    (m) Leasing of motor vehicles. Contractors shall comply with 48 CFR 
subpart 8.11 and 48 CFR subpart 908.11.
    (n) [Reserved]
    (o) Management, acquisition and use of information resources. 
Requirements for automatic data processing resources and 
telecommunications facilities, services, and equipment, shall be 
reviewed and approved in accordance with applicable DOE Orders and 
regulations regarding information resources.
    (p) Priorities, allocations and allotments. Priorities, allocations 
and allotments shall be extended to appropriate subcontracts in 
accordance with the clause or clauses of this contract dealing with 
priorities and allocations.
    (q) Purchase of special items. Purchase of the following items shall 
be in accordance with the following provisions of 48 CFR subpart 8.5, 48 
CFR subpart 908.71, Federal Management Regulation 41 CFR part 102, and 
the Federal Property Management Regulation 41 CFR chapter 101:

    (1) Motor vehicles--48 CFR 908.7101
    (2) Aircraft--48 CFR 908.7102
    (3) Security Cabinets--48 CFR 908.7106
    (4) Alcohol--48 CFR 908.7107
    (5) Helium--48 CFR subpart 8.5
    (6) Fuels and packaged petroleum products--48 CFR 908.7109
    (7) Coal--48 CFR 908.7110
    (8) Arms and Ammunition--48 CFR 908.7111
    (9) Heavy Water--48 CFR 908.7121(a)
    (10) Precious Metals--48 CFR 908.7121(b)
    (11) Lithium--48 CFR 908.7121(c)
    (12) Products and services of the blind and severely handicapped--41 
CFR 101-26.701
    (13) Products made in Federal penal and correctional institutions--
41 CFR 101-26.702.

    (r) Purchase versus lease determinations. Contractors shall 
determine whether required equipment and property should be purchased or 
leased, and establish appropriate thresholds for application of lease 
versus purchase determinations. Such determinations shall be made--
    (1) At time of original acquisition;
    (2) When lease renewals are being considered; and
    (3) At other times as circumstances warrant.
    (s) Quality assurance. Contractors shall provide no less protection 
for the Government in its subcontracts than is provided in the prime 
contract.
    (t) Setoff of assigned subcontractor proceeds. Where a subcontractor 
has been permitted to assign payments to a financial institution, the 
assignment shall treat any right of setoff in accordance with 48 CFR 
932.803.
    (u) Strategic and critical materials. The Contractor may use 
strategic and critical materials in the National Defense Stockpile.
    (v) Termination. When subcontracts are terminated as a result of the 
termination of all or a portion of this contract, the Contractor shall 
settle with subcontractors in conformity with the policies and 
principles relating to settlement of prime contracts in 48 CFR subparts 
49.1, 49.2 and 49.3. When subcontracts are terminated for reasons other 
than termination of this contract, the Contractor shall settle such 
subcontracts in general conformity with the policies and principles in 
48 CFR subparts 49.1, 49.2, 49.3 and 49.4. Each such termination shall 
be documented and consistent with the terms of this contract. 
Terminations which require approval by the Government shall be supported 
by accounting data and other information as may be directed by the 
Contracting Officer.
    (w) Unclassified controlled nuclear information. Subcontracts 
involving unclassified uncontrolled nuclear information shall be treated 
in accordance with 10 CFR part 1017.
    (x) Subcontract flowdown requirements. In addition to terms and 
conditions that are included in the prime contract which direct 
application of such terms and conditions in appropriate subcontracts, 
the Contractor shall include the following clauses in subcontracts, as 
applicable:
    (1) Davis-Bacon clauses prescribed in 48 CFR 22.407.
    (2) Foreign Travel clause prescribed in 48 CFR 952.247-70.
    (3) Counterintelligence clause prescribed in 48 CFR 970.0404-4(a).
    (4) Service Contract Act clauses prescribed in 48 CFR 22.1006.
    (5) State and local taxes clause prescribed in 48 CFR 970.2904-1.
    (6) Cost or pricing data clauses prescribed in 48 CFR 970.1504-3-
1(b).
    (y) Legal services. Contractor purchases of litigation and other 
legal services are subject to the requirements in 10 CFR part 719 and 
the requirements of this clause.

                             (End of clause)

[74 FR 36375, July 22, 2009, as amended at 77 FR 74389, Dec. 14, 2012]



Sec. 970.5245-1  Property.

    As prescribed in 970.4501-1(a), insert the following clause:

                           Property (JAN 2013)

    (a) Furnishing of Government property. The Government reserves the 
right to furnish any property or services required for the performance 
of the work under this contract.
    (b) Title to property. Except as otherwise provided by the 
Contracting Officer, title to all materials, equipment, supplies, and 
tangible personal property of every kind and description purchased by 
the Contractor, for the cost of which the Contractor is entitled to be 
reimbursed as a direct item of cost under this contract, shall pass 
directly from

[[Page 578]]

the vendor to the Government. The Government reserves the right to 
inspect, and to accept or reject, any item of such property. The 
Contractor shall make such disposition of rejected items as the 
Contracting Officer shall direct. Title to other property, the cost of 
which is reimbursable to the Contractor under this contract, shall pass 
to and vest in the Government upon (1) issuance for use of such property 
in the performance of this contract, or (2) commencement of processing 
or use of such property in the performance of this contract, or (3) 
reimbursement of the cost thereof by the Government, whichever first 
occurs. Property furnished by the Government and property purchased or 
furnished by the Contractor, title to which vests in the Government, 
under this paragraph are hereinafter referred to as Government property. 
Title to Government property shall not be affected by the incorporation 
of the property into or the attachment of it to any property not owned 
by the Government, nor shall such Government property or any part 
thereof, be or become a fixture or lose its identity as personality by 
reason of affixation to any realty.
    (c) Identification. To the extent directed by the Contracting 
Officer, the Contractor shall identify Government property coming into 
the Contractor's possession or custody, by marking and segregating in 
such a way, satisfactory to the Contracting Officer, as shall indicate 
its ownership by the Government.
    (d) Disposition. The Contractor shall make such disposition of 
Government property which has come into the possession or custody of the 
Contractor under this contract as the Contracting Officer may direct 
during the progress of the work or upon completion or termination of 
this contract. The Contractor may, upon such terms and conditions as the 
Contracting Officer may approve, sell, or exchange such property, or 
acquire such property at a price agreed upon by the Contracting Officer 
and the Contractor as the fair value thereof. The amount received by the 
Contractor as the result of any disposition, or the agreed fair value of 
any such property acquired by the Contractor, shall be applied in 
reduction of costs allowable under this contract or shall be otherwise 
credited to account to the Government, as the Contracting Officer may 
direct. Upon completion of the work or the termination of this contract, 
the Contractor shall render an accounting, as prescribed by the 
Contracting Officer, of all government property which had come into the 
possession or custody of the Contractor under this contract.
    (e) Protection of government property--management of high-risk 
property and classified materials. (1) The Contractor shall take all 
reasonable precautions, and such other actions as may be directed by the 
Contracting Officer, or in the absence of such direction, in accordance 
with sound business practice, to safeguard and protect government 
property in the Contractor's possession or custody.
    (2) In addition, the Contractor shall ensure that adequate 
safeguards are in place, and adhered to, for the handling, control and 
disposition of high-risk property and classified materials throughout 
the life cycle of the property and materials consistent with the 
policies, practices and procedures for property management contained in 
the Federal Property Management Regulations (41 CFR chapter 101), the 
Department of Energy (DOE) Property Management Regulations (41 CFR 
chapter 109), and other applicable Regulations.
    (3) High-risk property is property, the loss, destruction, damage 
to, or the unintended or premature transfer of which could pose risks to 
the public, the environment, or the national security interests of the 
United States. High-risk property includes proliferation sensitive, 
nuclear related dual use, export controlled, chemically or radioactively 
contaminated, hazardous, and specially designed and prepared property, 
including property on the militarily critical technologies list.
    (f) Risk of loss of Government property. (1)(i) The Contractor shall 
not be liable for the loss or destruction of, or damage to, Government 
property unless such loss, destruction, or damage was caused by any of 
the following--
    (A) Willful misconduct or lack of good faith on the part of the 
Contractor's managerial personnel;
    (B) Failure of the Contractor's managerial personnel to take all 
reasonable steps to comply with any appropriate written direction of the 
Contracting Officer to safeguard such property under paragraph (e) of 
this clause; or
    (C) Failure of contractor managerial personnel to establish, 
administer, or properly maintain an approved property management system 
in accordance with paragraph (i)(1) of this clause.
    (ii) If, after an initial review of the facts, the Contracting 
Officer informs the Contractor that there is reason to believe that the 
loss, destruction of, or damage to the government property results from 
conduct falling within one of the categories set forth above, the burden 
of proof shall be upon the Contractor to show that the Contractor should 
not be required to compensate the government for the loss, destruction, 
or damage.
    (2) In the event that the Contractor is determined liable for the 
loss, destruction or damage to Government property in accordance with 
(f)(1) of this clause, the Contractor's compensation to the Government 
shall be determined as follows:
    (i) For damaged property, the compensation shall be the cost of 
repairing such damaged property, plus any costs incurred for

[[Page 579]]

temporary replacement of the damaged property. However, the value of 
repair costs shall not exceed the fair market value of the damaged 
property. If a fair market value of the property does not exist, the 
Contracting Officer shall determine the value of such property, 
consistent with all relevant facts and circumstances.
    (ii) For destroyed or lost property, the compensation shall be the 
fair market value of such property at the time of such loss or 
destruction, plus any costs incurred for temporary replacement and costs 
associated with the disposition of destroyed property. If a fair market 
value of the property does not exist, the Contracting Officer shall 
determine the value of such property, consistent with all relevant facts 
and circumstances.
    (3) The portion of the cost of insurance obtained by the Contractor 
that is allocable to coverage of risks of loss referred to in paragraph 
(f)(1) of this clause is not allowable.
    (g) Steps to be taken in event of loss. In the event of any damage, 
destruction, or loss to Government property in the possession or custody 
of the Contractor with a value above the threshold set out in the 
Contractor's approved property management system, the Contractor --
    (1) Shall immediately inform the Contracting Officer of the occasion 
and extent thereof,
    (2) Shall take all reasonable steps to protect the property 
remaining, and
    (3) Shall repair or replace the damaged, destroyed, or lost property 
in accordance with the written direction of the Contracting Officer. The 
Contractor shall take no action prejudicial to the right of the 
Government to recover therefore, and shall furnish to the Government, on 
request, all reasonable assistance in obtaining recovery.
    (h) Government property for Government use only. Government property 
shall be used only for the performance of this contract.
    (i) Property Management--(1) Property Management System. (i) The 
Contractor shall establish, administer, and properly maintain an 
approved property management system of accounting for and control, 
utilization, maintenance, repair, protection, preservation, and 
disposition of Government property in its possession under the contract. 
The Contractor's property management system shall be submitted to the 
Contracting Officer for approval and shall be maintained and 
administered in accordance with sound business practice, applicable 
Federal Property Management Regulations and Department of Energy 
Property Management Regulations, and such directives or instructions 
which the Contracting Officer may from time to time prescribe.
    (ii) In order for a property management system to be approved, it 
must provide for--
    (A) Comprehensive coverage of property from the requirement 
identification, through its life cycle, to final disposition;
    (B) [Reserved]
    (C) Full integration with the Contractor's other administrative and 
financial systems; and
    (D) A method for continuously improving property management 
practices through the identification of best practices established by 
``best in class'' performers.
    (iii) Approval of the Contractor's property management system shall 
be contingent upon the completion of the baseline inventory as provided 
in subparagraph (i)(2) of this clause.
    (2) Property Inventory. (i) Unless otherwise directed by the 
Contracting Officer, the Contractor shall within six months after 
execution of the contract provide a baseline inventory covering all 
items of Government property.
    (ii) If the Contractor is succeeding another contractor in the 
performance of this contract, the Contractor shall conduct a joint 
reconciliation of the property inventory with the predecessor 
contractor. The Contractor agrees to participate in a joint 
reconciliation of the property inventory at the completion of this 
contract. This information will be used to provide a baseline for the 
succeeding contract as well as information for closeout of the 
predecessor contract.
    (j) The term ``contractor's managerial personnel'' as used in this 
clause means the Contractor's directors, officers and any of its 
managers, superintendents, or other equivalent representatives who have 
supervision or direction of--
    (1) All or substantially all of the Contractor's business; or
    (2) All or substantially all of the Contractor's operations at any 
one facility or separate location to which this contract is being 
performed; or
    (3) A separate and complete major industrial operation in connection 
with the performance of this contract; or
    (4) A separate and complete major construction, alteration, or 
repair operation in connection with performance of this contract; or
    (5) A separate and discrete major task or operation in connection 
with the performance of this contract.
    (k) The Contractor shall include this clause in all cost 
reimbursable subcontracts.

                             (End of clause)

    Alternate I (DEC 2000). As prescribed in 970.4501-1(b), when the 
award is to a nonprofit contractor, replace paragraph (j) of the basic 
clause with the following paragraph (j):


[[Page 580]]


    (j) The term ``contractor's managerial personnel'' as used in this 
clause means the Contractor's directors, officers and any of its 
managers, superintendents, or other equivalent representatives who have 
supervision or direction of all or substantially all of--
    (1) The Contractor's business; or
    (2) The Contractor's operations at any one facility or separate 
location at which this contract is being performed; or
    (3) The Contractor's Government property system and/or a Major 
System Acquisition or Major Project as defined in DOE Order 4700.1 
(Version in effect on effective date of contract).

[65 FR 81009, Dec. 22, 2000, as amended at 74 FR 36378, 36380, July 22, 
2009; 77 FR 74389, Dec. 14, 2012]

[[Page 581]]



                 CHAPTER 10--DEPARTMENT OF THE TREASURY




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1001            Department of the Treasury Acquisition 
                    Regulation (DTAR) System................         583
1002            Definitions of Words and Terms..............         584
                   SUBCHAPTER B--ACQUISITION PLANNING
1009            Contractor Qualifications...................         585
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1016            Types of contracts..........................         586
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1019            Small business programs.....................         587
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1028            Bonds and insurance.........................         591
1032            Contract financing..........................         591
1033            Protests, disputes, and appeals.............         592
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1034            Major system acquisition....................         593
1036            Construction and architect-engineer 
                    contracts...............................         597
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1042            Contract administration and audit services..         598
                     SUBCHAPTER H--CLAUSES AND FORMS
1052            Solicitation provisions and contract clauses         599

[[Page 583]]

                          SUBCHAPTER A_GENERAL

   PART 1001_DEPARTMENT OF THE TREASURY ACQUISITION REGULATION (DTAR) 
                                 SYSTEM

               Subpart 1001.1_Purpose, Authority, Issuance

Sec.

Sec. 1001.101 Purpose.

Sec. 1001.104 Applicability.

Sec. 1001.105 Issuance.

Sec. 1001.105-1 Publication and code arrangement.

Sec. 1001.105-2 Arrangement of regulations.

Sec. 1001.105-3 Copies.

Sec. 1001.106 OMB Approval under the Paperwork Reduction Act.

              Subpart 1001.3_Agency Acquisition Regulations


Sec. 1001.301 Policy.

Sec. 1001.304 Agency control and compliance procedures.

                 Subpart 1001.4_Deviations From the FAR


Sec. 1001.403 Individual deviations.

Sec. 1001.404 Class deviations.

      Subpart 1001.6_Career Development, Contracting Authority and 
                            Responsibilities


Sec. 1001.670 Contract clause.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

               Subpart 1001.1_Purpose, Authority, Issuance



Sec. 1001.101  Purpose.

    This subpart establishes Chapter 10, the Department of the Treasury 
Acquisition Regulation (DTAR), within Title 48 of the Federal 
Acquisition Regulation (FAR) System. The DTAR contains policies and 
procedures that supplement FAR coverage and directly affect the 
contractual relationship between the Department of the Treasury and its 
business partners (e.g., prospective offerors/bidders and contractors). 
When FAR coverage is adequate, there will be no corresponding DTAR 
coverage.



Sec. 1001.104  Applicability.

    The DTAR applies to all acquisitions of supplies and services, which 
obligate appropriated funds. For acquisitions made from non-appropriated 
funds, the Senior Procurement Executive will determine the rules and 
procedures that will apply. The DTAR does not apply to the acquisitions 
of the U.S. Mint.



Sec. 1001.105  Issuance.



Sec. 1001.105-1  Publication and code arrangement.

    The DTAR and its subsequent changes will be published in the Federal 
Register and codified in the Code of Federal Regulations (CFR). The DTAR 
will be issued as 48 CFR Chapter 10.



Sec. 1001.105-2  Arrangement of regulations.

    (a) References and citations. The DTAR is divided into the same 
parts, subparts, sections, subsections, and paragraphs as the FAR except 
that 10 or 100 will precede the DTAR citation so that there are four 
numbers to the left of the first decimal. Reference to DTAR material 
must be made in a manner similar to that prescribed by FAR 1.105-2(c).



Sec. 1001.105-3  Copies.

    Copies of the DTAR in Federal Register or CFR form may be purchased 
from the Superintendent of Documents, Government Printing Office (GPO), 
Washington, DC 20402.



Sec. 1001.106  OMB Approval under the Paperwork Reduction Act.

    OMB has assigned the following control numbers that must appear on 
the upper right corner of the face page of each solicitation, contract, 
modification, and order: OMB Control No. 1505-0081 (Offeror 
submissions), OMB Control No. 1505-0080 (Contractor submissions), OMB 
Control No. 1505-0107 (Protests). OMB regulations and OMB's approval and 
assignment of control numbers are conditioned upon Treasury bureaus not 
requiring more than three copies (including the original) of any

[[Page 584]]

document of information. OMB has granted a waiver to permit the 
Department to require up to eight copies of proposal packages, including 
proprietary data, for solicitations, provided that contractors who 
submit only an original and two copies will not be placed at a 
disadvantage.

              Subpart 1001.3_Agency Acquisition Regulations



Sec. 1001.301  Policy.

    (a)(1) The DTAR (48 CFR Chapter 10) is issued for Treasury 
implementation in accordance with the authority cited in FAR 1.301(b). 
The DTAR supplements the Federal Acquisition Regulation by establishing 
uniform policies for all acquisition activities throughout the 
Department of the Treasury, except for the United States Mint.



Sec. 1001.304  Agency control and compliance procedures.

    (a) The DTAR is under the direct oversight and control of Treasury's 
Office of the Procurement Executive (OPE), which is responsible for the 
evaluation, review, and issuance of all Department-wide acquisition 
regulations and guidance.

                 Subpart 1001.4_Deviations from the FAR



Sec. 1001.403  Individual deviations.

    The SPE is authorized to approve individual contract FAR and DTAR 
deviations.



Sec. 1001.404  Class deviations.

    (a) The SPE is authorized to approve class FAR and DTAR deviations.

      Subpart 1001.6_Career Development, Contracting Authority and 
                            Responsibilities



Sec. 1001.670  Contract clause.

    Contracting Officers must insert a clause substantially similar to 
the clause in section 1052.201-70, Contracting Officer's Technical 
Representative (COTR) Appointment and Authority, in all solicitations 
and contracts. Exceptions to the requirement for inclusion of the COTR 
clause and the appointment of a COTR may be made at the discretion of 
the BCPO.

                PART 1002_DEFINITIONS OF WORDS AND TERMS

                       Subpart 1002.1_Definitions

Sec.

Sec. 1002.101 Definitions.

Sec. 1002.70 Abbreviations.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

                       Subpart 1002.1_Definitions



Sec. 1002.101  Definitions.

    Bureau means any one of the following Treasury organizations:
    (1) Alcohol and Tobacco Tax and Trade Bureau (TTB);
    (2) Bureau of Engraving & Printing (BEP);
    (3) Bureau of Public Debt (BPD);
    (4) Departmental Offices (DO);
    (5) Financial Crimes Enforcement Network (FinCEN);
    (6) Financial Management Service (FMS);
    (7) Office of the Inspector General (OIG);
    (8) Internal Revenue Service (IRS);
    (9) Office of the Comptroller of the Currency (OCC);
    (10) Special Inspector General for the Troubled Asset Relief Program 
(SIGTARP);
    (11) Treasury Inspector General for Tax Administration (TIGTA); or
    (12) United States Mint.

[77 FR 40304, July 9, 2012]



Sec. 1002.70  Abbreviations.

BCPO Bureau Chief Procurement Officer
COTR Contracting Officer's Technical Representative
HCA Head of the Contracting Activity
IPP Internet Payment Platform
OPE Office of the Procurement Executive
OSDBU Office of Small and Disadvantaged Business Utilization
SPE Senior Procurement Executive

[76 FR 42057, July 18, 2011, as amended at 77 FR 40304, July 9, 2012]

[[Page 585]]

                    SUBCHAPTER B_ACQUISITION PLANNING

                   PART 1009_CONTRACTOR QUALIFICATIONS

               Subpart 1009.2_Qualifications Requirements

Sec.

Sec. 1009.204-70 Contractor publicity.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

               Subpart 1009.2_Qualifications Requirements



Sec. 1009.204-70  Contractor publicity.

    31 U.S.C. 333(a) prohibits the use of Treasury names, abbreviations, 
or symbols, in connection with, or as a part of, any advertisement, 
solicitation, business activity, or product, in a manner that may imply 
endorsement by Treasury. Bureaus shall insert a clause substantially the 
same as 1052.210-70 Contractor Publicity in all solicitations and 
contracts.

[[Page 586]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

                      PART 1016_TYPES OF CONTRACTS

              Subpart 1016.5_Indefinite-Delivery Contracts

Sec.

Sec. 1016.505 Ordering.

    Authority: Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

              Subpart 1016.5_Indefinite-Delivery Contracts



Sec. 1016.505  Ordering.

    (b)(6) Bureaus shall designate a Task and Delivery Ombudsman in 
accordance with bureau procedures. In the absence of a designation, the 
Bureau Competition Advocate will serve in that capacity.

[[Page 587]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 1019_SMALL BUSINESS PROGRAMS

                         Subpart 1019.2_Policies

Sec.

Sec. 1019.202 Specific policies.

Sec. 1019.202-70 Treasury's Mentor-Prot[eacute]g[eacute] Program

        Subpart 1019.7_The Small Business Subcontracting Program


Sec. 1019.705 Responsibilities of the Contracting Officer Under the 
          Subcontracting Assistant Program.

Sec. 1019.705-4 Reviewing the Subcontracting Plan.

 Subpart 1019.8_Contracting With the Small Business Administration (The 
                              8(a) Program)


Sec. 1019.811 Preparing the contracts.

Sec. 1019.811-3 Contract clauses.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

                         Subpart 1019.2_Policies



Sec. 1019.202  Specific policies.



Sec. 1019.202-70  The Treasury Mentor Prot[eacute]g[eacute] Program.

    (a)-(b) [Reserved]
    (c) Non-affiliation. For purposes of the Small Business Act, a 
prot[eacute]g[eacute] firm may not be considered an affiliate of a 
mentor firm solely on the basis that the prot[eacute]g[eacute] firm is 
receiving developmental assistance referred to in paragraph (m) of this 
section, from such mentor firm under the Mentor-Prot[eacute]g[eacute] 
Program.
    (d) General policy. (1) Eligible contractors, not included on the 
``List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs,'' that are approved as mentors will enter into agreements with 
eligible prot[eacute]g[eacute]s. Mentors provide appropriate 
developmental assistance to enhance the capabilities of 
prot[eacute]g[eacute]s to perform as contractors or subcontractors.
    (2) A firm's status as a prot[eacute]g[eacute] under a Treasury 
contract shall not have an effect on the firm's eligibility to seek 
other contracts or subcontracts.
    (e) Incentives for contractor participation. (1) Under the Small 
Business Act, 15 U.S.C. 637(d)(4)(E), Treasury is authorized to provide 
appropriate incentives in negotiated contractual actions to encourage 
subcontracting opportunities consistent with the efficient and 
economical performance of the contract. Proposed mentor-
prot[eacute]g[eacute] efforts will be considered during the evaluation 
of such negotiated, competitive offers. Contracting Officers may 
provide, as an incentive, a bonus score, not to exceed 5% of the 
relative importance assigned to the non-price factors. If this incentive 
is used, the Contracting Officer shall include language in the 
solicitation indicating that this adjustment may occur.
    (2) Before awarding a contract that requires a subcontracting plan, 
the existence of a mentor-prot[eacute]g[eacute] arrangement, and 
performance (if any) under such an existing arrangement, will be 
considered by the Contracting Officer in:
    (i) Evaluating the quality of a proposed subcontracting plan under 
FAR 19.705-4; and,
    (ii) Evaluating the contractor compliance with the subcontracting 
plans submitted in previous contracts as a factor in determining 
contractor responsibility under FAR 19.705-5(a)(1).
    (3) The Office of Small and Disadvantaged Business Utilization 
(OSDBU) Mentoring Award is a non-monetary award that will be presented 
(annually on a fiscal year basis or as often as is appropriate) to the 
mentoring firm providing the most effective developmental support of a 
prot[eacute]g[eacute]. The Mentor-Prot[eacute]g[eacute] Program Manager 
will recommend an award winner to the Director, OSDBU.
    (f) [Reserved]
    (g) Mentor firms. A mentor firm may be either a large or small 
business, eligible for award of a Government contract that can provide 
developmental assistance to enhance the capabilities of 
prot[eacute]g[eacute]s to perform as subcontractors. Mentors will be 
encouraged to enter into arrangements with prot[eacute]g[eacute]s

[[Page 588]]

in addition to firms with whom they have established business 
relationships.
    (h) Prot[eacute]g[eacute] firms. (1) For selection as a 
prot[eacute]g[eacute], a firm must be:
    (i) A small business, women-owned small business, small 
disadvantaged business, small business owned and controlled by veteran 
or service disabled veteran, or qualified HUBZone small business, or a 
qualified 8(a) concern;
    (ii) Qualified as a small business under the NAICS code for the 
services or supplies to be provided by the prot[eacute]g[eacute] under 
its subcontract to the mentor; and
    (iii) Eligible for award of Government contracts.
    (2) Except small disadvantaged businesses and qualified HUBZone 
small business firms, a prot[eacute]g[eacute] firm may self-certify to a 
mentor firm that it meets the requirements set forth in paragraph (h)(1) 
of this section. Mentors may rely in good faith on written 
representations by potential prot[eacute]g[eacute]s that they meet the 
specified eligibility requirements. The h(1)(i), small disadvantaged 
business, or qualified HUBZone small business status eligibility and 
documentation requirements are determined according to FAR 19.304 and 
19.1303, respectively.
    (3) Prot[eacute]g[eacute]s may not have multiple mentors unless 
approved, in writing, by the Director, OSDBU. Prot[eacute]g[eacute]s 
participating in other agency mentor prot[eacute]g[eacute] programs in 
addition to the Treasury Mentor-Prot[eacute]g[eacute] Program should 
maintain a system for preparing separate reports of mentoring activity 
for each agency's program.
    (i) Selection of prot[eacute]g[eacute] firms. (1) Mentor firms will 
be solely responsible for selecting prot[eacute]g[eacute] firms. The 
mentor is encouraged to identify and select the types of 
prot[eacute]g[eacute] firms listed in 1019.202-70(h). Mentor firms may 
have multiple prot[eacute]g[eacute]s.
    (2) The selection of prot[eacute]g[eacute] firms by mentor firms may 
not be protested. Any question regarding the size or eligibility status 
of an entity selected by a mentor to be a prot[eacute]g[eacute] must be 
referred solely to Treasury's OSDBU for resolution. Treasury, at its 
discretion, may seek an advisory opinion from the Small Business 
Administration (SBA).
    (j) Application process for mentor firms to participate in the 
program. (1) Firms interested in becoming a mentor firm may apply in 
writing to Treasury's OSDBU. The application will be evaluated based 
upon the description of the nature and extent of technical and 
managerial support proposed as well as the extent of other developmental 
assistance in the form of equity investment, loans, joint-venture 
support and traditional subcontracting support.
    (k) OSDBU review and approval process of agreement. (1) OSDBU will 
review the information specified in 1019.202-70(l). The OSDBU review 
will be completed no later than 30 calendar days after receipt.
    (2) Upon completion of the review, the mentor may implement the 
developmental assistance program.
    (3) An approved agreement will be incorporated into the mentor 
firm's contract(s) with Treasury.
    (4) If OSDBU disapproves the agreement, the mentor may provide 
additional information for reconsideration. Upon finding deficiencies 
that OSDBU considers correctable, OSDBU will notify the mentor and 
provide a list of defects. Any additional information or corrections 
requested will be provided within 30 calendar days. The review of any 
supplemental material will be completed within 30 calendar days after 
receipt by OSDBU. When submission of additional data is required during 
a proposal evaluation for a new contract award, shorter timeframes for 
submission, review and re-evaluation for approval may be authorized by 
OSDBU.
    (5) The agreement defines the relationship between the mentor and 
prot[eacute]g[eacute] firms only. The agreement itself does not create 
any privity of contract between the mentor or prot[eacute]g[eacute] and 
Treasury.
    (l) Agreement contents. The contents of the agreement will contain:
    (1) Names and addresses of mentor and prot[eacute]g[eacute] firms 
and a point of contact within both firms who will oversee the agreement;
    (2) Procedures for the mentor firm to notify the 
prot[eacute]g[eacute] firm, OSDBU and the Contracting Officer, in 
writing, at least 30 days in advance of the mentor

[[Page 589]]

firm's intent to voluntarily withdraw from the Mentor-
Prot[eacute]g[eacute] Program;
    (3) Procedures for a prot[eacute]g[eacute] firm to notify the mentor 
firm in writing at least 30 days in advance of the prot[eacute]g[eacute] 
firm's intent to voluntarily terminate the mentor-prot[eacute]g[eacute] 
agreement. The mentor must notify OSDBU and the Contracting Officer 
immediately upon receipt of such notice from the prot[eacute]g[eacute];
    (4) Each proposed mentor-prot[eacute]g[eacute] relationship must 
include information on the mentor's ability to provide developmental 
assistance to the prot[eacute]g[eacute] and how that assistance will 
potentially increase contracting and subcontracting opportunities for 
the prot[eacute]g[eacute] firm;
    (5) A description of the type of developmental program that will be 
provided by the mentor firm to the prot[eacute]g[eacute] firm, to 
include a description of the potential subcontract work, and a schedule 
for providing assistance and criteria for evaluation of the 
prot[eacute]g[eacute]s developmental success;
    (6) A listing of the types and dollar amounts of subcontracts that 
may be awarded to the prot[eacute]g[eacute] firm;
    (7) Program participation term;
    (8) Termination procedures;
    (9) Plan for accomplishing work should the agreement be terminated; 
and
    (10) Other terms and conditions, as appropriate.
    (m) Developmental assistance. The forms of developmental assistance 
a mentor can provide to a prot[eacute]g[eacute] include:
    (1) Management guidance relating to financial management, 
organizational management, overall business management/planning, 
business development, and technical assistance.
    (2) Loans;
    (3) Rent-free use of facilities and/or equipment;
    (4) Property;
    (5) Temporary assignment of personnel to prot[eacute]g[eacute] for 
purpose of training; and
    (6) Any other types of mutually beneficial assistance.
    (n) Obligation. (1) Mentor or prot[eacute]g[eacute] firms may 
voluntarily withdraw from the Mentor-Prot[eacute]g[eacute] Program. 
However, such withdrawal shall not excuse the contractor from compliance 
with contract requirements.
    (2) At the conclusion of each year in the Mentor-
Prot[eacute]g[eacute] Program, the contractor and prot[eacute]g[eacute] 
must formally brief the Department of the Treasury team regarding 
program accomplishments as they pertain to the approved agreement. 
Individual briefings may be conducted, at the request of either party. 
Treasury will consider the following:
    (i) Specific actions taken by the mentor, during the evaluation 
period, to increase the participation of prot[eacute]g[eacute]s as 
suppliers to the Federal government and to commercial entities;
    (ii) Specific actions taken by the mentor, during the evaluation 
period, to develop the technical and corporate administrative expertise 
of a prot[eacute]g[eacute] as defined in the agreement;
    (iii) To what extent the prot[eacute]g[eacute] has met the 
developmental objectives in the agreement; and
    (iv) To what extent the mentor firm's participation in the Mentor-
Prot[eacute]g[eacute] Program resulted in the prot[eacute]g[eacute] 
receiving contract(s) and subcontract(s) from private firms and agencies 
other than the Department of the Treasury.
    (v) Mentor and prot[eacute]g[eacute] firms must submit an evaluation 
to OSDBU at the conclusion of the mutually agreed upon program period, 
the conclusion of the contract, or the voluntary withdrawal by either 
party from the Mentor-Prot[eacute]g[eacute] Program, whichever comes 
first.
    (o) [Reserved]
    (p) Solicitation provisions and contract clauses (1) Insert the 
provision at 1052.219-73, Department of the Treasury Mentor-
Prot[eacute]g[eacute] Program, in all unrestricted solicitations 
exceeding $500,000 ($1,000,000 for construction) that offer 
subcontracting possibilities.
    (2) Insert the clause at 1052.219-75, Mentor Requirements and 
Evaluation, in contracts where the contractor is a participant in the 
Treasury Mentor-Prot[eacute]g[eacute] Program.

[[Page 590]]

 Subpart 1019.8_Contracting With the Small Business Administration (The 
                              8(A) Program)



Sec. 1019.81  Preparing the contracts.



Sec. 1019.811-3  Contract clauses.

    (d)(3) Insert the clause at 1052.219-18, Notification of Competition 
Limited to Eligible 8(a) Concerns--Alternate III (Deviation), for 
paragraph (c) of FAR 52.219-18, Notification of Competition Limited to 
Eligible 8(a) Concerns, in all solicitations and contracts that exceed 
$100,000 and are processed under 1019.8.
    (f) Insert the clause at 1052.219-72, Section 8(a) Direct Awards, in 
solicitations and contracts that exceed $100,000 and are processed under 
1019.8 for paragraph (c) of FAR 52.219-11, Special 8(a) Contract 
Conditions; FAR 52.219-12, Special 8(a) Subcontract Conditions; and FAR 
52.219-17, Section 8(a) Award.

[[Page 591]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                      PART 1028_BONDS AND INSURANCE

                        Subpart 1028.3_Insurance

Sec.

Sec. 1028.307 Insurance under cost-reimbursement contracts.

Sec. 1028.307-1 Group insurance plans.

Sec. 1028.310 Contract clause for work on a Government installation.

Sec. 1028.310-70 Contract clause.

Sec. 1028.311 Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.

Sec. 1028.311-2 Agency solicitation provisions and contract clauses.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

                        Subpart 1028.3_Insurance



Sec. 1028.307  Insurance under cost-reimbursement contracts.



Sec. 1028.307-1  Group insurance plans.

    (a) Plans shall be submitted to the CO.
    (b) [Reserved]



Sec. 1028.310  Contract clause for work on a Government installation.



Sec. 1028.310-70  Contract clause.

    (a) Insert a clause substantially similar to 1052.228-70, 
``Insurance Requirements,'' in all solicitations and contracts that 
contain the clause at FAR 52.228-5.



Sec. 1028.311  Solicitation provision and contract clause on liability 
          insurance under cost reimbursement contracts.



Sec. 1028.311-2  Agency solicitation provisions and contract clauses.

    Insert a clause substantially similar to 1052.228-70, ``Insurance 
Requirements,'' in all solicitations and contracts that contain the 
clause at FAR 52.228-

                      PART 1032_CONTRACT FINANCING

          Subpart 1032.1_Non-Commercial Item Purchase Financing

Sec.

Sec. 1032.113 Customary contract financing.

            Subpart 1032.2_Commercial Item Purchase Financing


Sec. 1032.202 General.

Sec. 1032.202-1 Policy.

Subpart 1032.70_Electronic Submission and Processing of Payment Requests


Sec. 1032.7000 Scope of subpart.

Sec. 1032.7001 Definitions.

Sec. 1032.7002 Policy.

Sec. 1032.7003 Contract clause.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

          Subpart 1032.1_Non-Commercial Item Purchase Financing



Sec. 1032.113  Customary contract financing.

    The specified arrangements are considered customary within Treasury.

            Subpart 1032.2_Commercial Item Purchase Financing



Sec. 1032.202  General.



Sec. 1032.202-1  Policy.

    (b)(2) Commercial interim payments and commercial advance payments 
may also be made when the contract price is at or below the simplified 
acquisition threshold.

Subpart 1032.70_Electronic Submission and Processing of Payment Requests

    Source: 77 FR 40304, July 9, 2012, unless otherwise noted.

[[Page 592]]



Sec. 1032.7000  Scope of subpart.

    This subpart prescribes policies and procedures for electronic 
submission and processing of payment requests.



Sec. 1032.7001  Definitions.

    ``Payment request,'' as used in this subpart, is defined in the 
clause at 1052.232-7003, Electronic Submission of Payment Requests.



Sec. 1032.7002  Policy.

    (a) Contracts awarded after October 1, 2012, shall require the 
electronic submission of payment requests, except for--
    (1) Purchases paid for with a Government-wide commercial purchase 
card;
    (2) Classified contracts or purchases when electronic submission and 
processing of payment requests could compromise classified information 
or national security;
    (b) Where a contract otherwise requires the electronic submission of 
invoices, the Contracting Officer may authorize alternate procedures 
only if the Contracting Officer makes a written determination that:
    (1) The Department of the Treasury is unable to receive electronic 
payment requests or provide acceptance electronically;
    (2) The contractor has demonstrated that electronic submission would 
be unduly burdensome; or
    (3) The contractor is in the process of transitioning to electronic 
submission of payment requests, but needs additional time to complete 
such transition. Authorizations granted on this basis must specify a 
date by which the contractor will transition to electronic submission.
    (c) Except as provided in paragraphs (a) and (b) of this section, 
Treasury officials shall process electronic payment submissions through 
the Treasury Internet Payment Platform or successor system.
    (d) If the requirement for electronic submission of payment requests 
is waived under paragraph (a)(2) or paragraph (b) of this section, the 
contract or alternate payment authorization, as applicable, shall 
specify the form and method of payment request submission.



Sec. 1032.7003  Contract clause.

    Except as provided in 1032.7002(a), use the clause at 1052.232-7003, 
Electronic Submission of Payment Requests--Internet Payment Platform, in 
solicitations issued and contracts awarded after October 1, 2012.

                PART 1033_PROTESTS, DISPUTES, AND APPEALS

                   Subpart 1033.2_Disputes and Appeals

Sec.

Sec. 1033.201 Definitions.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

                   Subpart 1033.2_Disputes and Appeals



Sec. 1033.201  Definitions.

    Agency Board of Contract Appeals means the Civilian Board of 
Contract Appeals (CBCA). The CBCA is the authorized representative of 
the Secretary of the Treasury in hearing, considering, and determining 
all appeals of decisions of Contracting Officers filed by contractors 
pursuant to FAR Subpart 33.2. Appeals are governed by the Rules of 
Procedure of the CBCA.

[[Page 593]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                   PART 1034_MAJOR SYSTEM ACQUISITION

                          Subpart 34.0_General

Sec.

Sec. 1034.001 Definitions.

Sec. 1034.004 Acquisition strategy.

               Subpart 34.2_Earned Value Management System


Sec. 1034.201 Policy.

Sec. 1034.202 Integrated Baseline Reviews.

Sec. 1034.203 Solicitation provisions and contract clauses.

    Authority: 41 U.S.C. 418b.

                          Subpart 34.0_General



Sec. 1034.001  Definitions.

    Core Earned Value Management is a process for ensuring that the 
contractor's self validated earned value management system is capable of 
producing earned value management data and meets, at a minimum, the 
following core ANSI/EIA Standard-748 criteria:
    (1) (ANSI 1) Define the authorized work elements for the 
program. A work breakdown structure (WBS), tailored for effective 
internal management control, is commonly used in this process.
    (2) (ANSI 2) Identify the program organizational structure 
including the major subcontractors responsible for accomplishing the 
authorized work, and define the organizational elements in which work 
will be planned and controlled.
    (3) (ANSI 3) Provide for the integration of the company's 
planning, scheduling, budgeting, work authorization, and cost 
accumulation processes with each other, and as appropriate, the program 
WBS and the program organizational structure.
    (4) (ANSI 6) Schedule the authorized work in a manner that 
describes the sequence of work and identifies significant task 
interdependencies required to meet the needs of the program.
    (5) (ANSI 7) Identify physical products, milestones, 
technical performance goals, or other indicators that will be used to 
measure progress.
    (6) (ANSI 8) Establish and maintain a time-phased budget 
baseline, at the control account level, against which program 
performance can be measured. Initial budgets established for performance 
measurement will be based on either internal management goals or the 
external customer negotiated target cost including estimates for 
authorized but vaguely defined work. Budget for far-term efforts may be 
held in higher-level accounts until an appropriate time for allocation 
at the control account level. On government contracts, if an over-target 
baseline is used for performance measurement reporting purposes, prior 
notification must be provided to the customer.
    (7) (ANSI 16) Record direct costs in a manner consistent 
with the budgets in a formal system controlled by the general books of 
account.
    (8) (ANSI 22) At least on a monthly basis, generate the 
following information at the control account and other levels as 
necessary for management control using actual cost data from, or 
reconcilable with, the accounting system:
    (i) Comparison of the amount of planned budget and the amount of 
budget earned for work accomplished. This comparison provides the 
schedule variance.
    (ii) Comparison of the amount of the budget earned and the actual 
(applied where appropriate) direct costs for the same work. This 
comparison provides the cost variance.
    (9) (ANSI 27) Develop revised estimates of cost at 
completion based on performance to date, commitment values for material, 
and estimates of future conditions. Compare this information with the 
performance measurement baseline to identify variances at completion 
important to management and any applicable customer reporting 
requirements, including statements of funding requirements.
    (10) (ANSI 28) Incorporate authorized changes in a timely 
manner, recording the effects of such changes in budgets and schedules. 
In the directed effort prior to negotiation of a change,

[[Page 594]]

base such revisions on the amount estimated and budgeted to the program 
organizations.
    Development, Modernization, Enhancement (DME) is the portion of an 
IT investment/project which deals with developing and implementing new 
or enhanced technology in support of an agency's mission.
    Major acquisitions for development are defined as contracts, awarded 
in support of one or more Major IT investments with DME activities, 
which meet the contract threshold for fully applying FAR 34.2 
procedures.
    Performance-based acquisition management means a documented, 
systematic process for program management, which includes integration of 
program scope, schedule and cost objectives, establishment of a baseline 
plan for accomplishment of program objectives, and use of earned value 
techniques for performance measurement during execution of the program. 
A performance-based acquisition (as defined in FAR 37.101) or an 
acquisition with a defined quality assurance plan that includes 
performance standards/measures should be the basis for monitoring the 
contractor.



Sec. 1034.004  Acquisition strategy.

    (a) A program manager's acquisition strategy written at the system 
or investment level in accordance with FAR 7.103(e) shall include at a 
minimum:
    (1) The relationship of each individual acquisition (Contract, 
Delivery Order, Task Order, or Interagency Agreement) to the overall 
investment requirements and management structure;
    (2) What work is being performed in-house (by government personnel) 
versus contracted out for the investment;
    (3) A description of the effort, by acquisition, and the plans to 
include required clauses in the acquisitions;
    (4) A timetable of major acquisition award and administration 
activities, including plans for contract transitions;
    (5) An investment/system surveillance plan;
    (6) Financial and human resource requirements to manage the 
acquisition processes through the investment lifecycle;
    (7) Consideration of optimal contract types, including 
considerations of performance based approaches, small business 
utilization, Section 508, etc.; and
    (8) Assurances that the acquisition strategy section and supporting 
acquisition plans will maximize competition, including enabling 
downstream competition through avoidance of vendor ``lock in''.
    (b) The acquisition strategy shall be approved by a chartered 
interdisciplinary acquisition team that includes a representative of the 
procurement organization designated in accordance with bureau 
procedures.

               Subpart 34.2_Earned Value Management System



Sec. 1034.201  Policy.

    (a) (1) An Earned Value Management System (EVMS) is required for 
major acquisitions for development/modernization/enhancement (DME) in 
accordance with OMB Circular A-11. This includes prototypes and tests to 
select the most cost effective alternative during the Planning Phase, 
the work during the Acquisition Phase, and any developmental, 
modification or upgrade work done during the Operational/Steady State 
Phase. EVMS is to be applied to contractor efforts regardless of 
contract type. The Contracting Officer shall procure the Contractor-
developed component(s) of major project(s) that have been vetted through 
the Treasury governance process and the acquisition has been identified 
by the program manager as requiring the Contractor's use of an EVMS. In 
addition to major acquisitions for development, the Department of the 
Treasury may also require the Contractor's use of an EVMS for other 
acquisitions. The following thresholds apply to DME costs at the 
Contract Line Item Number (CLIN) level for performance-based 
acquisitions and to DME costs at the acquisition level (Contract, Task 
Order, or IAG) for non-performance-based contracts:

[[Page 595]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Applicable                                                         Level of EVMS
 Contract, task order, IAG, or CLIN   Reporting requirements for     ANSI/EIA          Level of EVMS           IBR required            surveillance
               value                        IT investments           criteria     validation/ acceptance                               (contractor)
--------------------------------------------------------------------------------------------------------------------------------------------------------
$50 M...................  Full.......................              32  CFA \1\Acceptance.....  Yes...................  CFA Surveillance
                                                                                                                                   unless another
                                                                                                                                   interested party
                                                                                                                                   alternative is
                                                                                                                                   requested by the
                                                                                                                                   Bureau and approved
                                                                                                                                   by the Treasury CIO.
Between $20M and $50M..............  Full.......................              32  Contractor Self-        Yes...................
                                                                                   Validation.
<$20M..............................  Core.......................              10  Contractor Self-        Independent Baseline    Treasury/Bureau
                                                                                   Validation.             Validation IBR (Core).  Surveillance.*
--------------------------------------------------------------------------------------------------------------------------------------------------------
* In accordance with Bureau Annual Surveillance Strategy.
\1\ CFA--Cognizant Federal Agency (See FAR 42.003).

    (2) For the purpose of this subpart, CLIN may be interpreted as a 
single Contract Line Item Number, Contract Line Item Number with Sub-
CLINs, or Multiple Contract Line Item Numbers included in a single DME 
effort. Do not break down any DME effort below the aggregation of the 
requirement to avoid use of the actual threshold prescriptions.
    (b) Acquisition Planning. All written acquisition plans shall 
include the following:
    (1) A determination from the requirements official as to whether the 
program is a major acquisition as defined under OMB Circular A-11 and 
FAR Part 34;
    (2) If so, whether the program is required to include EVM and if the 
Contractor is required to use an EVMS;
    (3) If so, whether the program official is EVM trained and qualified 
or has support from someone who is EVM trained and certified; and
    (4) Whether a Full Integrated Baseline Review (IBR) will be 
completed within 90 days when the acquisition DME value is $20 Million 
or more, or a Core Integrated Baseline Review when the acquisition DME 
value is less than $20 Million).
    (c) Solicitations and Awards. Unless a waiver has been granted (See 
paragraph (e) of this section), all solicitations and awards for major 
investments with DME valued at $20 Million or more require EVMS from the 
Contractor and its Subcontractor as follows:
    (1) FAR Clause 52.234-4, Earned Value Management System; and, as 
appropriate, 1052.234-4, Earned Value Management System Alternate I) 
(See 1034.203 below), must contain a requirement that the Contractor and 
its subcontractors have:
    (i) AN EVMS that has been determined as meeting the Full criteria of 
ANSI/EIA Standard-748 compliance (valued at $20 Million or more);
    (ii) An EVMS that has been determined as meeting the Core criteria 
of ANSI/EIA Standard-748 compliance (valued at below $20 Million, See 5. 
DTAR Special Solicitation Provisions and Contract Clauses, 1052.234-2 
and 1052.234-3); or
    (iii) That the Contractor deliver a plan to provide EVM data that 
meets the standard.
    (2) Provide for the completion of an IBR, or, as appropriate, for 
subcontracts with DME less than $20 million, an IBR (Core) that meets 
the Government standard, and provide periodic reporting of the EVM data.
    (3) All EVM determinations as set forth in paragraphs 3(c)(i)(A) and 
(B) of this section, shall be documented in the pre-award and contract 
files, as appropriate.
    (d) Program Management. For those acquisitions to which EVM applies, 
the program manager (PM)/(COTR) shall:
    (1) Ensure that EVM requirements are included in the acquisition 
Statement of Objectives (SOO), Performance Work Statement (PWS), or 
Statement of Work (SOW);

[[Page 596]]

    (2) Determine whether the Contractor's EVMS (and that of its 
subcontractors) is ANSI/EIA Standard 748 compliant, or determine whether 
the Contractor's plan to provide EVM data meets the required standard; 
and
    (3) Validate and approve the IBR/IBR (Core) and the subsequently 
issued EVM reports. These program management requirements shall be 
included in the Contracting Officer's written appointment letter to the 
COTR.
    (e) Waivers. In accordance with Bureau policy, a waiver(s) to the 
guidance described within the Department of the Treasury Earned Value 
Management Guide (Treasury EVM Guide) may be granted by the Departmental 
Treasury CIO based on Bureau documented and Bureau CIO approved 
requests. Examples of waiver justifications may include, but are not 
limited to:
    (1) Urgency of work to be performed;
    (2) Limited duration of work to be performed;
    (3) Cost of adding EVMS requirement to a contract versus benefit 
achieved;
    (4) Percentage of DME costs vis-[agrave]-vis the life cycle 
investment costs; and
    (5) Level of risk.



Sec. 1034.202  Integrated Baseline Reviews.

    (a) When an EVMS is required, and depending on the DME CLIN value 
threshold, the Government will conduct a Full IBR or a Core IBR.
    (b) The purpose of the Full IBR and the Core IBR is to verify the 
technical content and the realism of the related performance budgets, 
resources, and schedules. It should provide a mutual understanding of 
the inherent risks in offerors'/contractors' performance plans and the 
underlying management control systems, and it should formulate a plan to 
handle these risks.
    (c) Both the IBR and the IBR (Core) are joint assessments by the 
offeror or Contractor, and the Government, of the--
    (1) Ability of the project's technical plan to achieve the 
objectives of the scope of work;
    (2) Adequacy of the time allocated for performing the defined tasks 
to successfully achieve the project schedule objectives;
    (3) Ability of the Performance Measurement Baseline (PMB) to 
successfully execute the project and attain cost objectives, recognizing 
the relationship between budget resources, funding, schedule, and scope 
of work;
    (4) Availability of personnel, facilities, and equipment when 
required, to perform the defined tasks needed to execute the program 
successfully; and
    (5) The degree to which the management process provides effective 
and integrated technical/schedule/cost planning and baseline control.
    (d) An IBR/IBR (Core) may be held either pre- or post-award; 
however, the post-award IBR/IBR (Core) must be completed within 90 days 
after award, or the Contracting Officer shall obtain a copy of the 
Program Manager's written review of the requirement and assessment of 
the IBR/IBR (Core) timing based on the risk associated with the 
acquisition. While a post-award IBR is preferred, a pre-award IBR will 
be acceptable.

    Note: The IBR (Core) may be included within the Quality Assurance 
Surveillance Plan (QASP).

    (e) The solicitation and award shall include the process and 
schedule for EVMS validation as meeting the ANSI/EIA 748 through EVMS 
Compliance Recognition documents or a Compliance Evaluation Review where 
a compliance document does not exist, and periodic systems surveillance.



Sec. 1034.203  Solicitation provisions and contract clauses.

    (a) For major investment acquisitions that included a DME effort 
value of greater than $50 Million, the Contracting Officer shall follow 
the requirements provided at FAR Subpart 34.203.
    (b) For major investment acquisitions that include a DME effort with 
a value between $20-$50 Million:
    (1) The Contracting Officer shall insert the FAR provision at FAR 
52.234-2, Notice of Earned Value Management System--Pre-Award IBR, with 
the clause at 1052.234-2, Notice of Earned Value System--Pre-Award 
Alternate I in solicitations and awards that require the contractor to 
use an EVMS and for which the Government requires an IBR prior to award.
    (2) The Contracting Officer shall insert the FAR provision at FAR 
52.234-

[[Page 597]]

3, Notice of Earned Value Management System--Post-Award IBR, with 
1052.234-3, Notice of Earned Value System--Post-Award Alternate I in 
solicitations and awards that require the contractor to use an Earned 
Value Management System (EVMS) and for which the Government requires an 
IBR after award.
    (3) The contracting officer shall insert the FAR clause at FAR 
52.234-4, Earned Value Management System, with 1052.234-4, Earned Value 
Management System Alternate I), in solicitations and awards that require 
a contractor to use an EVMS.
    (c) For major acquisitions that include a DME effort with a value of 
less than $20 Million:
    (1) The Contracting Officer shall insert the provision 1052.234-70, 
Notice of Earned Value Management System--Pre-Award IBR (Core), in 
solicitations for awards that require the contractor to use an Earned 
Value Management System (EVMS) and for which the Government requires an 
IBR prior to award.
    (2) The Contracting Officer shall insert the provision 1052.234-71, 
Notice of Earned Value Management System--Post-Award IBR (Core), in 
solicitations for contracts that require the contractor to use an Earned 
Value Management System (EVMS) and for which the Government requires an 
IBR after award.
    (3) The Contracting Officer shall insert the clause 1052.234-72, 
Core Earned Value Management System, in solicitations and awards that 
require a contractor to use an EVMS.

         PART 1036_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

               Subpart 1036.6_Architect-Engineer Services

Sec.

Sec. 1036.602-5 Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

               Subpart 1036.6_Architect-Engineer Services



Sec. 1036.602-5  Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

    Bureaus are authorized to use either process.

[[Page 598]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

          PART 1042_CONTRACT ADMINISTRATION AND AUDIT SERVICES

Sec.

Sec. 1042.1500 Procedures.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.



Sec. 1042.1500  Procedures.

    Contracting Officers are responsible for preparing interim and final 
past performance evaluations.

[[Page 599]]

                     SUBCHAPTER H_CLAUSES AND FORMS

         PART 1052_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

             Subpart 1052.2_Texts of Provisions and Clauses

Sec.

Sec. 1052.201-70 Contracting Officer's Technical Representative (COTR) 
          appointment and authority.

Sec. 1052.210-70 Contractor publicity.

Sec. 1052.219-18 Notification of competition limited to eligible 8(a) 
          Concerns--Alternate III (Deviation).

Sec. 1052.219.72 Section 8(a) direct awards.

Sec. 1052.219-73 Department of the Treasury Mentor-Prot[eacute]g[eacute] 
          Program.

Sec. 1052.219-75 Mentor requirements and evaluation.

Sec. 1052.228-70 Insurance requirements.

Sec. 1052.232-7003 Electronic submission of payment requests.

Sec. 1052.234-2 Notice of Earned Value Management System--Pre-Award 
          IBR--Alternate I.

Sec. 1052.234-3 Notice of Earned Value Management System--Post-Award 
          IBR--Alternate I.

Sec. 1052.234-4 Earned Value Management System--Alternate I.

Sec. 1052.234-70 Notice of Earned Value Management System--Pre-Award IBR 
          (Core).

Sec. 1052.234-71 Notice of Earned Value Management System--Post-Award 
          IBR (Core).

Sec. 1052.234-72 Core Earned Value Management System.

    Authority: 41 U.S.C. 418b.

    Source: 76 FR 42057, July 18, 2011, unless otherwise noted.

             Subpart 1052.2_Texts of Provisions and Clauses



Sec. 1052.201-70  Contracting Officer's Technical Representative (COTR) 
          appointment and authority.

    As prescribed in 1001.670-6, insert the following clause:

 Contracting Officer's Technical Representative (COTR) Appointment and 
                          Authority (AUG 2011)

    (a) The COTR is ----------[insert name, address and telephone 
number].
    (b) Performance of work under this contract is subject to the 
technical direction of the COTR identified above, or a representative 
designated in writing. The term ``technical direction'' includes, 
without limitation, direction to the contractor that directs or 
redirects the labor effort, shifts the work between work areas or 
locations, and/or fills in details and otherwise serves to ensure that 
tasks outlined in the work statement are accomplished satisfactorily.
    (c) Technical direction must be within the scope of the contract 
specification(s)/work statement. The COTR does not have authority to 
issue technical direction that:
    (1) Constitutes a change of assignment or additional work outside 
the contract specification(s)/work statement;
    (2) Constitutes a change as defined in the clause entitled 
``Changes'';
    (3) In any manner causes an increase or decrease in the contract 
price, or the time required for contract performance;
    (4) Changes any of the terms, conditions, or specification(s)/work 
statement of the contract;
    (5) Interferes with the contractor's right to perform under the 
terms and conditions of the contract; or
    (6) Directs, supervises or otherwise controls the actions of the 
contractor's employees.
    (d) Technical direction may be oral or in writing. The COTR must 
confirm oral direction in writing within five workdays, with a copy to 
the Contracting Officer.
    (e) The Contractor shall proceed promptly with performance resulting 
from the technical direction issued by the COTR. If, in the opinion of 
the contractor, any direction of the COTR or the designated 
representative falls within the limitations of (c) above, the contractor 
shall immediately notify the Contracting Officer no later than the 
beginning of the next Government work day.
    (f) Failure of the Contractor and the Contracting Officer to agree 
that technical direction is within the scope of the contract shall be 
subject to the terms of the clause entitled ``Disputes.''

                             (End of clause)



Sec. 1052.210-70  Contractor publicity.

    As prescribed in 1009.204-70, insert the following clause:

                     Contractor Publicity (AUG 2011)

    The Contractor, or any entity or representative acting on behalf of 
the Contractor, shall not refer to the equipment or services furnished 
pursuant to the provisions of this contract in any news release or 
commercial advertising, or in connection with any news release or 
commercial advertising, without first obtaining explicit written consent 
to do

[[Page 600]]

so from the Contracting Officer. Should any reference to such equipment 
or services appear in any news release or commercial advertising issued 
by or on behalf of the Contractor without the required consent, the 
Government shall consider institution of all remedies available under 
applicable law, including 31 U.S.C. 333, and this contract. Further, any 
violation of this provision may be considered during the evaluation of 
past performance in future competitively negotiated acquisitions.

                             (End of clause)



Sec. 1052.219-18  Notification of competition limited to eligible 8(a) 
          concerns--Alternate III (Deviation) (May 1998).

    In accordance with 1019.811-3(d)(3), substitute the following for 
the paragraph (c) in FAR 52.219-18:
    (c) Any award resulting from this solicitation will be made directly 
by the contracting officer to the successful 8(a) offeror selected 
through the evaluation criteria set forth in this solicitation.



Sec. 1052.219-72  Section 8(a) direct awards.

    As prescribed in 1019.811-3(f), insert the following clause:

           8(a) Business Development Program Awards (JUN 2003)

    (a) This purchase/delivery/task order or contract is issued by the 
contracting activity directly to the 8(a) program participant/contractor 
pursuant to the Partnership Agreement between the Small Business 
Administration (SBA) and the Department of the Treasury. However, the 
Small Business Administration is the prime contractor and retains 
responsibility for 8(a) certification, 8(a) eligibility determinations 
and related issues, and provides counseling and assistance to the 8(a) 
contractor under the 8(a) Business Development program. The cognizant 
SBA district office is:
[To be completed by the contracting officer at the time of award]
    (b) The contracting officer is responsible for administering the 
purchase/delivery/task order or contract and taking any action on behalf 
of the Government under the terms and conditions of the purchase/
delivery/task order or contract, to include providing the cognizant SBA 
district office with a signed copy of the purchase/delivery/task order 
or contract award within 15 days of the award. However, the contracting 
officer shall give advance notice to the SBA before it issues a final 
notice terminating performance, either in whole or in part, under the 
purchase order or contract. The contracting officer shall also 
coordinate with SBA prior to processing any novation agreement. The 
contracting officer may assign contract administration functions to a 
contract administration office.
    (c) The contractor agrees:
    (1) to notify the contracting officer, simultaneously with its 
notification to SBA (as required by SBA's 8(a) regulations), when the 
owner or owners upon whom 8(a) eligibility is based, plan to relinquish 
ownership or control of the concern. Consistent with 15 U.S.C. 
637(a)(21), transfer of ownership or control shall result in termination 
of the contract for convenience, unless SBA waives the requirement for 
termination prior to the actual relinquishing of control; and,
    (2) to adhere to the requirements of FAR 52.219-14, Limitations on 
Subcontracting.

                             (End of clause)



Sec. 1052.219-73  Department of the Treasury Mentor-
          Prot[eacute]g[eacute] Program.

    As prescribed in 1019.202-70.(p), insert the following clause:

  Department of the Treasury Mentor-Prot[eacute]g[eacute] Program (JUN 
                                  2003)

    (a) Large and small businesses are encouraged to participate in the 
Department of the Treasury Mentor-Prot[eacute]g[eacute] Program. Mentor 
firms provide small business prot[eacute]g[eacute]s with developmental 
assistance to enhance their capabilities and ability to obtain Federal 
contracts.
    (b) Mentor firms are large prime contractors or eligible small 
businesses capable of providing developmental assistance. 
Prot[eacute]g[eacute] firms are small businesses as defined in 13 CFR 
parts 121, 124, and 126.
    Developmental assistance includes technical, managerial, financial, 
and other mutually beneficial assistance to aid prot[eacute]g[eacute]. 
Contractors interested in participating in the Program are encouraged to 
contact the Department of the Treasury Office of Small and Disadvantaged 
Business Utilization for further information.

                           (End of provision)



Sec. 1052.219-75  Mentor Requirements and Evaluation.

    As prescribed in 1019.202-70(p), insert the following clause:

              Mentor Requirements and Evaluation (AUG 2011)

    (a) Mentor and prot[eacute]g[eacute] firms shall submit an 
evaluation to the Department of the Treasury's Office of Small and 
Disadvantaged Business Utilization (OSDBU) at the conclusion of the 
mutually agreed upon Program period, or the voluntary withdrawal by 
either party from the Program, whichever

[[Page 601]]

occurs first. At the conclusion of each year in the Mentor-
Prot[eacute]g[eacute] Program, the prime contractor and 
prot[eacute]g[eacute] will formally brief the Department of the Treasury 
Mentor-Prot[eacute]g[eacute] Program Manager regarding program 
accomplishments under their mentor-prot[eacute]g[eacute] agreements.
    (b) A mentor or prot[eacute]g[eacute] must notify the OSDBU and the 
contracting officer, in writing, at least 30 calendar days in advance of 
the effective date of the firm's withdrawal from the Program. A mentor 
firm must notify the OSDBU and the contracting officer upon receipt of a 
prot[eacute]g[eacute]'s notice of withdrawal from the Program.
    (c) Contracting officers may provide, as an incentive, a bonus 
score, not to exceed 5% of the relative importance assigned to the non-
price factors. If this incentive is used, the contracting officer shall 
include language in the solicitation indicating that this adjustment may 
occur.

                             (End of clause)



Sec. 1052.228-70  Insurance requirements.

    As prescribed in 1028.310-70 and 1028.311-2, insert a clause 
substantially as follows: The contracting officer may specify additional 
kinds (e.g., aircraft public and passenger liability, vessel liability) 
or increased amounts of insurance.

                          Insurance (AUG 2011)

    In accordance with the clause entitled ``Insurance--Work on a 
Government Installation'' [or ``Insurance--Liability to Third Persons''] 
in Section I, insurance of the following kinds and minimum amounts shall 
be provided and maintained during the period of performance of this 
contract:
    (a) Worker's compensation and employer's liability. The contractor 
shall, as a minimum, meet the requirements specified at FAR 28.307-2(a).
    (b) General liability. The contractor shall, at a minimum, meet the 
requirements specified at FAR 28.307-2(b).
    (c) Automobile liability. The contractor shall, at a minimum, meet 
the requirements specified at FAR 28.307-2(c).

                             (End of clause)



Sec. 1052.232-7003  Electronic submission of payment requests.

    As prescribed in 1032.7003, use the following clause:

          Electronic Submission of Payment Requests (DATE TBD)

    (a) Definitions. As used in this clause--
    (1) ``Payment request'' means a bill, voucher, invoice, or request 
for contract financing payment with associated supporting documentation. 
The payment request must comply with the requirements identified in FAR 
32.905(b), ``Payment documentation and process'' and the applicable 
Payment clause included in this contract.
    (2) [Reserved]
    (b) Except as provided in paragraph (c) of this clause, the 
Contractor shall submit payment requests electronically using the 
Internet Payment Platform (IPP). Information regarding IPP is available 
on the Internet at www.ipp.gov. Assistance with enrollment can be 
obtained by contacting the IPP Production Helpdesk via email 
[email protected] or phone (866) 973-3131.
    (c) The Contractor may submit payment requests using other than IPP 
only when the Contracting Officer authorizes alternate procedures in 
writing.
    (d) If alternate payment procedures are authorized, the Contractor 
shall include a copy of the Contracting Officer's written authorization 
with each payment request.

                             (End of clause)

[77 FR 40305, July 9, 2012]



Sec. 1052.234-2  Notice of Earned Value Management System--Pre-Award 
          IBR--Alternate I AUG 2011

    As prescribed in DTAR 1034.203, substitute the following paragraph 
(a) for paragraph (a) of the basic FAR clause:
    (a) The offeror shall provide either documentation that the 
Cognizant Federal Agency has determined that the proposed earned value 
management system (EVMS) complies with the EVMS guidelines in ANSI/EIA 
Standard-748 (ANSI Standard) or documentation that supports the 
offeror's self-validation that the EVMS complies with the ANSI Standard, 
as applicable.

                           (End of provision)



Sec. 1052.234-3  Notice of Earned Value Management System--Post-Award 
          IBR--Alternate I AUG 2011

    As prescribed in DTAR 1034.203, substitute the following paragraph 
(a) for paragraph (a) of the basic FAR clause:
    (a) The offeror shall provide either documentation that the 
Cognizant Federal Agency has determined that the proposed earned value 
management system (EVMS) complies with the EVMS guidelines in ANSI/EIA 
Standard-748 (ANSI Standard) or documentation that supports the 
offeror's self-validation that the EVMS complies with the ANSI Standard, 
as applicable.

[[Page 602]]

                           (End of provision)



Sec. 1052.234-4  Earned Value Management System Alternate I AUG 2011

    As prescribed in DTAR 1034.203, substitute the following paragraph 
(a) for paragraph (a) of the basic FAR clause:
    (a) The Contractor shall use an earned value management system 
(EVMS) that has been determined by the Cognizant Federal Agency (CFA) or 
has been determined through Contractor's self-validation to be compliant 
with the guidelines in ANSI/EIA Standard-748 (current version at the 
time of award) to manage this contract. If the Contractor's current EVMS 
has not been determined compliant at the time of award, see paragraph 
(b) of this clause. The Contractor shall submit reports in accordance 
with the requirements of this contract.

                             (End of clause)



Sec. 1052.234-70  Notice of Earned Value Management System--Pre-Award 
          IBR (Core) AUG 2011

    As prescribed in DTAR 1034.203, insert this provision in 
solicitations and awards that require the Contractor to use an earned 
value management system (EVMS) and for which the Government requires an 
IBR prior to award.
    (a) The offeror shall provide either documentation that the 
Cognizant Federal Agency has determined that the proposed earned value 
management system (EVMS) complies with the EVMS guidelines in ANSI/EIA 
Standard-748 (ANSI Standard) or documentation that supports its self-
validation that the EVMS used for this award complies with Core EVM 
criteria.
    (b) If the offeror proposes to use a system that has not been 
determined to be in compliance with the requirements of paragraph (a) of 
this provision, the offeror shall submit a comprehensive plan for 
compliance with the EVMS guidelines.
    (1) The plan shall--
    (i) Describe the EVMS the offeror intends to use in performance of 
the contracts;
    (ii) Distinguish between the offeror's existing management system 
and modifications proposed to meet the guidelines;
    (iii) Describe the management system and its application in terms of 
the EVMS guidelines;
    (iv) Describe the proposed procedures for administration of the 
guidelines, as applied to subcontracts; and
    (v) Provide documentation describing the process and results of any 
third-party or self-evaluation of the system's compliance with the EVMS 
guidelines.
    (2) The offeror shall provide information and assistance as required 
by the contracting officer to support review of the plan.
    (3) The Government will review and approve the offeror's plan for an 
EVMS before contract award.
    (4) The offeror's EVMS plan must provide milestones that indicate 
when the offeror anticipates that the EVM system will be compliant with 
the requirements in paragraph (a) of this provision.
    (c) Offerors shall identify the major subcontractors, or major 
subcontracted effort if major subcontracts have not been selected 
subject to the guidelines. The prime Contractor and the Government shall 
agree to subcontractors selected for application of the EVMS 
requirements.
    (d) The Government will conduct an Integrated Baseline Review (IBR), 
as designed by the agency, prior to contract award. The objective of the 
IBR is for the Government and the Contractor to jointly assess technical 
areas, such as the Contractor's planning, to ensure complete coverage of 
the contract requirements, logical scheduling of the work activities, 
adequate resources, methodologies for earned value (budgeted cost for 
work performed (BCWP)), and identification of inherent risks.

                           (End of provision)



Sec. 1052.234-71  Notice of Earned Value Management System--Post-Award 
          IBR (Core) AUG 2011

    As prescribed in DTAR 1034.203, insert this provision in 
solicitations and awards that require the contractor to use an earned 
value management system (EVMS) and for which the Government requires an 
IBR after award.
    (a) The offeror shall provide either documentation that the 
Cognizant Federal Agency has determined that the proposed EVMS complies 
with the EVMS guidelines in ANSI/EIA Standard-748 (ANSI Standard) or 
documentation that supports its self-validation that the EVMS used for 
this award complies with Core EVM criteria.
    (b) If the offeror proposes to use a system that has not been 
determined to be in compliance with the requirements of paragraph (a) of 
this provision, the offeror shall submit a comprehensive plan for 
compliance with the EVMS guidelines.
    (1) The plan shall--
    (i) Describe the EVMS the offeror intends to use in performance of 
the contracts;
    (ii) Distinguish between the offeror's existing management system 
and modifications proposed to meet the guidelines;
    (iii) Describe the management system and its application in terms of 
the EVMS guidelines;

[[Page 603]]

    (iv) Describe the proposed procedures for administration of the 
guidelines, as applied to subcontracts; and
    (v) Provide documentation describing the process and results of any 
third-party or self-evaluation of the system's compliance with the EVMS 
guidelines.
    (2) The offeror shall provide information and assistance as required 
by the contracting officer to support review of the plan.
    (3) The Government will review and approve the offeror's plan for an 
EVMS before contract award.
    (4) The offeror's EVMS plan must provide milestones that indicate 
when the offeror anticipates that the EVMS will be compliant with the 
requirements in paragraph (a) of this provision.
    (c) Offerors shall identify the major subcontractors, or major 
subcontracted effort if major subcontracts have not been selected 
subject to the guidelines. The prime Contractor and the Government shall 
agree to subcontractors selected for application of the EVMS 
requirements.
    (d) The Government will conduct an Integrated Baseline Review (IBR), 
as designed by the agency, prior to contract award. The objective of the 
IBR is for the Government and the Contractor to jointly assess technical 
areas, such as the Contractor's planning, to ensure complete coverage of 
the contract requirements, logical scheduling of the work activities, 
adequate resources, methodologies for earned value (budgeted cost for 
work performed (BCWP)), and identification of inherent risks.

                           (End of provision)



Sec. 1052.234-72  Core Earned Value Management System AUG 2011

    As prescribed in DTAR 1034.203, insert this clause in major 
investment solicitations and awards with DME that require a contractor 
to use an earned value management system (EVMS).
    (a) The Contractor shall use an earned value management system 
(EVMS) that has either been determined by the Cognizant Federal Agency 
(CFA) to be compliant with the guidelines in ANSI/EIA Standard-748 
(current version at the time of award) or documentation that supports 
its validation that the EVMS used to manage this contract meets the 
following ANSI/EIA-748 criteria:
    (1) (ANSI 1) Define the authorized work elements for the 
program. A work breakdown structure (WBS), tailored for effective 
internal management control, is commonly used in this process.
    (2) (ANSI 2) Identify the program organizational structure 
including the major subcontractors responsible for accomplishing the 
authorized work, and define the organizational elements in which work 
will be planned and controlled.
    (3) (ANSI 3) Provide for the integration of the company's 
planning, scheduling, budgeting, work authorization, and cost 
accumulation processes with each other, and as appropriate, the program 
WBS and the program organizational structure.
    (4) (ANSI 6) Schedule the authorized work in a manner that 
describes the sequence of work and identifies significant task 
interdependencies required to meet the needs of the program.
    (5) (ANSI 7) Identify physical products, milestones, 
technical performance goals, or other indicators that will be used to 
measure progress.
    (6) (ANSI 8) Establish and maintain a time-phased budget 
baseline, at the control account level, against which program 
performance can be measured. Initial budgets established for performance 
measurement will be based on either internal management goals or the 
external customer negotiated target cost including estimates for 
authorized but vaguely defined work. Budget for far-term efforts may be 
held in higher-level accounts until an appropriate time for allocation 
at the control account level. On government contracts, if an over-target 
baseline is used for performance measurement reporting purposes, prior 
notification must be provided to the customer.
    (7) (ANSI 16) Record direct costs in a manner consistent 
with the budgets in a formal system controlled by the general books of 
account.
    (8) (ANSI 22) At least on a monthly basis, generate the 
following information at the control account and other levels as 
necessary for management control using actual cost data from, or 
reconcilable with, the accounting system:
    (i) Comparison of the amount of planned budget and the amount of 
budget earned for work accomplished. This comparison provides the 
schedule variance.
    (ii) Comparison of the amount of the budget earned and the actual 
(applied where appropriate) direct costs for the same work. This 
comparison provides the cost variance.
    (9) (ANSI 27) Develop revised estimates of cost at 
completion based on performance to date, commitment values for material, 
and estimates of future conditions. Compare this information with the 
performance measurement baseline to identify variances at completion 
important to management and any applicable customer reporting 
requirements, including statements of funding requirements.
    (10) (ANSI 28) Incorporate authorized changes in a timely 
manner, recording the effects of such changes in budgets and schedules. 
In the directed effort prior to negotiation of a change, base such 
revisions on the

[[Page 604]]

amount estimated and budgeted to the program organizations. If the 
Contractor's current EVMS has not been determined compliant at the time 
of award, see paragraph (b) of this clause. The Contractor shall submit 
reports in accordance with the requirements of this contract.
    (b) If, at the time of award, the Contractor's EVMS has not been 
determined by the CFA as complying with EVMS guidelines or the 
Contractor does not have an existing cost/schedule control system that 
is compliant with the guidelines in paragraph (a), the Contractor 
shall--
    (1) Apply the current system to the contract; and
    (2) Take necessary actions to meet the milestones in the 
Contractor's EVMS plan approved by the contracting officer.
    (c) The Government will conduct an Integrated Baseline Review (IBR). 
If a pre-award IBR has not been conducted, a post award IBR shall be 
conducted as early as practicable after contract award.
    (d) The contracting officer may require an IBR upon the--
    (1) Exercise of significant options; or
    (2) Incorporation of major modifications.
    (e) Unless a waiver is granted by the CFA, Contractor-proposed EVMS 
changes require approval of the CFA prior to implementation. The CFA 
will advise the Contractor of the acceptability of such changes within 
30 calendar days after receipt of the notice of proposed changes from 
the Contractor. If the advance approval requirements are waived by the 
CFA, the Contractor shall disclose EVMS changes to the CFA at least 14 
calendar days prior to the effective date of implementation.
    (f) The Contractor shall provide access to all pertinent records and 
data requested by the contracting officer or a duly authorized 
representative as necessary to permit Government surveillance to ensure 
that the EVMS conforms, and continues to conform, with the performance 
criteria referenced in paragraph (a) of this clause.
    (g) The Contractor shall require the subcontractors specified below 
to comply with the requirements of this clause: [Insert list of 
applicable subcontractors].

                             (End of clause)

[[Page 605]]



                CHAPTER 12--DEPARTMENT OF TRANSPORTATION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1201            Federal Acquisition Regulations System......         607
1202            Definitions of words and terms..............         611
1203            Improper business practices and personal 
                    conflicts of interest...................         612
1204            Administrative matters......................         613
                   SUBCHAPTER B--ACQUISITION PLANNING
1205            Publicizing contract actions................         615
1206            Competition requirements....................         615
1207            Acquisition planning........................         615
1208-1210        [Reserved]

1211            Describing agency needs.....................         616
1212            [Reserved]

          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1213            Simplified acquisition procedures...........         617
1214            Sealed bidding..............................         617
1215            Contracting by negotiation..................         618
1216            Types of contracts..........................         619
1217            Special contracting methods.................         620
1218            [Reserved]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1219            Small business programs.....................         622
1220-1221        [Reserved]

1222            Application of labor laws to Government 
                    acquisitions............................         623
1223            Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         624
1224            Protection of privacy and freedom of 
                    information.............................         624

[[Page 606]]

1225-1226        [Reserved]

             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1227            Patents, data and copyrights................         626
1228            Bonds and insurance.........................         627
1229-1230        [Reserved]

1231            Contract cost principles and procedures.....         629
1232            Contract financing..........................         629
1233            Protests, disputes and appeals..............         631
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1234            [Reserved]

1235            Research and development contracting........         633
1236            Construction and architect-engineer 
                    contracts...............................         633
1237            Service contracting.........................         633
1238            [Reserved]

1239            Acquisition of information technology.......         634
1240-1241        [Reserved]

                    SUBCHAPTER G--CONTRACT MANAGEMENT
1242            Contract administration and audit services..         635
1243-1244        [Reserved]

1245            Government property.........................         635
1246            Quality assurance...........................         636
1247            Transportation..............................         638
1248-1251        [Reserved]

                     SUBCHAPTER H--CLAUSES AND FORMS
1252            Solicitation provisions and contract clauses         639
1253            Forms.......................................         661

[[Page 607]]

                          SUBCHAPTER A_GENERAL

            PART 1201_FEDERAL ACQUISITION REGULATIONS SYSTEM

               Subpart 1201.1_Purpose, Authority, Issuance

Sec.

Sec. 1201.101 Purpose.

Sec. 1201.104 Applicability.

Sec. 1201.105 Issuance.

Sec. 1201.105-1 Publication and code arrangement.

Sec. 1201.105-2 Arrangement of regulations.

Sec. 1201.105-3 Copies.

Sec. 1201.106 OMB Approval under the Paperwork Reduction Act.

                      Subpart 1201.2_Administration


Sec. 1201.201 Maintenance of the FAR.

Sec. 1201.201-1 The two councils.

              Subpart 1201.3_Agency Acquisition Regulations


Sec. 1201.301 Policy.

Sec. 1201.301-70 Amendment of (TAR) 48 CFR Chapter 12.

Sec. 1201.301-71 Effective date.

Sec. 1201.301-72 TAC or TN numbering.

Sec. 1201.304 Agency control and compliance procedures.

            Subpart 1201.4	70_Deviations From the FAR and TAR


Sec. 1201.403 Individual deviations.

Sec. 1201.404 Class deviations.

      Subpart 1201.6_Career Development, Contracting Authority and 
                            Responsibilities


Sec. 1201.602-3 Ratification of unauthorized commitments.

Sec. 1201.603-1 General.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

               Subpart 1201.1_Purpose, Authority, Issuance



Sec. 1201.101  Purpose.

    The Department of Transportation (DOT) Acquisition Regulation (TAR) 
establishes uniform acquisition policies and procedures, which implement 
and supplement the Federal Acquisition Regulation (FAR).



Sec. 1201.104  Applicability.

    (a) Statute, the (FAR) Title 48, Code of Federal Regulations (CFR) 
chapter 1, and (TAR) 48 CFR chapter 12 apply to all acquisitions within 
the Department unless otherwise excluded by statute, the (FAR) 48 CFR 
chapter 1, or (TAR) 48 CFR chapter 12.
    (b) The following order of precedence applies to resolve any 
question of applicability concerning an acquisition regulation or a 
procedure found within (TAR) 48 CFR chapter 12 or the Transportation 
Acquisition Manual (TAM):
    (1) Statute;
    (2) (FAR) 48 CFR chapter 1 or other applicable regulation;
    (3) (TAR) 48 CFR chapter 12;
    (4) DOT Orders; and
    (5) TAM.
    (c) The Maritime Administration may depart from the requirements of 
the (FAR) 48 CFR chapter 1 and (TAR) 48 CFR chapter 12 as authorized by 
40 U.S.C. 113(e)(15) but shall adhere to those regulations to the 
maximum extent practicable. Exceptions from the requirements of the 
(FAR) 48 CFR chapter 1 and/or (TAR) 48 CFR chapter 12 shall be 
documented according to Maritime Administration procedures or in each 
contract file, as appropriate.
    (d) The (FAR) 48 CFR chapter 1, (TAR) 48 CFR chapter 12 and TAM do 
not apply to the Federal Aviation Administration as provided by the 
Department of Transportation and Related Agencies Appropriations Act, 
1996, Public Law 104-50, unless otherwise directed by the Office of the 
Secretary of Transportation.



Sec. 1201.105  Issuance.



Sec. 1201.105-1  Publication and code arrangement.

    (a) The (TAR) 48 CFR chapter 12 is published in:
    (1) The Federal Register; and
    (2) Cumulative form in the CFR.
    (b) The TAR is issued as chapter 12 of Title 48 of the CFR.

[[Page 608]]



Sec. 1201.105-2  Arrangement of regulations.

    (a) General. The (TAR) 48 CFR chapter 12, which encompasses both 
Department and Operating Administration (OA)-specific guidance (see 
(TAR) 48 CFR 1201.3), conforms with the arrangement and numbering system 
prescribed by (FAR) 48 CFR 1.104. Guidance that is OA-specific contains 
the OA's acronym directly after the heading. The following acronyms 
apply:

FHWA--Federal Highway Administration
FMCSA--Federal Motor Carrier Safety Administration
FRA--Federal Railroad Administration
FTA--Federal Transit Administration
MARAD--Maritime Administration
NHTSA--National Highway Traffic Safety Administration
OST--Office of the Secretary
PHMSA--Pipeline and Hazardous Materials Safety Administration
RITA--Research and Innovative Technology Administration
SLSDC--Saint Lawrence Seaway Development Corporation

    (b) Numbering--(1) Departmentwide guidance. (i) The numbering 
illustrations at (FAR) 48 CFR 1.105-2 apply to (TAR) 48 CFR chapter 12.
    (ii) Coverage within (TAR) 48 CFR chapter 12 is identified by the 
prefix ``12'' followed by the complete (FAR) 48 CFR chapter 1 cite. For 
example, (TAR) 48 CFR 1201.201-1(b)).
    (iii) Coverage in (TAR) 48 CFR chapter 12 that supplements (FAR) 48 
CFR chapter 1 will use part, subpart, section and subsection numbers 
ending in ``70'' through ``89'' (e.g., (TAR) 48 CFR 1201.301-70). A 
series of numbers beginning with ``70'' is used for provisions and 
clauses.
    (iv) Coverage in (TAR) 48 CFR chapter 12, other than that identified 
with a ``70'' or higher number, that implements the (FAR) 48 CFR chapter 
1 uses the identical number sequence and caption of the (FAR) 48 CFR 
chapter 1 segment being implemented, which may be to the paragraph 
level. Paragraph numbers and letters are not always shown sequentially, 
but may be shown by the specific FAR paragraph implemented. For example, 
(TAR) 48 CFR 1201.201-1 contains only paragraph (b) because only this 
paragraph, correlated with FAR, implements (TAR) 48 CFR chapter 12.
    (2) Operating Administration-unique guidance. Supplementary material 
for which there is no counterpart in (FAR) 48 CFR chapter 1 or (TAR) 48 
CFR chapter 12 shall be identified using chapter, part, subpart, 
section, or subsection numbers of ``90'' and higher.
    (c) References and citations. (TAR) 48 CFR chapter 12 may be 
referred to as the Department of Transportation Acquisition Regulation 
or the TAR. Cross reference to the FAR in (TAR) 48 CFR chapter 12 will 
be cited by ``FAR'' followed by the FAR numbered cite, and cross 
reference to the TAM in (TAR) 48 CFR chapter 12 will be cited by ``TAM'' 
followed by the TAM numbered cite. References to specific cites within 
(TAR) 48 CFR chapter 12 will be referenced by the numbered cite only.

[70 FR 6507, Feb. 7, 2005, as amended at 70 FR 76417, Dec. 27, 2005]



Sec. 1201.105-3  Copies.

    (a) Copies of the TAR in Federal Register, and CFR form may be 
purchased from the Superintendent of Documents, Government Printing 
Office, Washington, DC 20402. The electronic version of the Federal 
Register may be found at http://www.nara.gov and the CFR at http://
www.gpoaccess.gov.
    (b) The (TAR) 48 CFR chapter 12 and Transportation Acquisition 
Circulars (TACs) are available on the Internet at http://www.dot.gov/
ost/m60.



Sec. 1201.106  OMB Approval Under the Paperwork Reduction Act.

    (a) Data collection by regulation. The information collection and 
recordkeeping requirements contained in (TAR) 48 CFR chapter 12 have 
been approved by the Office of Management and Budget (OMB).
    (b) Data collection under proposed contracts. Under the regulations 
implementing the requirements of the Paperwork Reduction Act (5 CFR 
1320), OMB must approve, prior to obligation of funds, proposed 
contracts which require the collection of information from ten or more 
non-Federal persons or entities. Solicitations requiring this level of 
information collection may be

[[Page 609]]

released prior to OMB approval provided that:
    (1) A statement is included in the solicitation to the effect that 
the contract will not be awarded until OMB approval of the information 
collection requirements of the proposed contract has been obtained; and
    (2) Enough time is permitted to allow receipt of OMB approval prior 
to contract award.

                      Subpart 1201.2_Administration



Sec. 1201.201  Maintenance of the FAR.



Sec. 1201.201-1  The two councils.

    (b) The SPE is responsible for providing a DOT representative to the 
Civilian Agency Acquisition Council (CAAC).

              Subpart 1201.3_Agency Acquisition Regulations



Sec. 1201.301  Policy.

    (a)(1) Acquisition regulations--(i) Departmentwide acquisition 
regulations. The Department of Transportation's (DOT's) Senior 
Procurement Executive (SPE) is the individual having authority to issue 
or authorize the issuance of agency regulations that implement or 
supplement the FAR and to include agency-unique policies, etc. that 
govern the contracting process. This authority was re-delegated from the 
Assistant Secretary for Administration.
    (ii) Operating Administration (OA) acquisition regulations. OA 
acquisition regulations, and any changes thereto, shall be reviewed and 
approved by the Senior Procurement Executive (SPE) for insertion into 
the (TAR) 48 CFR chapter 12 as a TAR supplemental regulation before the 
SPE submits the proposed coverage for publication in the Federal 
Register in accordance with (FAR) 48 CFR 1.501. OA regulations may be 
more restrictive or require higher approval levels than those permitted 
by (TAR) 48 CFR chapter 12 unless otherwise specified.
    (2) Acquisition procedures. The SPE is the individual who issues or 
authorizes the issuance of internal agency guidance at any 
organizational level. DOT internal operating procedures are contained in 
the Transportation Acquisition Manual (TAM). OA procedures necessary to 
implement or supplement the (FAR) 48 CFR chapter 1, (TAR) 48 CFR chapter 
12, or TAM may be issued by the Head of the Contracting Agency (HCA), 
who may delegate this authority to any organizational level deemed 
appropriate. OA procedures may be more restrictive or require higher 
approval levels than those permitted by the TAM unless otherwise 
specified.
    (b) The authority of the agency head under (FAR) 48 CFR 1.301(b) to 
establish procedures to ensure that agency acquisition regulations are 
published for comment in the Federal Register in conformance with the 
procedures in FAR Subpart 1.5 is delegated to the Office of the General 
Counsel, Assistant General Counsel for Regulation and Enforcement (C-
50).



Sec. 1201.301-70  Amendment of (TAR) 48 CFR chapter 12.

    (a) Changes to the regulation may be the result of recommendations 
from internal DOT personnel, other Government agencies, or the public. 
Changes shall be submitted in the following format to the Office of the 
Senior Procurement Executive (OSPE), 400 7th Street, SW., Washington, DC 
20590:
    (1) Problem: Succinctly state the problems created by current (TAR) 
48 CFR chapter 12 language and describe the factual or legal reasons 
necessitating regulatory change.
    (2) Recommendation: Identify the recommended change by using the 
current language (if applicable), and crossing out the deleted words 
with a horizontal line. Insert proposed language in brackets. If the 
change is extensive, deleted language may be displayed by forming a box 
with diagonal lines connecting the corners.
    (3) Discussion: Explain why the change is necessary and how it will 
solve the problem. Address any cost or administrative impact on 
Government activities, offerors, and contractors. Provide any other 
information and documents such as statutes, legal decisions, 
regulations, reports, etc., that may be helpful.
    (4) Point of contact: Provide a point of contact who can answer 
questions regarding the recommendation.

[[Page 610]]

    (b) The (TAR) 48 CFR chapter 12 is maintained by the SPE through the 
TAR/TAM change process. This process consists of input from various DOT 
elements including representatives from DOT OAs specifically designated 
to formulate Departmental acquisition policies and procedures.
    (1) Transportation Acquisition Circular (TAC). TACs (see (TAR) 48 
CFR 1201.301-72) will be used to amend (TAR) 48 CFR chapter 12.
    (2) TAR Notice (TN). (i) TNs shall be issued when interim guidance 
is necessary and as often as may be necessary, under any of the 
following circumstances:
    (A) To quickly promulgate selected material in a general or 
narrative manner, in advance of a TAC issuance;
    (B) To disseminate other acquisition related information; or
    (C) To issue guidance which may be effective for a period of 1 year 
or less.
    (ii) Each TN will expire by a specific date.



Sec. 1201.301-71  Effective date.

    Unless otherwise stated, the following applies--
    (a) Statements in TACs or TNs to the effect that the material 
therein is ``effective upon receipt,'' ``upon a specified date,'' or 
that changes set forth in the document are ``to be used upon receipt,'' 
mean that any new or revised provisions, clauses, procedures, or forms 
must be included in solicitations, contracts or modifications issued 
thereafter; and
    (b) Unless expressly directed by statute or regulation, 
solicitations in process or completed negotiations when the TAC or TN is 
received, new information such as forms and clauses, need not be 
included if the chief of the contracting office determines that it would 
not be in the best interest of the Government to include the new 
information.



Sec. 1201.301-72  TAC or TN numbering.

    TACs and TNs will be numbered consecutively on a fiscal year basis 
beginning with number ``01'' prefixed by the last two digits of the 
fiscal year (e.g., TNs 04-01 and 04-02 indicate the first two TNs issued 
in fiscal year 2004).



Sec. 1201.304  Agency control and compliance procedures.

    (a) DOT shall control the proliferation of acquisition regulations 
and any revisions thereto (except as noted in paragraph (b) of this 
section) by using an internal (TAR) 48 CFR chapter 12 change process 
that involves input from many DOT elements including OA representatives 
on the Procurement Management Council. The OA member shall represent 
their OA's viewpoint along with Departmentwide considerations in 
reaching a decision on (TAR) 48 CFR chapter 12 changes.
    (b) OA-unique regulations will not be processed through the TAR/TAM 
change process, but shall be reviewed by OA legal counsel and submitted 
to the OSPE for review and approval. (See (TAR) 48 CFR 1252.101 for 
additional instructions pertaining to provisions and clauses.)

            Subpart 1201.4	70_Deviations From the FAR and TAR



Sec. 1201.403  Individual deviations.

    The Head of the Contracting Activity, or designee with a rank that 
is no lower than that of Senior Executive Service (SES) official or that 
of a Flag Officer, may authorize individual deviations (unless (FAR) 48 
CFR 1.405(e) applies). However, see TAM 1201.403.



Sec. 1201.404  Class deviations.

    The SPE may grant in writing class deviations from the (FAR) 48 CFR 
chapter 1 and (TAR) 48 CFR chapter 12, unless (FAR) 48 CFR 1.405(e) 
applies.

      Subpart 1201.6_Career Development, Contracting Authority and 
                            Responsibilities



Sec. 1201.602-3  Ratification of unauthorized commitments.

    (b) Policy. DOT policy requires that all procurement decisions shall 
be made only by Government officials having authority to carry out such 
acquisitions. Procurement decisions made by other than authorized 
personnel are contrary to Departmental policy and may be considered 
matters of serious misconduct on the part of the employee making an 
unauthorized

[[Page 611]]

commitment. Disciplinary action against an employee who makes an 
unauthorized commitment may be considered.



Sec. 1201.603-1  General.

    Each DOT OA is responsible for appointing its contracting officers.

                PART 1202_DEFINITIONS OF WORDS AND TERMS

                       Subpart 1202.1_Definitions

Sec.

Sec. 1202.1 Definitions.

                     Subpart 1202.70_Internet Links


Sec. 1202.7000 General.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                       Subpart 1202.1_Definitions



Sec. 1202.1  Definitions.

    Agency, Federal agency or Executive agency means the Department of 
Transportation.
    Chief Information Officer means the Director of the Office of the 
Chief Information Officer (CIO) (S-80).
    Chief of the Contracting Office (COCO) means the individual(s) 
responsible for managing the contracting office(s) within an Operating 
Administration.
    Contracting activity includes all the contracting offices within an 
Operating Administration and is the same as the term ``procuring 
activity.''
    Contracting officer (CO) means an individual authorized by virtue of 
their position or by appointment to perform the functions assigned by 
the Federal Acquisition Regulation (FAR), the Transportation Acquisition 
Regulation (TAR) and Transportation Acquisition Manual (TAM).
    Department of Transportation means all of the Operating 
Administrations included within the Department of Transportation (DOT).
    Head of the agency or agency head for Departmental procurement means 
the Deputy Secretary except for acquisition actions that, by the terms 
of a statute or delegation, must be done specifically by the Secretary 
of Transportation.
    Head of the Contracting Activity (HCA) means the individual 
responsible for managing the contracting offices within an Operating 
Administration who is a member of the Senior Executive Service or a flag 
officer and is the same as the term ``Head of the Procuring Activity.''
    Head of the Operating Administration (HOA) means the individual 
appointed by the President to manage the operating administration.
    Operating Administration (OA) means the following components of DOT:
    (1) Federal Aviation Administration (FAA); (FAA is exempt from FAR, 
TAR and TAM pursuant to the Department of Transportation and Related 
Agencies Appropriations Act, 1996, Public Law 104-50;
    (2) Federal Highway Administration (FHWA);
    (3) Federal Motor Carrier Safety Administration (FMCSA);
    (4) Federal Railroad Administration (FRA);
    (5) Federal Transit Administration (FTA);
    (6) Maritime Administration (MARAD);
    (7) National Highway Traffic Safety Administration (NHTSA);
    (8) Office of the Secretary of Transportation (OST);
    (9) Pipeline and Hazardous Materials Safety Administration (PHMSA).
    (10) Research and Innovative Technology Administration (RITA).
    (11) Saint Lawrence Seaway Development Corporation (SLSDC).
    Senior Procurement Executive (SPE) means the Director of the Office 
of the Senior Procurement Executive (M-60).
    Small Business Specialist (SBS) means the individual appointed by 
each HCA to assist the Director, Office of the Small and Disadvantaged 
Business Utilization in carrying out the purpose of the Small Business 
Act.

[70 FR 6507, Feb. 7, 2005, as amended at 70 FR 76417, Dec. 27, 2005]

                     Subpart 1202.70_Internet Links



Sec. 1202.7000  General.

    Most documents cited throughout (TAR) 48 CFR chapter 12, can be 
found

[[Page 612]]

on the internet. (TAR) 48 CFR chapter 12 will cite the corresponding 
internet address.

PART 1203_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 1203.1_Safeguards

Sec.

Sec. 1203.101-3 Agency regulations.

      Subpart 1203.2_Contractor Gratuities to Government Personnel


Sec. 1203.203 Reporting suspected violations of the Gratuities clause.

Sec. 1203.204 Treatment of violations.

        Subpart 1203.3_Reports of Suspected Antitrust Violations


Sec. 1203.301 General.

Sec. 1203.303 Reporting suspected antitrust violations.

                     Subpart 1203.4_Contingent Fees


Sec. 1203.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

            Subpart 1203.5_Other Improper Business Practices


Sec. 1203.502 Subcontractor kickbacks.

Sec. 1203.502-2 Subcontractor kickbacks.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                        Subpart 1203.1_Safeguards



Sec. 1203.101-3  Agency regulations.

    (b) 5 CFR part 2635, Standards of Ethical Conduct for Employees of 
the Executive Branch, takes precedence over the DOT regulation at 49 CFR 
part 99.

      Subpart 1203.2_Contractor Gratuities to Government Personnel



Sec. 1203.203  Reporting suspected violations of the Gratuities clause.

    (a) Suspected violations of the Gratuities clause shall be reported 
to the contracting officer responsible for the acquisition (or the COCO 
if the contracting officer is suspected of the violation). The 
contracting officer (or COCO) shall obtain from the person reporting the 
violation, and any witnesses to the violation, the following 
information:
    (1) The date, time, and place of the suspected violation;
    (2) The name and title (if known) of the individual(s) involved in 
the violation; and
    (3) The details of the violation (e.g., the gratuity offered or 
intended) to obtain a contract or favorable treatment under a contract.
    (b) The person reporting the violation and witnesses (if any) should 
be requested to sign and date the information certifying that the 
information furnished is true and correct.
    (c) The COCO shall report suspected violations to the Office of the 
Inspector General (OIG) (J-1), 400 7th Street, SW., Washington, DC 
20590, with a copy to General Counsel (C-1) and the OA's Chief Counsel.



Sec. 1203.204  Treatment of violations.

    (a) The HCA is authorized to determine whether a Gratuities clause 
violation has occurred. If the HCA has been personally and substantially 
involved in the procurement, Government legal counsel advice should be 
sought to determine if a substitute for the HCA should be designated.
    (b) The COCO shall ensure that the contractor is afforded the 
hearing procedures required by (FAR) 48 CFR 3.204(b). Government legal 
counsel should be consulted regarding the appropriateness of the hearing 
procedures.
    (c) If the HCA determines that the alleged gratuities violation 
occurred during the ``conduct of an agency procurement'' the COCO shall 
consult with Government legal counsel regarding the approach for 
appropriate processing of either the Procurement Integrity Act violation 
and/or the Gratuities violation.

[[Page 613]]

        Subpart 1203.3_Reports of Suspected Antitrust Violations



Sec. 1203.301  General.

    (b) The same procedures contained in (TAR) 48 CFR 1203.203 shall 
also be followed for suspected antitrust violations, except reports of 
suspected antitrust violations shall be coordinated with legal counsel 
for referral to the Department of Justice, if deemed appropriate.



Sec. 1203.303  Reporting suspected antitrust violations.

    (b) The same procedures contained in (TAR) 48 CFR 1203.203 shall 
also be followed for suspected antitrust violations, except reports of 
suspected antitrust violations shall be coordinated with legal counsel 
for referral to the Department of Justice, if deemed appropriate.

                     Subpart 1203.4_Contingent Fees



Sec. 1203.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

    (a) and (b)(4) The same procedures contained in (TAR) 48 CFR 
1203.203 shall also be followed for misrepresentation or violations of 
the covenant against contingent fees, except reports of 
misrepresentation or violations of the covenant against contingent fees 
shall be coordinated with legal counsel for referral to the Department 
of Justice, if deemed appropriate.

            Subpart 1203.5_Other Improper Business Practices



Sec. 1203.502  Subcontractor kickbacks.



Sec. 1203.502-2  Subcontractor kickbacks.

    (g) The same procedures contained in (TAR) 48 CFR 1203.203 shall 
also be followed for subcontractor kickbacks.

                    PART 1204_ADMINISTRATIVE MATTERS

                    Subpart 1204.1_Contract Execution

Sec.

Sec. 1204.103 Contract clause.

                Subpart 1204.8_Government Contract Files


Sec. 1204.804-5 Procedures for closing out contract.

Sec. 1204.804-570 Supporting closeout documents.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                    Subpart 1204.1_Contract Execution



Sec. 1204.103  Contract clause.

    The contracting officer shall insert the clause at (FAR) 48 CFR 
52.204-1, Approval of Contract, filled in as appropriate, in 
solicitations and contracts when approval to award the resulting 
contract must be obtained from an official at a level above the 
contracting officer.

                Subpart 1204.8_Government Contract Files



Sec. 1204.804-5  Procedures for closing out contract files.



Sec. 1204.804-570  Supporting closeout documents.

    (a) When applicable (see paragraphs (a)(1) through (4) of this 
section) and prior to contract closeout, the contracting officer shall 
obtain the listed DOT and Department of Defense (DOD) forms from the 
contractor to facilitate contract closeout.
    (1) Form DOT F 4220.4, Contractor's Release, see (FAR) 48 CFR 
52.216-7;
    (2) Form DOT F 4220.45, Contractor's Assignment of Refunds, Rebates, 
Credits and Other Amounts, (FAR) 48 CFR 52.216-7;
    (3) Form DOT F 4220.46, Cumulative Claim and Reconciliation 
Statement, see (FAR) 48 CFR 4.804-5(a)(13); and
    (4) DD Form 882, Report of Inventions and Subcontracts http://
www.dior.whs.mil/forms/DD0882.PDF, see (FAR) 48 CFR 52.227-14.
    (b) The forms listed in paragraph (a) of this section are used 
primarily for the closeout of cost-reimbursement, time-and-materials, 
and labor-hour contracts. However, the forms may

[[Page 614]]

also be used for closeout of other contract types or when necessary to 
protect the Government's interest.

[[Page 615]]

                    SUBCHAPTER B_ACQUISITION PLANNING

                 PART 1205_PUBLICIZING CONTRACT ACTIONS

               Subpart 1205.1_Dissemination of Information

Sec.

Sec. 1205.101 Methods of disseminating information.

                  Subpart 1205.4_Release of Information


Sec. 1205.402 General public.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

               Subpart 1205.1_Dissemination Of Information



Sec. 1205.101  Methods of disseminating information.

    (b) The DOT Office of Small and Disadvantaged Business Utilization 
(S-40), 400 7th Street, SW., Washington, DC 20590 publishes a 
Procurement Forecast of planned procurements each fiscal year on their 
Web site at: http://osdbuweb.dot.gov/business/procurement/forecast.html.

                  Subpart 1205.4_Release of Information



Sec. 1205.402  General public.

    (a) Upon request, DOT will furnish the general public with the 
following information on proposed contracts and contract awards:
    (1) Prior to the opening of sealed bids or the closing date for 
receipt of proposals, the names of firms invited to submit sealed bids 
or proposals;
    (2) Prior to the opening of sealed bids or the closing date for 
receipt of proposals, the names of firms which attended pre-proposal or 
pre-bid conferences, if any;
    (3) After the opening of sealed bids, names of firms which submitted 
bids; and
    (4) After contract award, the names of firms which submitted 
proposals.
    (b) Requests for other specific information shall be processed in 
accordance with the DOT Freedom of Information Act rules and regulations 
((TAR) 48 CFR 1224.203).

                   PART 1206_COMPETITION REQUIREMENTS

                  Subpart 1206.5_Competition Advocates

Sec.

Sec. 1206.501 Requirement.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                  Subpart 1206.5_Competition Advocates



Sec. 1206.501  Requirement.

    The DOT Senior Competition Advocate (SCA) is the Deputy Assistant 
Secretary for Administration.

                     PART 1207_ACQUISITION PLANNING

         Subpart 1207.3_Contractor Versus Government Performance

Sec.

Sec. 1207.302 General.

Sec. 1207.305 Solicitation provisions and contract clause.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

         Subpart 1207.3_Contractor Versus Government Performance



Sec. 1207.302  General.

    DOT follows OMB Circular A-76, Performance of Commercial Activities, 
and (FAR) 48 CFR 7.3 when cost comparisons between Government and 
contractor performance are conducted.



Sec. 1207.305  Solicitation provisions and contract clause.

    The contracting officer may insert clause (TAR) 48 CFR 1252.237-73, 
Key

[[Page 616]]

Personnel, in solicitations and contracts when the acquisition is 
conducted pursuant to OMB Circular A-76 and meets the clause 
prescription requirements at (TAR) 48 CFR 1237.110(b).

                    PART 1211_DESCRIBING AGENCY NEEDS

     Subpart 1211.1_Selecting and Developing Requirements Documents

Sec.

Sec. 1211.101 Order of precedence for requirements documents.

       Subpart 1211.2_Using and Maintaining Requirements Documents


Sec. 1211.204-70 Solicitation provisions and contract clauses.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

     Subpart 1211.1_Selecting and Developing Requirements Documents



Sec. 1211.101  Order of precedence for requirements documents.

    Safeguards to ensure safety, security (including sensitive 
information and information technology security) and environmental 
protection shall be included, as applicable, in requirements documents.

       Subpart 1211.2_Using and Maintaining Requirements Documents



Sec. 1211.204-70  Solicitation provisions and contract clauses.

    The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.211-70, Index for Specifications, when an index or table of 
contents may be furnished with the specification.

[[Page 617]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 1213_SIMPLIFIED ACQUISITION PROCEDURES

 Subpart 1213.71_Department of Transportation Procedures for Acquiring 
                            Training Services

Sec.

Sec. 1213.7100 Applicability.

Sec. 1213.7101 Solicitation provision and contract clause.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

 Subpart 1213.71_Department of Transportation Procedures for Acquiring 
                            Training Services



Sec. 1213.7100  Applicability.

    (a) DOT policy at (TAR) 48 CFR 1237.7000 also applies to the 
Standard Form (SF) 182, Request, Authorization, Agreement and 
Certification of Training, which may be used to acquire training 
services; however, the policy does not apply to training services 
acquired by the Government purchase/credit card. The Government 
purchase/credit card can only be used to acquire training services 
valued at $2,500 or less.
    (b) As reflected in (TAR) 48 CFR 1237.7002, this policy does not 
apply to training attended by DOT employees which is scheduled and 
conducted by Government sources of supply, educational institutions, or 
private entities where DOT does not control or sponsor the training. 
Examples of when the policy does and does not apply include:
    (1) When SF 182s are issued for three DOT employees to attend a one 
week course at a university or other private entity, the policy does not 
apply. DOT does not control this course because the university or 
private entity has a contract in place with the training provider and 
DOT is placing an order under an existing contract; and
    (2) When DOT awards a contract to a university or other private 
entity to provide training for DOT and/or other Government personnel, 
the policy applies. DOT controls this course; therefore, no soliciting 
or advertising of private non-Government training while conducting the 
contracted-for training is permitted.



Sec. 1213.7101  Solicitation provision and contract clause.

    (a) Contracting officers shall insert the provision at (TAR) 48 CFR 
1252.237-71, Certification of Data, in all solicitations and requests 
for quotations, and the clause at (TAR) 48 CFR 1252.237-72, Prohibition 
on Advertising, in solicitations, requests for quotations, and all 
contracts (e.g., purchase orders, SF 182s) for training services when 
the content and/or presentation of the training is controlled by DOT. 
(Notice: The Secretary of Transportation has determined that the 
certification required by (TAR) 48 CFR 1252.237-71 shall be retained in 
accordance with Section 4301(b)(1)(B)(i)(II) of the Federal Acquisition 
Reform Act (Public Law 104-106, 41 U.S.C. 425, note) and DOT Memorandum 
dated July 17, 1996.)
    (b) Contracting officers shall incorporate the successful offeror's 
certified data into any resultant contract(s). Certified data may be 
adopted by reference, if the contracting officer determines it contains 
information sufficient to reliably describe the certified data 
submitted. For example, this type of information includes dated material 
such as resumes and company or personnel qualifications.

                        PART 1214_SEALED BIDDING

                    Subpart 1214.3_Submission of Bids

Sec.

Sec. 1214.302 Bid submission.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

[[Page 618]]

                    Subpart 1214.3_Submission of Bids



Sec. 1214.302  Bid submission.

    (b)(1) Contracting officers may permit telegraphic bids to be 
communicated by means of a telephone call from the telegraph office to 
the designated office provided that procedures and controls have been 
established by the COCO for receiving and safeguarding these incoming 
bids.

                  PART 1215_CONTRACTING BY NEGOTIATION

  Subpart 1215.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 1215.207 Handling proposals and information.

                     Subpart 1215.4_Contract Pricing


Sec. 1215.404 Proposal analysis.

Sec. 1215.404-470 Payment of profit or fee.

                  Subpart 1215.6_Unsolicited Proposals


Sec. 1215.602 Policy.

Sec. 1215.603 General.

Sec. 1215.604 Agency points of contact.

Sec. 1215.606 Agency procedures.

Sec. 1215.606-1 Receipt and initial review.

Sec. 1215.606-2 Evaluation.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

  Subpart 1215.2_Solicitation and Receipt of Proposals and Information



Sec. 1215.207  Handling proposals and information.

    (a) Offeror's proposals and information received in response to a 
request for information shall be marked as required by TAM 1203.104-4, 
as applicable.
    (b) Proposals may be released outside the Government whenever it is 
the only means of receiving the most competent technical and/or 
management evaluation available.

                     Subpart 1215.4_Contract Pricing



Sec. 1215.404  Proposal analysis.



Sec. 1215.404-470  Payment of profit or fee.

    The contracting officer shall not pay profit or fee on undefinitized 
contracts or undefinitized contract modifications. Any profit or fee 
earned shall be paid after the contract or modification is definitized.

                  Subpart 1215.6_Unsolicited Proposals



Sec. 1215.602  Policy.

    DOT's policy encourages submission of new and innovative ideas that 
will support DOT's mission. Through the various Operating 
Administrations (OAs), DOT is responsible for transportation safety 
improvements, international transportation agreements and the continuity 
of transportation services in the public interest.



Sec. 1215.603  General.

    DOT will accept unsolicited proposals from any entity for review and 
consideration. However, DOT will not pay any costs associated with the 
preparation of these proposals. Proposals that do not meet the 
definition and applicable content and marking requirements of (FAR) 48 
CFR 15.6 will not be considered under any circumstances and will be 
returned to the submitter.



Sec. 1215.604  Agency points of contact.

    (a) The DOT does not have a centralized location to receive 
unsolicited proposals. The type of effort submitted in the proposal 
determines which DOT OA should receive and evaluate the proposal.
    (b) Unsolicited proposals should be submitted to the responsible OA 
contracting office for appropriate handling. Specific information 
concerning the mission of each DOT OA is available on the worldwide web 
at http://www.dot.gov. Prospective contractors are urged to contact 
these contracting/procurement offices prior to submitting a proposal to 
ensure that the unsolicited proposal reaches the correct

[[Page 619]]

contracting office for action. This action will reduce unnecessary 
paperwork and wasted time for both the Government and the prospective 
contractors.



Sec. 1215.606  Agency procedures.

    (a) The Chief of the Contracting Office is responsible for 
establishing procedures for controlling unsolicited proposals received 
in the contracting office. Within ten working days after receipt of an 
unsolicited proposal, the contracting office shall review the proposal 
and determine whether the proposal meets the content and marking 
requirements of (FAR) 48 CFR 15.6. If the proposal does not meet these 
requirements, it shall be returned to the submitter giving the reasons 
for noncompliance.
    (b) The OA contracting office is the designated point of contact for 
receipt and handling of unsolicited proposals. Persons within DOT who 
receive unsolicited proposals, such as technical personnel, shall 
forward the document to their responsible contracting office.



Sec. 1215.606-1  Receipt and initial review.

    (a) The agency contact point must make an initial review 
determination within seven calendar days after receiving a proposal.
    (b) If the proposal meets the requirements at (FAR) 48 CFR 15.606-
1(a), the agency contact point must acknowledge receipt within three 
calendar days after making the initial review determination and advise 
the offeror of the general timeframe for completing the evaluation.
    (c) If the proposal does not meet the requirements of (FAR) 48 CFR 
15.606-1(a), the agency contact point must return the proposal within 
three calendar days after making the determination. The agency point of 
contact must inform the offeror, in writing, of the reasons for 
returning the proposal.



Sec. 1215.606-2  Evaluation.

    (a) Comprehensive evaluations should be completed within sixty 
calendar days after making the initial review determination. If 
additional time is needed, then the agency contact point shall advise 
the offeror accordingly and provide a new evaluation completion date. 
The evaluating office must neither reproduce nor disseminate the 
proposal to other offices without the consent of the contracting office 
from which the proposal was received for evaluation. If additional 
information from the offeror is required by the evaluating office, the 
evaluator must convey this request to the responsible contracting 
office. The evaluator shall not directly contact the proposal 
originator.
    (b) If the evaluator recommends acceptance of the proposal, the 
responsible contracting officer shall ensure compliance with all of the 
requirements of (FAR) 48 CFR 15.607.

                      PART 1216_TYPES OF CONTRACTS

                  Subpart 1216.2_Fixed-Price Contracts

Sec.

Sec. 1216.203 Fixed-price contracts with economic price adjustment.

Sec. 1216.203-4 Contract clauses.

Sec. 1216.203-470 Solicitation provision.

                   Subpart 1216.4_Incentive Contracts


Sec. 1216.406-70 DOT contract clauses.

              Subpart 1216.5_Indefinite-Delivery Contracts


Sec. 1216.505 Ordering.

   Subpart 1216.6_Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 1216.603 Letter contracts.

Sec. 1216.603-4 Contract clauses.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                  Subpart 1216.2_Fixed-Price Contracts



Sec. 1216.203  Fixed-price contracts with economic price adjustment.



Sec. 1216.203-4  Contract clauses.



Sec. 1216.203-470  Solicitation provision.

    The contracting officer shall insert the provision at (TAR) 48 CFR 
1252.216-70, Evaluation of Offers Subject to an Economic Price 
Adjustment Clause, in solicitations containing an economic price 
adjustment clause.

[[Page 620]]

                   Subpart 1216.4_Incentive Contracts



Sec. 1216.406-70  DOT contract clauses.

    (a) As authorized by (FAR) 48 CFR 16-406(e), the contracting officer 
shall insert the clause at (TAR) 48 CFR 1252.216-71, Determination of 
Award Fee, in all cost-plus-award-fee solicitations and contracts.
    (b) The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.216-72, Performance Evaluation Plan, in all cost-plus-award-fee 
solicitations and contracts.
    (c) The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.216-73, Distribution of Award Fee, in all cost-plus-award-fee 
solicitations and contracts.

              Subpart 1216.5_Indefinite-Delivery Contracts



Sec. 1216.505  Ordering.

    (b)(5) Unless otherwise designated by the Head of the Operating 
Administration, the Competition Advocate for the Operating 
Administration (OA) is designated as the OA Task and Delivery Order 
Ombudsman. If any corrective action is needed after reviewing complaints 
from contractors on task and delivery order contracts, the OA Ombudsman 
shall provide a written determination of such action to the contracting 
officer. Issues that cannot be resolved within the OA, shall be 
forwarded to the DOT Task and Delivery Order Ombudsman for review and 
resolution. The DOT Task and Delivery Order Ombudsman is located in the 
Office of the Senior Procurement Executive.

   Subpart 1216.6_Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 1216.603  Letter contracts.



Sec. 1216.603-4  Contract clauses.

    The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.216-74, Settlement of Letter Contract, in all definitized letter 
contracts.

                  PART 1217_SPECIAL CONTRACTING METHODS

 Subpart 1217.70_Fixed Price Contracts for Vessel Repair, Alteration or 
                               Conversion

Sec.

Sec. 1217.7000 Definition.

Sec. 1217.7001 Clauses.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

 Subpart 1217.70_Fixed Price Contracts for Vessel Repair, Alteration or 
                               Conversion



Sec. 1217.7000  Definition.

    Lay Days means the time allowed to the master of a vessel for 
loading and unloading the same.



Sec. 1217.7001  Clauses.

    (a) The clause at (TAR) 48 CFR 1252.217-70, Guarantee, shall be used 
where general guarantee provisions are deemed desirable by the 
contracting officer.
    (1) When inspection and acceptance tests will afford full protection 
to the Government in ascertaining conformance to specifications and the 
absence of defects and deficiencies, no guarantee clause for that 
purpose shall be included in the contract.
    (2) The customary guarantee period, to be inserted in the first 
sentence of the clause at (TAR) 48 CFR 1252.217-70, Guarantee, is 60 
days. In certain instances, it may be advisable for the contracting 
officer to include a contract clause for a guarantee period longer than 
60 days. These instances are as follows:
    (i) If, as result of a full inquiry, the contracting officer 
determines that there will be no increased costs as a result of a longer 
guarantee period, the contracting officer may substitute guarantee 
longer than the usual 60 days; or
    (ii) When the contracting officer's inquiry discloses that increased 
costs will result or are expected to result from a longer guarantee 
period, the

[[Page 621]]

contracting officer shall submit a letter to the Chief of the 
Contracting Office, requesting approval for use of guarantee period in 
excess of 60 days. The letter must contain sufficient facts to justify 
the use of a longer guarantee period. Upon approval, the contracting 
officer may insert a longer period in the first sentence of the clause 
at (TAR) 48 CFR 1252.217-70, Guarantee.
    (b) The following clauses are required:
    (1) (TAR) 48 CFR 1252.217-71 through (TAR) 48 CFR 1252.217-74; and,
    (2) (TAR) 48 CFR 1252.217-76 through (TAR) 48 CFR 1252.217-80.
    (c) (TAR) 48 CFR 1252.217-75 may be included in sealed bid fixed-
price solicitations and contracts for vessel repair, alteration, or 
conversion which are to be performed within the United States, its 
possessions, or Puerto Rico.
    (d) Unless inappropriate, the clauses set forth in (TAR) 48 CFR 
1252.217-71 through (TAR) 48 CFR 1252.217-74 and (TAR) 48 CFR 1252.217-
76 through (TAR) 48 CFR 1252.217-80 shall be included.
    (e) (TAR) 48 CFR 1252.217-75 may be included in negotiated 
solicitations and contracts to be performed outside the United States.

[70 FR 6507, Feb. 7, 2005, as amended at 70 FR 76417, Dec. 27, 2005]

[[Page 622]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 1219_SMALL BUSINESS PROGRAMS

                         Subpart 1219.2_Policies

Sec.

Sec. 1219.201 General policy.

 Subpart 1219.8_Contracting with the Small Business Administration (The 
                              8(a) Program)


Sec. 1219.800 General.

Sec. 1219.811-3 Contract clauses.

Sec. 1219.812 Contract administration.

  Subpart 1219.10_Small Business Competitiveness Demonstration Program


Sec. 1219.1003 Purpose.

Sec. 1219.1005 Applicability.


Sec. Appendix A to Part 1219--Targeted Industry Categories

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                         Subpart 1219.2_Policies



Sec. 1219.201  General policy.

    (c) The Director, Office of Small and Disadvantaged Business 
Utilization (S-40), is responsible for carrying out the functions and 
duties in sections 8, 15, and 31 of the Small Business Act, as amended. 
(15 U.S.C. 637, 644, and 657.)

 Subpart 1219.8_Contracting with the Small Business Administration (The 
                              8(a) Program)



Sec. 1219.800  General.

    (f) The Small Business Administration (SBA) and DOT have entered 
into a Partnership Agreement (PA) authorizing DOT contracting officers 
to enter into direct 8(a) contracts on behalf of SBA.



Sec. 1219.811-3  Contract clauses.

    (d)(3) When an acquisition is processed pursuant to the DOT/SBA 
Partnership Agreement, the contracting officer shall use the clause at 
(FAR) 48 CFR 52.219-18, Notification of Competition Limited to Eligible 
8(a) Concerns, with its Alternate III, (TAR) 48 CFR 1252.219-72.
    (f) The contracting officer shall insert the clause at 1252.219-71, 
Section 8(a) Direct Awards, in all solicitations and contracts processed 
under the PA. In accordance with the CAAC Letter 98-3, the following FAR 
clauses shall not be used when processing a Direct 8(a) award under the 
MOU: (FAR) 48 CFR 52.219-11, Special 8(a) Contract Conditions, (FAR) 48 
CFR 52.219-12, Special 8(a) Subcontract Conditions, and (FAR) 48 CFR 
52.219-17, Section 8(a) Award.



Sec. 1219.812  Contract administration.

    (d) All direct 8(a) awards made pursuant to the PA are subject to 15 
U.S.C. 637(a) (21). These contracts contain the clause at (TAR) 48 CFR 
1252.219-71, Section 8(a) Direct Award, which requires the 8(a) 
contractor to notify the SBA and the contracting officer when ownership 
of the firm is being transferred.

  Subpart 1219.10_Small Business Competitiveness Demonstration Program



Sec. 1219.1003  Purpose.

    (b) Contracting officers shall use the targeted industry categories 
listed at (TAR) 48 CFR 1219.1005(b) to expand small business 
participation in the small business competitive demonstration program.



Sec. 1219.1005  Applicability.

    (b) Targeted industry categories. DOT's targeted industry categories 
are shown in appendix A to this part.



                      Sec. Appendix A to Part 1219

------------------------------------------------------------------------
                                             FPDS products and service
      Targeted industry categories*                     code
------------------------------------------------------------------------
(1) Engineering Development..............  AT94
(2) Systems Engineering Services (Only)..  R414
(3) Radio/TV Communication Equipment       5820
 (except airborne).

[[Page 623]]

 
(4) Maintenance, Repair, and Rebuilding    J028/J010
 of engines, turbines, components and
 weapons equipment.
(5) ADP Central Processing Units:
  Analog.................................  7020
  Digital................................  7021
  Hybrid.................................  7022
(6) ADP Support Equipment................  7035
(7) ADP Components.......................  7050
(8) ADP Development Services and ADP       D302/D305
 Teleprocessing and Timesharing Services.
(9) Gas Turbines and Jet Engines,          2840
 Aircraft; and Components.
(10) Radar Equipment (except airborne)     5840/AT31
 and Navigation and Navigational Aids
 (basic research).
------------------------------------------------------------------------
* The industry categories were derived from Federal Procurement Data
  System Product and Service Codes Manual.

     PART 1222_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                   Subpart 1222.1_Basic Labor Policies

Sec.

Sec. 1222.101 Labor relations.

Sec. 1222.101-70 Admittance of union representatives to DOT 
          installations.

Sec. 1222.101-71 Contract clauses.

   Subpart 1222.4_Labor Standards for Contracts Involving Construction


Sec. 1222.406 Administration and enforcement.

Sec. 1222.406-9 Withholding from or suspension of contract payments.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                   Subpart 1222.1_Basic Labor Policies



Sec. 1222.101  Labor relations.



Sec. 1222.101-70  Admittance of union representatives to DOT 
          installations.

    (a) It is DOT policy to admit labor union representatives of 
contractor employees to DOT installations to visit work sites and 
transact labor union business with contractors, their employees, or 
union stewards pursuant to existing union collective bargaining 
agreements. Their presence shall not interfere with the contractor's 
work progress under a DOT contract nor violate the safety or security 
regulations that may be applicable to persons visiting the installation. 
The union representatives will not be permitted to conduct meetings, 
collect union dues, or make speeches concerning union matters while 
visiting a work site.
    (b) Whenever a union representative is denied entry to a work site, 
the person denying entry shall make a written report to the DOT labor 
coordinator, the Office of the General Counsel, Office of Environmental 
Law, Civil Rights and General Law (C-10), within the Office of the 
Secretary of Transportation or corresponding OA labor advisor, within 
two working days after the request for entry is denied. The report shall 
include the reason(s) for the denial, the name of the representative 
denied entry, the union affiliation and number, and the name and title 
of the person that denied the entry.



Sec. 1222.101-71  Contract clauses.

    (a) When applicable, the contracting officer may insert the clause 
at (TAR) 48 CFR 1252.222-70, Strikes or Picketing Affecting Timely 
Completion of the Contract Work, in solicitations and contracts.
    (b) When applicable the contracting officer may insert the clause at 
(TAR) 48 CFR 1252.222-71, Strikes or Picketing Affecting Access to a DOT 
Facility, in solicitations and contracts.

   Subpart 1222.4_Labor Standards for Contracts Involving Construction



Sec. 1222.406  Administration and enforcement.



Sec. 1222.406-9  Withholding from or suspension of contract payments.

    (c) Disposition of contract payments withheld or suspended--(1) 
Forwarding wage underpayments to the Secretary of the Treasury. The 
contracting officer shall ensure that a completed Form DOT F 4220.7, 
Employee Claim for Wage Restitution, is obtained from each employee 
claiming restitution under the

[[Page 624]]

contract. The Comptroller General (Claims Division) must receive this 
form with a completed Standard Form (SF) 1093, Schedule of Withholding 
Under the Davis-Bacon Act or the Contract Work Hours and Safety 
Standards Act, before payment can be made to the employee.

  PART 1223_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

  Subpart 1223.3_Hazardous Material Identification and Material Safety 
                                  Data

Sec.

Sec. 1223.303 Contract clause.

     Subpart 1223.70_Safety Requirements for Selected DOT Contracts


Sec. 1223.7000 Contract clauses.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

  Subpart 1223.3_Hazardous Material Identification and Material Safety 
                                  Data



Sec. 1223.303  Contract clause.

    The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.223-70, Removal or Disposal of Hazardous Substances--Applicable 
Licenses and Permits, in solicitations and contracts involving the 
removal or disposal of hazardous waste material.

     Subpart 1223.70_Safety Requirements for Selected DOT Contracts



Sec. 1223.7000  Contract clauses.

    (a) Where all or part of a contract will be performed on Government-
owned or leased property, the contracting officer shall insert the 
clause at (TAR) 48 CFR 1252.223-71, Accident and Fire Reporting.
    (b) For all solicitations and contracts under which human test 
subjects will be utilized, the contracting officer shall insert the 
clause at (TAR) 48 CFR 1252.223-72, Protection of Human Subjects. Upon 
written request, copies of the applicable National Highway Traffic 
Safety Administration (NHTSA) policies and procedures may be obtained 
from NHTSA's Associate Administrator for Administration (NPO-200), 400 
7th Street, SW., Washington DC 20590.
    (c) Pursuant to Executive Order 13043, Increasing Seat Belt Use in 
the United States, the contracting officer shall insert the clause at 
(TAR) 48 CFR 1252.223-73, Seat Belt Use Policies and Programs in all 
solicitations and contracts, exceeding the simplified acquisition 
threshold.

       PART 1224_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 1224.1_Protection of Individual Privacy

Sec.

Sec. 1224.102-70 General.

Sec. 1224.103 Procedures.

                Subpart 1224.2_Freedom of Information Act


Sec. 1224.203 Policy.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

             Subpart 1224.1_Protection of Individual Privacy



Sec. 1224.102-70  General.

    (a) Systems of records to which the Privacy Act applies shall not be 
released except by the Government regardless of whether the Government 
or a contractor acting on behalf of the Government is maintaining the 
records. Examples of systems of records are:
    (1) Personnel, payroll and background records personal to any 
officer or employee of DOT, or other person, including his or her 
residential address;
    (2) Medical histories and medical records concerning individuals, 
including applications for licenses; and

[[Page 625]]

    (3) Any other detailed record containing information identifiable 
with a particular person.
    (b) Examples of systems of records to which the Privacy Act does not 
apply are:
    (1) Records that are maintained by a contractor on individuals 
employed by the contractor in the process of providing goods and 
services to the Federal government; and
    (2) Records generated on contract students pursuant to their 
attendance (e.g., admission forms, grade reports) when contracting with 
an educational institution. These records must be similar to those 
maintained on other students, must not reveal their identities, and must 
not be commingled with records of other students.



Sec. 1224.103  Procedures.

    DOT rules and regulations implementing the Privacy Act of 1974 are 
located at 49 CFR part 10.

                Subpart 1224.2_Freedom of Information Act



Sec. 1224.203  Policy.

    DOT rules and regulations implementing the Freedom of Information 
Act (FOIA) and the names and addresses of the OA FOIA offices are 
located in 49 CFR part 7. Specific contract award information shall be 
requested from the FOIA office of the OA making the contract award.

[[Page 626]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 1227_PATENTS, DATA, AND COPYRIGHTS

         Subpart 1227.3_Patent Rights Under Government Contracts

Sec.

Sec. 1227.304 Procedures.

Sec. 1227.304-5 Appeals.

Sec. 1227.305 Administration of patent rights clauses.

Sec. 1227.305-4 Conveyance of invention rights acquired by the 
          Government.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

         Subpart 1227.3_Patent Rights Under Government Contracts



Sec. 1227.304  Procedures.



Sec. 1227.304-5  Appeals.

    (b) Agency actions listed at (FAR) 48 CFR 27.304-5(a)(1) and (a)(3) 
through (a)(5) may be appealed to the Head of the Contracting Activity 
(HCA). Actions under this section shall be coordinated with the legal 
counsel of the responsible office.
    (1) Actions must be appealed within 30 days of receipt of the 
written statement required by (FAR) 48 CFR 27.304-5(a). The contractor 
must present all pertinent arguments in the appeal along with 
documentary evidence, if any.
    (2) The HCA shall issue a determination within 45 days from the date 
the contractor's appeal is received.
    (c) Appeals of decisions rendered under (FAR) 48 CFR 27.304-5(a)(2) 
are subject to the following requirements:
    (1) Actions must be appealed within 30 days of receipt of the 
written statement required by (FAR) 48 CFR 27.304-5(a). The contractor 
must present all pertinent arguments in the appeal along with 
documentary evidence, if any.
    (2) The HCA may hold an informal hearing if deemed appropriate or at 
the request of the contractor. The informal hearing shall be held after 
all fact-finding is completed.
    (i) If a hearing is held, there shall be a transcribed record of the 
same. A copy of the transcript shall be available to the contractor at 
cost.
    (ii) Transcription of the hearing may be waived by mutual agreement 
of the parties.
    (3) The HCA shall designate an impartial fact-finding official. The 
official conducting the fact-finding shall prepare findings of fact and 
transmit them to the HCA promptly after the conclusion of the fact-
finding proceeding along with a recommended determination.
    (i) A copy of the findings of fact shall be sent to the contractor 
(assignee or exclusive licensee) by registered or certified mail. The 
contractor (assignee or exclusive licensee) and agency representatives 
will be given 30 days to submit written arguments to the HCA; and, upon 
request by the contractor oral arguments will be held before the HCA as 
part of an informal hearing. The HCA will make the final determination 
as to whether the initial agency action was appropriate under the 
relevant laws and procedures (See 1227.304-5(c)(4)).
    (ii) Any portion of the informal hearing that involves testimony or 
evidence shall be closed to the public. Agencies shall not disclose any 
such information obtained in the course of the appeal to persons outside 
the government except when such release is authorized by the contractor 
(assignee or licensee).
    (4) The HCA's final determination shall be based on the findings of 
facts, together with any other information and written or oral arguments 
submitted by the contractor (assignee or exclusive licensee) and agency 
representatives, and any other information in the administrative record. 
The HCA may reject only those facts that have been found clearly 
erroneous and must explicitly state the rejection and the basis for the 
contrary finding. The HCA shall provide the contractor (assignee or 
exclusive licensee) a written determination by certified or registered 
mail no later than 90 days after fact-finding is completed or no later

[[Page 627]]

than 90 days after oral arguments, whichever is later.



Sec. 1227.305  Administration of patent rights clauses.



Sec. 1227.305-4  Conveyance of invention rights acquired by the 
          Government.

    Solicitations and contracts that include a patent rights clause must 
provide the contractor the means to report inventions made in the course 
of contract performance and at contract completion. This requirement may 
be fulfilled by requiring the contractor to submit a DD Form 882, Report 
of Inventions and Subcontracts.

                      PART 1228_BONDS AND INSURANCE

          Subpart 1228.1_Bonds and Other Financial Protections

Sec.

Sec. 1228.106 Administration.

Sec. 1228.106-1 Bonds and bond-related forms.

Sec. 1228.106-6 Furnishing of information.

Sec. 1228.106-70 Execution and administration of bonds.

Sec. 1228.106-71 Performance and payment bonds for certain contracts.

Sec. 1228.106-7100 Waiver.

Sec. 1228.106-7101 Exception.

Sec. 1228.106-470 Contract clause.

                        Subpart 1228.3_Insurance


Sec. 1228.306 Insurance under fixed-price contracts.

Sec. 1228.306-70 Contracts for lease of aircraft.

Sec. 1228.307-1 Group insurance plans.

Sec. 1228.311-1 Contract clause.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

          Subpart 1228.1_Bonds and Other Financial Protections



Sec. 1228.106  Administration.



Sec. 1228.106-1  Bonds and bond-related forms.

    (b) Standard Form (SF) 25, Performance Bond, prescribed at (FAR) 48 
CFR 28.106-1(b), shall provide coverage for taxes imposed by the United 
States which are collected, deducted, or withheld from wages paid by the 
contractor. Forms other than the SF 25 (e.g., a commercial form) shall 
not be used by contractors when a performance bond is required.



Sec. 1228.106-6  Furnishing of information.

    (b) When furnishing surety information, the inquirer should also be 
informed that:
    (1) Persons believing that they have legal remedies under the Miller 
Act (40 U.S.C. 3131-3134) are cautioned to consult their own legal 
advisor regarding the proper steps to take to obtain remedies.
    (2) On construction contracts exceeding $2,000, if the contracting 
officer is informed (through routine compliance checking, a complaint, 
or a request for information) that a laborer, mechanic, apprentice, 
trainee, watchman, or guard employed by the contractor or subcontractor 
at any tier may have been paid wages less than those required by the 
applicable labor standards provisions of the contract, the contracting 
officer shall promptly initiate an investigation in accordance with 
(FAR) 48 CFR subpart 22.4, irrespective of the employee's rights under 
the Miller Act. When an employee's request for information is involved, 
the contracting officer shall inform the inquirer that such 
investigation will be made. To insure proper payment to such employees, 
this investigation is required pursuant to the provisions of the Davis-
Bacon Act, Contract Work Hours and Safety Standards Act (40 U.S.C. 
3141), and Copeland (Anti-Kickback) Act (41 U.S.C. 51-58).
    (c) When furnishing a copy of a payment bond and contract in 
accordance with (FAR) 48 CFR 28.106-6(b), the requirement for a copy of 
the contract may be satisfied by furnishing a machine-duplicate copy of 
the contractor's first pages which show the contract number and date, 
the contractor's name and signature, the contracting officer's 
signature, and the description of the contract work. The contracting 
officer furnishing the copies shall place the statement ``Certified to 
be a true and correct copy'' followed by his/her signature, title and 
name of the OA. The fee for furnishing the requested certified copies 
shall be determined in accordance with the DOT

[[Page 628]]

Freedom of Information Act regulation, 49 CFR part 7, (TAR) 48 CFR 
1224.203).



Sec. 1228.106-70  Execution and administration of bonds.

    (a) The contracting officer shall notify the surety within 30 days, 
of the contractor's failure to perform in accordance with the terms of 
the contract.
    (b) When a partnership is a principal on a bond, the names of all 
the members of the firm shall be listed in the bond following the name 
of the firm, and the phrase ``a partnership composed of.'' If a 
principal is a corporation, the state of incorporation must also appear 
on the bond.
    (c) Performance or payment bond(s), other than an annual bond, shall 
not predate the contract to which it pertains.
    (d) Bonds may be filed with the original contract to which they 
apply, or all bonds can be separately maintained and reviewed quarterly 
for validity. If separately maintained, each contract file shall cross-
reference the applicable bonds.



Sec. 1228.106-71  Performance and payment bonds for certain contracts.



Sec. 1228.106-7100  Waiver.

    (a) Pursuant to the authority vested in the Secretary of 
Transportation by the Miller Act, the requirements of 40 U.S.C. 3131 et 
seq. are waived, to the extent authorized in 40 U.S.C. 3134(b), with 
respect to contracts for the construction, alteration, or repair of 
vessels when the contract is made under sections 1535 and 1536 of Title 
31, the Merchant Marine Act 1936 (46 App. U.S.C. 1101 et seq.), or the 
Merchant Ship Sales Act of 1946 (50 App. U.S.C. 1735 et seq.), 
regardless of the terms of the contracts as to payment or title.
    (b) The Miller Act's requirement that certain contracts have payment 
bonds in place in order to protect the public, including the Government, 
material, men and laborers is not generally necessary with respect to 
the classes of contracts described under (TAR) 48 CFR 1228.106-7100(a). 
Inasmuch as the Government would directly or indirectly bear the burden 
of premiums for performance and payment bonds obtained in connection 
with such contracts, a substantial savings can be made by waiving the 
requirement that they be obtained. However, unusual circumstances may 
arise in which either payment or performance bonds, or both, will be 
advantageous in connection with certain such contracts.



Sec. 1228.106-7101  Exception.

    A performance and payment bond for the contracts described under 
(TAR) 48 CFR 1228.106-7100(a) may be advantageous in view of unusual 
circumstances arising in connection with such contracts. Requests for 
the authority to include the requirement for either a performance or 
payment bond, or both in the contracts described under (TAR) 48 CFR 
1228.106-7100(a) shall be submitted by the contracting officer to the 
HCA, before a solicitation is issued.



Sec. 1228.106-470  Contract clause.

    The contracting officer must insert the clause at (TAR) 48 CFR 
1252.228-73, Notification of Miller Act Payment Bond Protection, in 
solicitations and contracts when payment bonds are required.

                        Subpart 1228.3_Insurance



Sec. 1228.306  Insurance under fixed-price contracts.



Sec. 1228.306-70  Contracts for lease of aircraft.

    (a) The contracting officer shall insert the clauses at (TAR) 48 CFR 
1252.228-70 through 1252.228-72, unless otherwise indicated by the 
specific instructions for their use, in any contract for the lease of 
aircraft (including aircraft used in out-service flight training).
    (b) The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.228-70, Loss of or Damage to Leased Aircraft, in any contract for 
the lease of aircraft, except in the following circumstances:
    (1) When the hourly rental rate does not exceed $250 and the total 
rental cost for any single transaction is not in excess of $2,500:

[[Page 629]]

    (2) When the cost of hull insurance does not exceed 10 percent of 
the contract rate; or
    (3) When the lessor's insurer does not grant a credit for uninsured 
hours, thereby preventing the lessor from granting the same to the 
Government.
    (c) The contracting officer must insert the clause at (TAR) 48 CFR 
1252.228-71, Fair Market Value of Aircraft, when fair market value of 
the aircraft can be determined.
    (d) 49 U.S.C. provides that an aircraft lessor under a lease of 30 
days or more is not liable for injury or death of persons, or damage or 
loss of property unless the aircraft is in the actual possession or 
control of the lessor and the damage occurs because of the aircraft 
engine, propeller or the flight of, or an object falling from the 
aircraft, engine or propeller.

[70 FR 6507, Feb. 7, 2005, as amended at 70 FR 76418, Dec. 27, 2005]



Sec. 1228.307-1  Group insurance plans.

    (a) Prior approval requirements. The contracting officer shall 
instruct the contractor on a contract-by-contract basis on proposed 
purchases of group insurance plans. Legal advice should be sought where 
necessary on the advantages to the Government.



Sec. 1228.311-1  Contract clause.

    The contracting officer shall insert the clause at (FAR) 48 CFR 
52.228-7, Insurance Liability to Third Persons, as prescribed in FAR 
28.311-1 unless it is waived by an official one level above the 
contracting officer.

            PART 1231_CONTRACT COST PRINCIPLES AND PROCEDURES

         Subpart 1231.2_Contracts With Commercial Organizations

Sec.

Sec. 1231.205 Selected costs.

Sec. 1231.205-32 Precontract costs.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

         Subpart 1231.2_Contracts With Commercial Organizations



Sec. 1231.205  Selected costs.



Sec. 1231.205-32  Precontract costs.

    (a) The decision to incur precontract costs is that of the 
contractor. No DOT employee can authorize, demand, or require a 
contractor to incur precontract costs. The contracting officer may 
advise the prospective contractor that any costs incurred before 
contract award are at the contractor's sole risk and that if 
negotiations fail to result in a binding contract, payment of these 
costs may not be made by the Government.
    (b) When the contracting officer determines that incurring 
precontract costs was necessary to meet the proposed contract delivery 
schedule of a cost-reimbursement contract, the clause at (TAR) 48 CFR 
1252.231-70, Date of Incurrence of Costs, may be inserted in the 
resultant contract.

                      PART 1232_CONTRACT FINANCING

                    Subpart 1232.70_Contract Payments

Sec.

Sec. 1232.7002 Invoice and voucher review and approval.


Sec. Appendix A to Part 1232--Instructions for Completing The SF 1034

Sec. Appendix B to Part 1232--Instructions for Completing the SF 1035

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                    Subpart 1232.70_Contract Payments



Sec. 1232.7002  Invoice and voucher review and approval.

    (a) Under fixed-price contracts, the contracting officer shall 
require the contractor to submit an invoice or voucher in order to 
receive payment under the contract. The invoice or voucher may be on a 
form or company letterhead as long as it meets the requirements of the 
Management and Budget (OMB) regulation at 5 CFR part

[[Page 630]]

1315 as implemented by (FAR) 48 CFR Subpart 32.9, and the contract.
    (b) Under other than fixed-price contracts, the contracting office 
shall require the contractor to submit the SF 1034, Public Voucher for 
Purchases and Services Other Than Personal, and the SF 1035, Public 
Voucher for Purchases and Services Other Than Personal (Continuation 
Sheet), to request payments. The forms must be completed as required by 
appendix A to this part, Instructions for Completing the SF 1034, and 
appendix B to this part, Instructions for Completing the SF 1035.



  Sec. Appendix A to Part 1232--Instructions for Completing the SF 1034

   [The SF 1034, Public Voucher for Purchases and Services Other Than
 Personal, shall be completed in accordance with the below instructions.
       The numbered items correspond to the entries on the form.]
------------------------------------------------------------------------
                                            Data to be inserted in the
         Caption on the SF 1034                       block
------------------------------------------------------------------------
1. U.S. Department, Bureau, or           Name and address of the
 establishment and location.              contracting office which
                                          issued the contract.
2. Date voucher prepared...............  Date voucher submitted to the
                                          designated billing office
                                          cited under the contract or
                                          order.
3. Contract No. and date...............  Contract No. and, when
                                          applicable, the Order No. and
                                          date as shown on the award
                                          document.
4. Requisition No. and date............  Leave blank or fill-in in
                                          accordance with the
                                          instructions in the contract.
5. Voucher No..........................  Start with ``1'' and number
                                          consecutively. A separate
                                          series of consecutive numbers
                                          must be used beginning with
                                          ``1'' for each contract number
                                          or order number (when
                                          applicable). Note: Insert the
                                          word ``FINAL'' if this is the
                                          last voucher.
6. Schedule No.; paid by; date invoice   Leave all these blocks blank.
 received; discount terms; payee's
 account No.; shipped from/to; weight;
 government B/L.
7. Payee's name and address............  Name and address of contractor
                                          as it appears on the contract.
                                          If the contract is assigned to
                                          a bank, also show ``CONTRACT
                                          ASSIGNED'' below the name and
                                          address of the contractor.
8. Number and date or order............  Leave blank. (See 3
                                          above.)
9. Date of delivery or service.........  The period for which the
                                          incurred costs are being
                                          claimed (e.g., month and year;
                                          beginning and ending date of
                                          services, etc.).
10. Articles or services...............  Insert the following: ``For
                                          detail, see the total amount
                                          of the claim transferred from
                                          the attached SF 1035, page X
                                          of X.'' One space below this
                                          line, insert the following:
                                          ``COST REIMBURSABLE-
                                          PROVISIONAL PAYMENT.''
11. Quantity; unit price; (cost; per)..  Leave blank.
12. Amount.............................  Insert the total amount claimed
                                          from the last page of the SF
                                          1035.
Payee must NOT use the space below.....  Do NOT write or type below this
                                          line.
------------------------------------------------------------------------



  Sec. Appendix B to Part 1232--Instructions for Completing the SF 1035

    The SF 1035, Public Voucher for Purchases and Services Other Than 
Personal (Continuation Sheet), shall be completed in accordance with the 
below instructions.
    1. Use the same basic instructions for the SF 1035 as used for the 
SF 1034. Ensure that the contract and, if applicable, order number, are 
shown on each continuation sheet. Use as many sheets as necessary to 
show the information required by the contract, contracting officer, or 
responsible audit agency; however, if more than one sheet of SF 1035 is 
used, each sheet shall be in numerical sequence.
    2. The following items are generally entered below the line with 
Number and Date of Order; Date of Delivery or Service; Articles or 
Services; Quantity; Unit Price; and Amount (but do not necessarily tie 
to these captions).
    3. Description of data to be inserted as it applies to the contract 
or order number.
    a. Show, as applicable, the target or estimated costs, target or 
fixed-fee, and total contract value, as adjusted by any modifications to 
the contract or order. The FAR permits the contracting officer to 
withhold a percentage of fixed fee until a reserve is set aside in an 
amount that is considered necessary to protect the Government's 
interest.
    b. Show the following costs and supporting data (as applicable) to 
the contract or order:
    (1) Direct Labor. List each labor category, rate per labor hour, 
hours worked, and extended total labor dollars per labor category.
    (2) Premium Pay/Overtime. List each labor category, rate per labor 
hour, hours worked, and the extended total labor dollars per labor 
category. Note: Advance written authorization must be received from the 
contracting officer to work overtime or to pay premium rates; therefore, 
identify the contracting officer's written authorization to the 
contractor.

[[Page 631]]

    (3) Fringe Benefits. If fringe benefits are included in the overhead 
pool, no entry is required. If the contract allows for a separate fringe 
benefit pool, cite the formula (rate and base) in effect during the time 
the costs were incurred. If the contract allows for billing fringe 
benefits as a direct expense, show the actual fringe benefit costs.
    (4) Materials, Supplies, Equipment. Show those items normally 
treated as direct costs. Expendable items need not be itemized and may 
be grouped into major classifications such as office supplies. However, 
items valued at $5,000 or more must be itemized. See (FAR) 48 CFR part 
45, Government Property, for reporting of property.
    (5) Travel. List the name and title of traveler, place of travel, 
and travel dates. If the travel claim is based on the actual costs 
expended, show the amount for the mode of travel (i.e., airline, private 
auto, taxi, etc.), lodging, meals, and other incidental expenses 
separately, on a daily basis. These actual costs must be supported with 
receipts to substantiate the costs paid. Travel costs for consultants 
must be shown separately and also supported.
    (6) Other Direct Costs. Itemize those costs that cannot be placed in 
categories (1) through (5) above. Categorize these costs to the extent 
possible.
    (7) Total Direct Costs. Cite the sum of categories (1) through (6) 
above.
    (8) Overhead. Cite the rate, base, and extended amount.
    (9) G&A Expense. Cite the rate, base, and extended amount.
    (10) Total Costs. Cite the sum of categories (7) through (9) above.
    (11) Fee. Cite the rate, base, and extended amount.
    (12) Total Cost and Fee Claimed. Enter this amount on the SF 1034.

                           Completion Voucher

    The completion (final) voucher is the last voucher to be submitted 
for incurred, allocable, and allowable costs expended to perform the 
contract or order. This voucher should include all contract reserves, 
allowable cost withholdings, balance of fixed fee, etc. However, the 
amount of the completion voucher when added to the total amount 
previously paid cannot exceed the total amount of the contract.

                PART 1233_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 1233.1_Protests

Sec.

Sec. 1233.103 Protests to the agency.

Sec. 1233.104 Protests to GAO.

                   Subpart 1233.2_Disputes and Appeals


Sec. 1233.211 Contracting officer's decision.

Sec. 1233.214 Alternative dispute resolution (ADR).

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                         Subpart 1233.1_Protests



Sec. 1233.103  Protests to the agency.

    (c) DOT Operating Administrations (OAs) shall consider the use of 
Alternate Dispute Resolution (ADR) in all agency protest actions.



Sec. 1233.104  Protests to GAO.

    The protest process at the Government Accountability Office (GAO) 
may include ADR assistance by GAO. The contracting officer shall, with 
advice of counsel, explore the possibility of using ADR for all GAO 
protests.

                   Subpart 1233.2_Disputes and Appeals



Sec. 1233.211  Contracting officer's decision.

    For DOT contracts, the Board of Contract Appeals (BCA) referenced at 
(FAR) 48 CFR 33.211 is the Department of Transportation Board of 
Contract Appeals (S-20), 400 7th Street, SW., Washington, DC 20590. The 
DOTBCA Rules of Procedure are contained in 48 CFR chapter 63, part 6301.



Sec. 1233.214  Alternative dispute resolution (ADR).

    (c) The Administrative Dispute Resolution Act (ADRA) of 1990, Public 
Law 101-552, as reauthorized by the Administrative Dispute Resolution 
Act (ADRA) of 1996, Public Law 104-320, authorizes and encourages 
agencies to use mediation, conciliation, arbitration, and other 
techniques for the prompt and informal resolution of disputes, either 
before or after appeal, and for other purposes. ADR procedures may be 
used when:
    (1) There is mutual consent by the parties to participate in the ADR 
process (with consent being obtained either before or after an issue in 
controversy has arisen);

[[Page 632]]

    (2) Prior to the submission of a claim; and
    (3) In resolution of a formal claim. Use of ADR shall be coordinated 
with counsel. For all matters filed with the DOTBCA, the DOTBCA 
Alternate Dispute Resolution (ADR) procedures contained in 48 CFR 
Chapter 63, Section 6302.30, ADR Methods (Rule 30), will be distributed 
to the parties, if ADR procedures are used.
    (d) Pursuant to the ADRA, DOT has appointed a Dispute Resolution 
Specialist, who is responsible for the operations of the Center for 
Alternative Dispute Resolution, (C-4). The Center may provide an 
internal DOT neutral agreeable to the parties to conduct any of the 
alternative means of dispute resolution set forth in the ADRA, 5 U.S.C. 
571(3) on a non-reimbursable basis for DOT operating administrations and 
their contracting partners. Alternative means of dispute resolution 
include settlement negotiations, conciliation, facilitation, mediation, 
fact finding, mini-trials, and arbitration, or any combination of these 
methods. The Center may also arrange for an external public or private 
neutral at the parties' expense.

[[Page 633]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                             1234 [RESERVED]

             PART 1235_RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 1235.003 Policy.

                   Subpart 1235.70_Research Misconduct


Sec. 1235.7000 Contract clause.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.



Sec. 1235.003  Policy.

    (b) Cost sharing. DOT cost sharing policies shall be in accordance 
with (FAR) 48 CFR 16.303, (FAR) 48 CFR 42.707(a), and Operating 
Administration (OA) procedures.

                   Subpart 1235.70_Research Misconduct



Sec. 1235.7000  Contract clause.

    The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.235-70, Research Misconduct, in all solicitations and contracts for 
research and development. For further information, see DOT's 
Implementation Guidance for Executive Office of the President, Office of 
Science and Technology Policy, ``Federal Policy on Research 
Misconduct,'' dated February 2002.

         PART 1236_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

                     Subpart 1236.5_Contract Clauses

Sec.

Sec. 1236.570 Special precautions for work at operating airports.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

                     Subpart 1236.5_Contract Clauses



Sec. 1236.570  Special precautions for work at operating airports.

    Where any acquisition will require work at an operating airport, 
insert the clause at (TAR) 48 CFR 1252.236-70, Special Precautions for 
Work at Operating Airports, in solicitations and contracts.

[70 FR 6507, Feb. 7, 2005]

                      PART 1237_SERVICE CONTRACTING

                Subpart 1237.1_Service Contracts_General

Sec.

Sec. 1237.110 Solicitation provisions and contract clauses.

 Subpart 1237.70_Department of Transportation Procedures for Acquiring 
                            Training Services


Sec. 1237.7000 Policy.

Sec. 1237.7001 Certification of data.

Sec. 1237.7002 Applicability.

Sec. 1237.7003 Solicitation provisions and contract clause.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                Subpart 1237.1_Service Contracts_General



Sec. 1237.110  Solicitation provisions and contract clauses.

    (a) Contracting officers shall insert the clause at (TAR) 48 CFR 
1252.237-70, Qualifications of Contractor Employees, in all 
solicitations and contracts for supplies and/or services where 
contractor employees will have access to Government facilities, 
sensitive information, including proprietary data and/or resources.
    (b) The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.237-73, Key Personnel, in solicitations and contracts for services 
when the selection for award is substantially based on the offeror's 
possession of special capabilities regarding personnel.

[[Page 634]]

 Subpart 1237.70_Department of Transportation Procedures for Acquiring 
                            Training Services



Sec. 1237.7000  Policy.

    When training services are provided under contract, DOT policy 
requires that all prospective contractors:
    (a) Certify that the data provided concerning company 
qualifications, background statements, etc., is current, accurate, and 
complete; and
    (b) Agree to not solicit or advertise private, non-Government 
training while conducting a training course.



Sec. 1237.7001  Certification of data.

    Towards fulfilling DOT's policy at (TAR) 48 CFR 1237.7000(a), 
contracting officers shall request information from prospective 
contractors for certification purposes. The type of information 
requested is dependent upon the criticality of the service and/or any 
unique or essential qualification requirements.



Sec. 1237.7002  Applicability.

    The policy at (TAR) 48 CFR 1237.7000 applies to all contracts (as 
defined in FAR 2.101) awarded by DOT for training services when DOT 
controls the content and/or presentation of the course. This policy does 
not apply to courses attended by DOT employees that are offered and 
sponsored by Government sources of supply, educational institutions, or 
private entities where DOT does not control the course content or 
presentation. (See (TAR) 48 CFR 1213.7100 for examples.)



Sec. 1237.7003  Solicitation provisions and contact clause.

    (a) The contracting officer shall insert the provision at (TAR) 48 
CFR 1252.237-71, Certification of Data, in solicitations and the clause 
at (TAR) 48 CFR 1252.237-72, Prohibition on Advertising, in 
solicitations and contracts for training services when the content and/
or presentation of the course is controlled by DOT.
    (b) Contracting officers shall incorporate the successful offeror's 
certified data into any resultant contract(s). Certified data may be 
adopted by reference, if the contracting officer determines it contains 
sufficient descriptive information (i.e., dated material such as 
resumes, company and/or personnel qualifications) to reliably describe 
the certified data submitted.

             PART 1239_ACQUISITION OF INFORMATION TECHNOLOGY

                         Subpart 1239.1_General

Sec.

Sec. 1239.70 Solicitation provision and contract clause.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

                         Subpart 1239.1_General



Sec. 1239.70  Solicitation provision and contract clause.

    The contracting officer shall insert the provision at (TAR) 48 CFR 
1252.239-71, Information Technology Security Plan and Accreditation, and 
the clause at (TAR) 48 CFR 1252.239-70, Security Requirements for 
Unclassified Information Technology Resources, in all solicitations and 
contracts, exceeding the micro-purchase threshold, that include 
information technology services.

[70 FR 6507, Feb. 7, 2005]

[[Page 635]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

          PART 1242_CONTRACT ADMINISTRATION AND AUDIT SERVICES

             Subpart 1242.70_Contract Administration Clauses

Sec.

Sec. 1242.7000 Contract clauses.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

             Subpart 1242.70_Contract Administration Clauses



Sec. 1242.7000  Contract clauses.

    (a) The contracting officer may use the clause at (TAR) 48 CFR 
1252.242-70, Dissemination of Information--Educational Institutions, in 
lieu of the clause at (TAR) 48 CFR 1252.242-72, Dissemination of 
Contract Information, in DOT research contracts with educational 
institutions that require the release or coordination of information.
    (b) The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.242-71, Contractor Testimony, in all solicitations and contracts 
issued by National Highway Traffic Safety Administration (NHTSA). Other 
Operating Administrations (OAs) may use the clause as deemed 
appropriate.
    (c) The contracting officer may insert the clause at (TAR) 48 CFR 
1252.242-72, Dissemination of Contract Information, in all DOT 
contracts, except contracts that require the release or coordination of 
information.
    (d) The contracting officer shall insert the clause at (TAR) 48 CFR 
1252.242-73, Contracting Officer's Technical Representative, in 
solicitations and contracts when it is intended that a representative 
will be assigned to the contract to perform functions of a technical 
nature.

[70 FR 6507, Feb. 7, 2005]

                      PART 1245_GOVERNMENT PROPERTY

 Subpart 1245.5_Management of Government Property in the Possession of 
                               Contractors

Sec.

Sec. 1245.505 Records and reports of Government property.

Sec. 1245.505-14 Reports of Government property.

Sec. 1245.505-70 Contract clauses.

Sec. 1245.508-2 Reporting results of inventories.

Sec. 1245.511 Audit of property control system.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

 Subpart 1245.5_Management of Government Property in the Possession of 
                               Contractors



Sec. 1245.505  Records and reports of Government Property.



Sec. 1245.505-14  Reports of Government property.

    When Government property is furnished to or acquired by the 
contractor to perform the contract, the contract shall require the 
contractor to submit annual reports (see (FAR) 48 CFR 45.505-14) to the 
contracting officer not later than September 15 of each year. The 
contractor's report shall be submitted on Form DOT F 4220.43, Contractor 
Report of Government Property.



Sec. 1245.505-70  Contract clauses.

    Contracting officers shall insert the clause at (TAR) 48 CFR 
1252.245-70 in solicitations and contracts when the contract will 
require Government provided or contractor acquired property.



Sec. 1245.508-2  Reporting results of inventories.

    The inventory report shall also include the following:
    (a) Name and title of the individual(s) that performed the physical 
inventory;
    (b) An itemized, categorized listing of all property capitalized:

[[Page 636]]

    (1) Land and rights therein;
    (2) Other real property;
    (3) Plant equipment;
    (4) Special test equipment; agency peculiar property; and
    (5) Special tooling; and
    (c) An itemized listing of the property lost, damaged, destroyed, or 
stolen, the circumstances surrounding each incident, and the resolution 
of the incident.



Sec. 1245.511  Audit of property control system.

    (a) The property administrator (or other Government official 
authorized by the contracting officer) shall audit the contractor's 
property control system whenever there are indications that the 
contractor's property control system may be deficient. Examples of 
deficiencies are:
    (1) Failure of the contractor to acknowledge receipt of Government-
furnished property;
    (2) Failure of the contractor to submit the annual property reports 
required by (TAR) 48 CFR 1245.505-14;
    (3) Failure of the contractor to reconcile its physical inventory 
with its property control record; or
    (4) Failure of the contractor to submit a Government property 
listing when requested by the property administrator.
    (b) When it is determined that the contractor's property control 
system is deficient, the property administrator, in coordination with 
the contracting officer, shall discuss the deficiencies with the 
contractor. If the contractor does not take action to correct the 
deficiencies, the contracting officer shall provide the contractor with 
a written notice of the deficiencies and the date all deficiencies must 
be corrected.

                       PART 1246_QUALITY ASSURANCE

                         Subpart 1246.1_General

Sec.

Sec. 1246.101 Definitions.

Sec. 1246.101-70 Additional definitions.

                        Subpart 1246.7_Warranties


Sec. 1246.705 Limitations.

Sec. 1246.706 Warranty terms and conditions.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                         Subpart 1246.1_General



Sec. 1246.101  Definitions.



Sec. 1246.101-70  Additional definitions.

    At no additional cost to the Government means at no increase in 
price for firm-fixed-price contracts, at no increase in target or 
ceiling price for fixed price incentive contracts (see (FAR) 48 CFR 
46.707), or at no increase in estimated cost or fee for cost-
reimbursement contracts.
    Defect means any condition or characteristic in any supplies or 
services furnished by the contractor under the contract that is not in 
compliance with the requirements of the contract.
    Major acquisition means an acquisition or project as defined by TAM 
Chapter 1234, Major System Acquisition.
    Performance requirements means the operating capabilities, 
maintenance, and reliability characteristics of a system that are 
determined to be necessary for it to fulfill the requirement for which 
the system is designed.

                        Subpart 1246.7_Warranties



Sec. 1246.705  Limitations.

    (a) The following restrictions are applicable to DOT contracts:
    (1) The contractor shall not be required to honor the warranty on 
any property furnished by the Government except for:
    (i) Defects in installation; and
    (ii) Installation or modification in such a manner that invalidates 
a warranty provided by the manufacturer of the property.
    (2) Any warranty obtained shall specifically exclude coverage of 
damage in time of war (combat damage) or national emergency.
    (3) Contracting officers shall not include in a warranty clause any 
terms that require the contractor to incur liability for loss, damage, 
or injury to third parties.
    (b) [Reserved]

[[Page 637]]



Sec. 1246.706  Warranty terms and conditions.

    (a) When appropriate and cost effective, the contracting officer 
shall comply with the following requirements when developing the 
warranty terms and conditions:
    (1) Identify the affected line item(s) and the applicable 
specification(s);
    (2) Require that the line item's design and manufacture will conform 
to:
    (i) An identified revision of a top-level drawing; and/or
    (ii) An identified specification or revision thereof;
    (3) Require that the line item conform to the specified Government 
performance requirements;
    (4) Require that all line items and components delivered under the 
contract will be free from defects in materials and workmanship;
    (5) State that if the contractor fails to comply with specification 
or there are defects in material and workmanship, the contractor will 
bear the cost of all work necessary to achieve the specified performance 
requirements, including repair and/or replacement of all parts;
    (6) Require the timely replacement/repair of warranted items and 
specify lead times for replacement/repair where possible;
    (7) Identify the specific paragraphs containing Government 
performance requirements that the contractor must meet;
    (8) Ensure that any performance requirements identified as goals or 
objectives beyond specification requirements are excluded from the 
warranty provision;
    (9) Specify what constitutes the start of the warranty period (e.g., 
delivery, acceptance, in-service date), the ending of the warranty 
(e.g., passing a test or demonstration, or operation without failure for 
a specified time period), and circumstances requiring an extension of 
warranty duration (e.g., extending the warranty period as a result of 
mass defect correction during warranty period);
    (10) Identify what transportation costs will be paid by the 
contractor in relation to the warranty coverage;
    (11) In addition to combat damage, identify any conditions which 
will not be covered by the warranty, and
    (12) Identify any limitation on the total dollar amount of the 
contractor's warranty exposure, or agreement to share costs after a 
certain dollar threshold to avoid unnecessary warranty returns.
    (b) In addition to the terms and conditions listed in paragraph (a) 
of this section, the contracting officer shall consider the following 
when a warranty clause is being used for a major acquisition:
    (1) For line items or components which are commercially available, 
obtaining a warranty as is normally provided by the manufacturer or 
supplier, in accordance with (FAR) 48 CFR 46.703(d) and (FAR) 48 CFR 
46.710(b)(2).
    (2) Obtaining a warranty of compliance with the stated requirements 
for line items or components provided in accordance with either design 
and manufacturing or performance requirements as specified in the 
contract or any modification to that contract.
    (3) The warranty provided under paragraph (b)(2) of this section 
shall provide that in the event the line items or any components thereof 
fails to meet the terms of the warranty provided, the contracting 
officer may:
    (i) Require the contractor to promptly take such corrective action 
as the contracting officer determines to be necessary at no additional 
cost to the Government, including repairing or replacing all parts 
necessary to achieve the requirements set forth in the contract;
    (ii) Require the contractor to pay costs reasonably incurred by the 
United States in taking necessary corrective action; or
    (iii) Equitably reduce the contract price.
    (4) Inserting remedies, exclusions, limitations and durations, 
provided these are consistent with the specific requirements of this 
subpart and (FAR) 48 CFR 46.706.
    (5) Excluding from the terms of the warranty certain defects for 
specified supplies (exclusions) and limiting the contractor's liability 
under the terms

[[Page 638]]

of the warranty (limitations), as appropriate, if necessary to derive a 
cost-effective warranty in light of the technical risk, contractor 
financial risk, or other program uncertainties.
    (6) Structuring of a broader and more comprehensive warranty where 
such is advantageous. Likewise, the contracting officer may narrow the 
scope of a warranty when appropriate (e.g., where it would be 
inequitable to require a warranty of all performance requirements 
because a contractor had not designed the system).
    (c) Any contract that contains a warranty clause must contain 
warranty implementation procedures, including warranty notification 
content and procedures, and identify the individuals responsible for 
implementation of warranty provisions. The contract may also permit the 
contractor's participation in investigation of system failures, 
providing that the contractor is reimbursed at established rates for 
fault isolation work, and that the Government receive credit for any 
payments where equipment failure is covered by warranty provisions.

                        PART 1247_TRANSPORTATION

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

        Subpart 1247.5_Ocean Transportation by U.S.-Flag Vessels



Sec. 1247.506  Procedures.

    (a) The Maritime Administration (MARAD) is the enforcing agency of 
the cargo preference statutes. MARAD can assist contractors in locating 
U.S.-flag carriers and determine when such services are not available 
and they can assist contracting officers in evaluating costs, services, 
and other matters regarding ocean transportation.
    (d) If no transportation officer is available, the contracting 
officer shall submit a copy of the rated ``on board'' bill of lading, 
for each shipment, no later than 20 days after the vessel's loading date 
for exports and 30 days for imports as stated in 46 CFR 381.3. All non-
vessel ocean common carrier bills of lading should be accompanied by the 
underlying carrier's ocean bill of lading. The documents shall be sent 
to the Maritime Administration, Office of Cargo Preference, MAR-590, 400 
Seventh Street, SW., Washington, DC 20590. The bill of lading shall 
contain the following information:
    (1) Name of sponsoring Government agency or department;
    (2) Name of vessel;
    (3) Vessel flag of registry;
    (4) Date of loading;
    (5) Port of loading;
    (6) Port of final discharge;
    (7) Commodity description;
    (8) Gross weight in kilos;
    (9) Total ocean freight revenue in U.S. dollars.

[[Page 639]]

                     SUBCHAPTER H_CLAUSES AND FORMS

         PART 1252_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

      Subpart 1252.1_Instructions for Using Provisions and Clauses

Sec.

Sec. 1252.101 Using Part 1252.

              Subpart 1252.2_Text of Provisions and Clauses


Sec. 1252.211-70 Index for specifications.

Sec. 1252.216-70 Evaluation of offers subject to an economic price 
          adjustment clause.

Sec. 1252.216-71 Determination of award fee.

Sec. 1252.216-72 Performance evaluation plan.

Sec. 1252.216-73 Distribution of award fee.

Sec. 1252.216-74 Settlement of letter contract.

Sec. 1252.217-70 Guarantee.

Sec. 1252.217-71 Delivery and shifting of vessel.

Sec. 1252.217-72 Performance.

Sec. 1252.217-73 Inspection and manner of doing work.

Sec. 1252.217-74 Subcontracts.

Sec. 1252.217-75 Lay days.

Sec. 1252.217-76 Liability and insurance.

Sec. 1252.217-77 Title.

Sec. 1252.217-78 Discharge of liens.

Sec. 1252.217-79 Delays.

Sec. 1252.217-80 Department of Labor Safety and Health Regulations for 
          Ship Repairing.

Sec. 1252.219-71 Section 8(a) Direct Awards.

Sec. 1252.219-72 Notification of Competition Limited to Eligible 8(a) 
          Concerns--Alternate III.

Sec. 1252.222-70 Strikes or picketing affecting timely completion of the 
          contract work.

Sec. 1252.222-71 Strikes or picketing affecting access to a DOT 
          facility.

Sec. 1252.223-70 Removal or disposal of hazardous substances--applicable 
          licenses and permits.

Sec. 1252.223-71 Accident and fire reporting.

Sec. 1252.223-72 Protection of human subjects.

Sec. 1252.223-73 Seat belt use policies and programs.

Sec. 1252.228-70 Loss of or damage to leased aircraft.

Sec. 1252.228-71 Fair market value of aircraft

Sec. 1252.228-72 Risk and indemnities.

Sec. 1252.228-73 Notification of Miller Act payment bond protection.

Sec. 1252.231-70 Date of incurrence of costs.

Sec. 1252.235-70 Research misconduct.

Sec. 1252.236-70 Special precautions for work at operating airports.

Sec. 1252.237-70 Qualifications of contractor employees.

Sec. 1252.237-71 Certification of data.

Sec. 1252.237-72 Prohibition on advertising.

Sec. 1252.237-73 Key personnel.

Sec. 1252.239-70 Security requirements for unclassified information 
          technology resources.

Sec. 1252.239-71 Information technology security plan and accreditation.

Sec. 1252.242-70 Dissemination of information--educational institutions.

Sec. 1252.242-71 Contractor testimony.

Sec. 1252.242-72 Dissemination of contract information.

Sec. 1252.242-73 Contracting officer's technical representative.

Sec. 1252.245-70 Government property reports.


Sec. Appendix to Part 1252--TAR Matrix

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

      Subpart 1252.1_Instructions for Using Provisions and Clauses



Sec. 1252.101  Using Part 1252.

    (b) Numbering--(2)(i) Provisions or clauses that supplement the FAR. 
(A) Agency-prescribed provisions and clauses permitted by TAR and used 
on a standard basis (i.e., normally used in two or more solicitations or 
contracts regardless of contract type) shall be prescribed and contained 
in the TAR. Operating Administrations (OAs) desiring to use a provision 
or a clause on a standard basis shall submit a request containing a copy 
of the clause(s), justification for its use, and evidence of legal 
counsel review to the Office of the Senior Procurement Executive in 
accordance with (TAR) 48 CFR 1201.304 for possible inclusion in the TAR.
    (B) Provisions and clauses used on a one-time basis (i.e., non-
standard provisions and clauses) may be approved by the contracting 
officer, unless a higher level is designated by the OA. This authority 
is permitted subject to:
    (1) Evidence of legal counsel review in the contract file;
    (2) Inserting these clauses in the appropriate sections of the 
uniform contract format; and
    (3) Ensuring the provisions and clauses do not deviate from the 
requirements of the FAR and TAR.

[[Page 640]]

              Subpart 1252.2_Text of Provisions and Clauses



Sec. 1252.211-70  Index for specifications.

    As prescribed in (TAR) 48 CFR 1211.204-70, insert the following 
clause:

                   Index for Specifications (APR 2005)

    If an index or table of contents is furnished in connection with 
specifications, such index or table of contents is for convenience only. 
Its accuracy and completeness is not guaranteed, and it is not a part of 
the specification. In case of discrepancy between the index or table of 
contents and the specifications, the specifications shall govern.

                             (End of clause)



Sec. 1252.216-70  Evaluation of offers subject to an economic price 
          adjustment clause.

    As prescribed in (TAR) 48 CFR 1216.203-470, insert the following 
provision:

Evaluation of Offers Subject to an Economic Price Adjustment Clause (OCT 
                                  1994)

    Offers shall be evaluated without an amount for an economic price 
adjustment being added. Offers will be rejected which: (1) Increase the 
ceiling stipulated; (2) limit the downward adjustment; or (3) delete the 
economic price adjustment clause. If the offer stipulates a ceiling 
lower than that included in the solicitation, the lower ceiling will be 
incorporated into any resulting contract.

                           (End of provision)



Sec. 1252.216-71  Determination of award fee.

    As prescribed in (TAR) 48 CFR 1216.406, insert the following clause:

                  Determination of Award Fee (APR 2005)

    (a) The Government shall evaluate contractor performance at the end 
of each specified evaluation period to determine the amount of award. 
The contractor agrees that the amount of award and the award fee 
methodology are unilateral decisions to be made at the sole discretion 
of the Government.
    (b) Contractor performance shall be evaluated according to a 
Performance Evaluation Plan. The contractor shall be periodically 
informed of the quality of its performance and areas in which 
improvements are expected.
    (c) The contractor shall be promptly advised, in writing, of the 
determination and reasons why the award fee was or was not earned. The 
contractor may submit a performance self-evaluation for each evaluation 
period. The amount of award is at the sole discretion of the Government 
but any self-evaluation received within ------ (insert number) days 
after the end of the current evaluation period will be given such 
consideration, as may be deemed appropriate by the Government.
    (d) The amount of award fee which can be awarded in each evaluation 
period is limited to the amounts set forth at (identify location of 
award fee amounts). Award fee which is not earned in an evaluation 
period cannot be reallocated to future evaluation periods.

                             (End of clause)



Sec. 1252.216-72  Performance evaluation plan.

    As prescribed in (TAR) 48 CFR 1216.406(b), insert the following 
clause:

                 Performance Evaluation Plan (OCT 1994)

    (a) A Performance Evaluation Plan shall be unilaterally established 
by the Government based on the criteria stated in the contract and used 
for the determination of award fee. This plan shall include the criteria 
used to evaluate each area and the percentage of award fee (if any) 
available for each area. A copy of the plan shall be provided to the 
contractor ------ (insert number) calendar days prior to the start of 
the first evaluation period.
    (b) The criteria contained within the Performance Evaluation Plan 
may relate to: (1) Technical (including schedule) requirements, if 
appropriate; (2) Management; and (3) Cost.
    (c) The Performance Evaluation Plan may, consistent with the 
contract, be revised unilaterally by the Government at any time during 
the period of performance. Notification of such changes shall be 
provided to the contractor ------ (insert number) calendar days prior to 
the start of the evaluation period to which the change will apply.

                             (End of clause)



Sec. 1252.216-73  Distribution of award fee.

    As prescribed in (TAR) 48 CFR 1216.406(c), insert the following 
clause:

                  Distribution of Award Fee (APR 2005)

    (a) The total amount of award fee available under this contract is 
assigned according to the following evaluation periods and amounts:
Evaluation Period:
Available Award Fee: (insert appropriate information)
    (b) After the contractor has been paid 85 percent of the base fee 
and potential award fee, the Government may withhold further

[[Page 641]]

payment of the base fee and award fee until a reserve is set aside in an 
amount that the Government considers necessary to protect its interest. 
This reserve shall not exceed 15 percent of the total base fee and 
potential award fee or $100,000, whichever is less. Thereafter, base fee 
and award fee payments may continue.
    (c) In the event of contract termination, either in whole or in 
part, the amount of award fee available shall represent a prorata 
distribution associated with evaluation period activities or events as 
determined by the Government.
    (d) The Government will promptly make payment of any award fee upon 
the submission by the contractor to the contracting officer's authorized 
representative, of a public voucher or invoice in the amount of the 
total fee earned for the period evaluated. Payment may be made without 
using a contract modification.

                             (End of clause)



Sec. 1252.216-74  Settlement of letter contract.

    As prescribed in (TAR) 48 CFR 1216.603-4, insert the following 
clause:

                Settlement of Letter Contract (OCT 1994)

    (a) This contract constitutes the definitive contract contemplated 
by issuance of letter contract ------ (insert number) dated -------- 
(insert effective date). It supersedes the letter contract and its 
modification number(s) -------- (insert number(s)) and, to the extent of 
any inconsistencies, governs.
    (b) The cost(s) and fee(s), or price(s), established in this 
definitive contract represents full and complete settlement of letter 
contract (insert number and modification number(s) -------- (insert 
number(s)). Payment of the agreed upon fee or profit withheld pending 
definitization of the letter contract, may commence immediately at the 
rate and times stated within this contract.

                             (End of clause)



Sec. 1252.217-70  Guarantee.

    As prescribed at (TAR) 48 CFR 1217.7001(a), insert the following 
clause:

                          Guarantee (APR 2005)

    (a) In the event any work performed or materials furnished by the 
contractor prove defective or deficient within 60 days from the date of 
redelivery of the vessel(s), the Contractor, as directed by the 
Contracting Officer and at its own expense, shall correct and repair the 
deficiency to the satisfaction of the Contracting Officer.
    (b) If the Contractor or any subcontractor has a guarantee for work 
performed or materials furnished that exceeds the 60 day period, the 
Government shall be entitled to rely upon the longer guarantee until its 
expiration.
    (c) With respect to any individual work item identified as 
incomplete at the time of redelivery of the vessel(s), the guarantee 
period shall run from the date the item is completed.
    (d) If practicable, the Government shall give the Contractor an 
opportunity to correct the deficiency.
    (1) If the Contracting Officer determines it is not practicable or 
is otherwise not advisable to return the vessel(s) to the Contractor, or 
the Contractor fails to proceed with the repairs promptly, the 
Contracting Officer may direct that the repairs be performed elsewhere, 
at the Contractor's expense.
    (2) If correction and repairs are performed by other than the 
Contractor, the Contracting Officer may discharge the Contractor's 
liability by making an equitable deduction in the price of the contract.
    (e) The Contractor's liability shall extend for an additional 90 day 
guarantee period on those defects or deficiencies that the Contractor 
corrected.
    (f) At the option of the Contracting Officer, defects and 
deficiencies may be left uncorrected. In that event, the Contractor and 
Contracting Officer shall negotiate an equitable reduction in the 
contract price. Failure to agree upon an equitable reduction shall 
constitute a dispute under the Disputes clause of this contract.

                             (End of clause)



Sec. 1252.217-71  Delivery and shifting of vessel.

    As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the 
following clause:

               Delivery and Shifting of Vessel (OCT 1994)

    The Government shall deliver the vessel to the Contractor at his 
place of business. Upon completion of the work, the Government shall 
accept delivery of the vessel at the Contractor's place of business. The 
Contractor shall provide, at no additional charge, upon 24 hours' 
advance notice, a tug or tugs and docking pilot, acceptable to the 
Contracting Officer, to assist in handling the vessel between (to and 
from) the Contractor's plant and the nearest point in a waterway 
regularly navigated by vessels of equal or greater draft and length. 
While the vessel is in the hands of the Contractor, any necessary 
towage, cartage, or other transportation between ship and shop or 
elsewhere, which may be incident to the work herein

[[Page 642]]

specified, shall be furnished by the Contractor without additional 
charge to the Government.

                             (End of clause)



Sec. 1252.217-72  Performance.

    As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the 
following clause:

                         Performance (OCT 1994)

    (a) Upon the award of the contract, the Contractor shall promptly 
start the work specified and shall diligently prosecute the work to 
completion. The Contractor shall not start work until the contract has 
been awarded except in the case of emergency work ordered by the 
Contracting Officer in writing.
    (b) The Government shall deliver the vessel described in the 
contract at the time and location specified in the contract. Upon 
completion of the work, the Government shall accept delivery of the 
vessel at the time and location specified in the contract.
    (c) The Contractor shall without charge--
    (1) Make available to personnel of the vessel while in dry dock or 
on a marine railway, sanitary lavatory and similar facilities at the 
plant acceptable to the Contracting Officer;
    (2) Supply and maintain suitable brows and gangways from the pier, 
dry dock, or marine railway to the vessel;
    (3) Treat salvage, scrap or other ship's material of the Government 
resulting from performance of the work as items of Government-furnished 
property, in accordance with the Government Property (Fixed Price 
Contracts) clause;
    (4) Perform, or pay the cost of, any repair, reconditioning or 
replacement made necessary as the result of the use by the Contractor of 
any of the vessel's machinery, equipment or fittings, including, but not 
limited to, winches, pumps, rigging, or pipe lines; and
    (5) Furnish suitable offices, office equipment and telephones at or 
near the site of the work for the Government's use.
    (d) The contract will state whether dock and sea trials are required 
to determine whether or not the Contractor has satisfactorily performed 
the work.
    (1) If dock and sea trials are required, the vessel shall be under 
the control of the vessel's commander and crew.
    (2) The Contractor shall not conduct dock and sea trials not 
specified in the contract without advance approval of the Contracting 
Officer. Dock and sea trials not specified in the contract shall be at 
the Contractor's expense and risk.
    (3) The Contractor shall provide and install all fittings and 
appliances necessary for dock and sea trials. The Contractor shall be 
responsible for care, installation, and removal of instruments and 
apparatus furnished by the Government for use in the trials.

                             (End of clause)



Sec. 1252.217-73  Inspection and manner of doing work.

    As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the 
following clause:

             Inspection and Manner of Doing Work (OCT 1994)

    (a) The Contractor shall perform work in accordance with the 
contract, any drawings and specifications made a part of the job order, 
and any change or modification issued under the Changes clause.
    (b)(1) Except as provided in paragraph (b)(2) of this clause, and 
unless otherwise specifically provided in the contract, all operational 
practices of the Contractor and all workmanship, material, equipment, 
and articles used in the performance of work under this contract shall 
be in accordance with the best commercial marine practices and the rules 
and requirements of all appropriate regulatory bodies including, but not 
limited to the American Bureau of Shipping, the U.S. Coast Guard, and 
the Institute of Electrical and Electronic Engineers, in effect at the 
time of Contractor's submission of offer, and shall be intended and 
approved for marine use.
    (2) When Navy specifications are specified in the contract, the 
Contractor shall follow Navy standards of material and workmanship. The 
solicitation shall prescribe the Navy standard whenever applicable.
    (c) The Government may inspect and test all material and workmanship 
at any time during the Contractor's performance of the work.
    (1) If, prior to delivery, the Government finds any material or 
workmanship is defective or not in accordance with the contract, in 
addition to its rights under the Guarantee clause, the Government may 
reject the defective or nonconforming material or workmanship and 
require the Contractor to correct or replace it at the Contractor's 
expense.
    (2) If the Contractor fails to proceed promptly with the replacement 
or correction of the material or workmanship, the Government may replace 
or correct the defective or nonconforming material or workmanship and 
charge the Contractor the excess costs incurred.
    (3) As specified in the contract, the Contractor shall provide and 
maintain an inspection system acceptable to the Government.
    (4) The Contractor shall maintain complete records of all inspection 
work and shall

[[Page 643]]

make them available to the Government during performance of the contract 
and for 90 days after the completion of all work required.
    (d) The Contractor shall not permit any welder to work on a vessel 
unless the welder is, at the time of the work, qualified to the 
standards established by the U.S. Coast Guard, American Bureau of 
Shipping, or Department of the Navy for the type of welding being 
performed. Qualifications of a welder shall be as specified in the 
contract.
    (e) The Contractor shall--
    (1) Exercise reasonable care to protect the vessel from fire;
    (2) Maintain a reasonable system of inspection over activities 
taking place in the vicinity of the vessel's magazines, fuel oil tanks, 
or storerooms containing flammable materials.
    (3) Maintain a reasonable number of hose lines ready for immediate 
use on the vessel at all times while the vessel is berthed alongside the 
Contractor's pier or in dry dock or on a marine railway;
    (4) Unless otherwise provided in the contract, provide sufficient 
security patrols to reasonably maintain a fire watch for protection of 
the vessel when it is in the Contractor's custody;
    (5) To the extent necessary, clean, wash, and steam out or otherwise 
make safe, all tanks under alteration or repair.
    (6) Furnish the Contracting Officer a ``gas-free'' or ``safe-for-
hotwork'' certificate before any hot work is done on a tank;
    (7) Treat the contents of any tank as Government property in 
accordance with the Government Property (Fixed-Price Contracts) clause; 
and
    (8) Dispose of the contents of any tank only at the direction, or 
with the concurrence, of the Contracting Officer.
    (9) Be responsible for the proper closing of all openings to the 
vessel's underwater structure upon which work has been performed. The 
contractor additionally must advise the COTR of the status of all valves 
closures and openings for which the contractor's workers were 
responsible.
    (f) Except as otherwise provided in the contract, when the vessel is 
in the custody of the Contractor or in dry dock or on a marine railway 
and the temperature is expected to go as low as 35 Fahrenheit, the 
Contractor shall take all necessary steps to--
    (1) Keep all hose pipe lines, fixtures, traps, tanks, and other 
receptacles on the vessel from freezing; and
    (2) Protect the stern tube and propeller hubs from frost damage.
    (g) The Contractor shall, whenever practicable--
    (1) Perform the required work in a manner that will not interfere 
with the berthing and messing of Government personnel attached to the 
vessel; and
    (2) Provide Government personnel attached to the vessel access to 
the vessel at all times.
    (h) Government personnel attached to the vessel shall not interfere 
with the Contractor's work or workers.
    (i)(1) The Government does not guarantee the correctness of the 
dimensions, sizes, and shapes set forth in any contract, sketches, 
drawings, plans, or specifications prepared or furnished by the 
Government, unless the contract requires that the Contractor perform the 
work prior to any opportunity to inspect.
    (2) Except as stated in paragraph (i)(1) of this clause, and other 
than those parts furnished by the Government, and the Contractor shall 
be responsible for the correctness of the dimensions, sizes, and shapes 
of parts furnished under this agreement.
    (j) The Contractor shall at all times keep the site of the work on 
the vessel free from accumulation of waste material or rubbish caused by 
its employees or the work. At the completion of the work, unless the 
contract specifies otherwise, the Contractor shall remove all rubbish 
from the site of the work and leave the immediate vicinity of the work 
area ``broom clean.''

                             (End of clause)



Sec. 1252.217-74  Subcontracts.

    As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the 
following clause:

                         Subcontracts (OCT 1994)

    (a) Nothing contained in the contract shall be construed as creating 
any contractual relationship between any subcontractor and the 
Government. The divisions or sections of the specifications are not 
intended to control the Contractor in dividing the work among 
subcontractors or to limit the work performed by any trade.
    (b) The Contractor shall be responsible to the Government for acts 
and omissions of its own employees, and of subcontractors and their 
employees. The Contractor shall also be responsible for the coordination 
of the work of the trades, subcontractors, and material men.
    (c) The Contractor shall, without additional expense to the 
Government, employ specialty subcontractors where required by the 
specifications.
    (d) The Government or its representatives will not undertake to 
settle any differences between the Contractor and its subcontractors, or 
between subcontractors.

[[Page 644]]

                             (End of clause)



Sec. 1252.217-75  Lay days.

    As prescribed at (TAR) 48 CFR 1217.7001(c) and (e), insert the 
following clause:

                           Lay Days (OCT 1994)

    (a) Lay day time will be paid by the Government at the Contractor's 
stipulated bid price for this item of the contract when the vessel 
remains on the dry dock or marine railway as a result of any change that 
involves work in addition to that required under the basic contract.
    (b) No lay day time shall be paid until all items of the basic 
contract for which a price was established by the Contractor and for 
which docking of the vessel was required have been satisfactorily 
completed and accepted.
    (c) Days of hauling out and floating, whatever the hour, shall not 
be paid as lay day time, and days when no work is performed by the 
Contractor shall not be paid as lay day time.
    (d) Payment of lay day time shall constitute complete compensation 
for all costs, direct and indirect, to reimburse the Contractor for use 
of dry dock or marine railway.

                             (End of clause)

[70 FR 6507, Feb. 7, 2005, as amended at 70 FR 76418, Dec. 27, 2005]



Sec. 1252.217-76  Liability and insurance.

    As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the 
following clause:

                   Liability and Insurance (OCT 1994)

    (a) The Contractor shall exercise its best efforts to prevent 
accidents, injury, or damage to all employees, persons, and property, in 
and about the work, and to the vessel or part of the vessel upon which 
work is done.
    (b) Loss or damage to the vessel, materials, or equipment. (1) 
Unless otherwise directed or approved in writing by the Contracting 
Officer, the Contractor shall not carry insurance against any form of 
loss or damage to the vessel(s) or to the materials or equipment to 
which the Government has title or which have been furnished by the 
Government for installation by the Contractor. The Government assumes 
the risks of loss of and damage to that property.
    (2) The Government does not assume any risk with respect to loss or 
damage compensated for by insurance or otherwise or resulting from risks 
with respect to which the Contractor has failed to maintain insurance, 
if available, as required or approved by the Contracting Officer.
    (3) The Government does not assume risk of and will not pay for any 
costs of the following:
    (i) Inspection, repair, replacement, or renewal of any defects in 
the vessel(s) or material and equipment due to--
    (A) Defective workmanship performed by the Contractor or its 
subcontractors;
    (B) Defective materials or equipment furnished by the Contractor or 
its subcontractors; or
    (C) Workmanship, materials, or equipment which do not conform to the 
requirements of the contract, whether or not the defect is latent or 
whether or not the nonconformance is the result of negligence.
    (ii) Loss, damage, liability, or expense caused by, resulting from, 
or incurred as a consequence of any delay or disruption, willful 
misconduct or lack of good faith by the Contractor or any of its 
representatives that have supervision or direction of--
    (A) All or substantially all of the Contractor's business; or
    (B) All or substantially all of the Contractor's operation at any 
one plant.
    (4) As to any risk that is assumed by the Government, the Government 
shall be subrogated to any claim, demand or cause of action against 
third parties that exists in favor of the Contractor. If required by the 
Contracting Officer, the Contractor shall execute a formal assignment or 
transfer of the claim, demand, or cause of action.
    (5) No party other than the Contractor shall have any right to 
proceed directly against the Government or join the Government as a 
codefendant in any action.
    (6) Notwithstanding the foregoing, the Contractor shall bear the 
first $5,000 of loss or damage from each occurrence or incident, the 
risk of which the Government would have assumed under the provision of 
this paragraph (b).
    (c) Indemnification. The Contractor indemnifies the Government and 
the vessel and its owners against all claims, demands, or causes of 
action to which the Government, the vessel or its owner(s) might be 
subject as a result of damage or injury (including death) to the 
property or person of anyone other than the Government or its employees, 
or the vessel or its owner, arising in whole or in part from the 
negligence or other wrongful act of the Contractor, or its agents or 
employees, or any subcontractor, or its agents or employees.
    (1) The Contractor's obligation to indemnify under this paragraph 
shall not exceed the sum of $300,000 as a consequence of any single 
occurrence with respect to any one vessel.
    (2) The indemnity includes, without limitation, suits, actions, 
claims, costs, or demands of any kind, resulting from death,

[[Page 645]]

personal injury, or property damage occurring during the period of 
performance of work on the vessel or within 90 days after redelivery of 
the vessel. For any claim, etc., made after 90 days, the rights of the 
parties shall be as determined by other provisions of this contract and 
by law. The indemnity does apply to death occurring after 90 days where 
the injury was received during the period covered by the indemnity.
    (d) Insurance. (1) The Contractor shall, at its own expense, obtain 
and maintain the following insurance--
    (i) Casualty, accident, and liability insurance, as approved by the 
Contracting Officer, insuring the performance of its obligations under 
paragraph (c) of this clause.
    (ii) Workers Compensation Insurance (or its equivalent) covering the 
employees engaged on the work.
    (2) The Contractor shall ensure that all subcontractors engaged on 
the work obtain and maintain the insurance required in paragraph (d)(1) 
of this clause.
    (3) Upon request of the Contracting Officer, the Contractor shall 
provide evidence of the insurance required by paragraph (d) of this 
clause.
    (e) The Contractor shall not make any allowance in the contract 
price for the inclusion of any premium expense or charge for any reserve 
made on account of self-insurance for coverage against any risk assumed 
by the Government under this clause.
    (f) The Contractor shall give the Contracting Officer written notice 
as soon as practicable after the occurrence of a loss or damage for 
which the Government has assumed the risk.
    (1) The notice shall contain full details of the loss or damage.
    (2) If a claim or suit is later filed against the Contractor as a 
result of the event, the Contractor shall immediately deliver to the 
Government every demand, notice, summons, or other process received by 
the Contractor or its employees or representatives.
    (3) The Contractor shall cooperate with the Government and, upon 
request, shall assist in effecting settlements, securing and giving 
evidence, obtaining the attendance of witnesses, and in the conduct of 
suits. The Government shall reimburse the Contractor for expenses 
incurred in this effort, other than the cost of maintaining the 
Contractor's usual organization.
    (4) The Contractor shall not, except at its own expense, voluntarily 
make any payments, assume any obligation, or incur any expense other 
than what would be imperative for the protection of the vessel(s) at the 
time of the event.
    (g) In the event of loss of or damage to any vessel(s), material, or 
equipment which may result in a claim against the Government under the 
insurance provisions of this contract, the Contractor shall promptly 
notify the Contracting Officer of the loss or damage. The Contracting 
Officer may, without prejudice to any right of the Government, either--
    (1) Order the Contractor to proceed with replacement or repair, in 
which event the Contractor shall effect the replacement or repair;
    (i) The Contractor shall submit to the Contracting Officer a request 
for reimbursement of the cost of the replacement or repair together with 
whatever supporting documentation the Contracting Officer may reasonably 
require, and shall identify the request as being submitted under the 
Insurance clause of this contract.
    (ii) If the Government determines that the risk of the loss or 
damage is within the scope of the risks assumed by the Government under 
this clause, the Government will reimburse the Contractor for the 
reasonable allowable cost of the replacement or repair, plus a 
reasonable profit (if the work or replacement or repair was performed by 
the Contractor) less the deductible amount specified in paragraph (b) of 
this clause.
    (iii) Payments by the Government to the Contractor under this clause 
are outside the scope of and shall not affect the pricing structure of 
the contract, and are additional to the compensation otherwise payable 
to the Contractor under this contract; or
    (2) Decide that the loss or damage shall not be replaced or repaired 
and in that event, the Contracting Officer shall--
    (i) Modify the contract appropriately, consistent with the reduced 
requirements reflected by the unreplaced or unrepaired loss or damage; 
or
    (ii) Terminate the repair of any part or all of the vessel(s) under 
the Termination for Convenience of the Government clause of this 
contract.

                             (End of clause)



Sec. 1252.217-77  Title.

    As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the 
following clause:

                            Title (OCT 1994)

    (a) Unless otherwise provided, title to all materials and equipment 
to be incorporated in a vessel in the performance of this contract shall 
vest in the Government upon delivery at the location specified for the 
performance of the work.
    (b) Upon completion of the contract, or with the approval of the 
Contracting Officer during performance of the contract, all Contractor-
furnished materials and equipment not incorporated in, or placed on, any 
vessel, shall become the property of the Contractor, unless the 
Government has reimbursed the

[[Page 646]]

Contractor for the cost of the materials and equipments.
    (c) The vessel, its equipment, movable stores, cargo, or other 
ship's materials shall not be considered Government-furnished property.

                             (End of clause)



Sec. 1252.217-78  Discharge of liens.

    As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the 
following clause:

                      Discharge of Liens (OCT 1994)

    (a) The Contractor shall immediately discharge or cause to be 
discharged, any lien or right in rem of any kind, other than in favor of 
the Government, that exists or arises in connection with work done or 
materials furnished under this contract.
    (b) If any such lien or right in rem is not immediately discharged, 
the Government, at the expense of the Contractor, may discharge, or 
cause to be discharged, the lien or right.

                             (End of clause)



Sec. 1252.217-79  Delays.

    As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the 
following clause:

                            Delays (OCT 1994)

    When during the performance of this contract the Contractor is 
required to delay work on a vessel temporarily, due to orders or actions 
of the Government respecting stoppage of work to permit shifting the 
vessel, stoppage of hot work to permit bunkering, stoppage of work due 
to embarking or debarking passengers and loading or discharging cargo, 
and the Contractor is not given sufficient advance notice or is 
otherwise unable to avoid incurring additional costs on account thereof, 
an equitable adjustment shall be made in the price of the contract 
pursuant to the ``Changes'' clause.

                             (End of clause)



Sec. 1252.217-80  Department of Labor Safety and Health Regulations for 
          Ship Repairing.

    As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the 
following clause:

 Department of Labor Safety and Health Regulations for Ship Repair (APR 
                                  2005)

    Nothing contained in this contract shall relieve the Contractor of 
any obligations it may have to comply with--
    (a) The Occupational Safety and Health Act of 1970 (29 U.S.C. 651, 
et seq.);
    (b) The Occupational Safety and Health Standards for Shipyard 
Employment (29 CFR part 1915); or
    (c) Any other applicable Federal, State, and local laws, codes, 
ordinances, and regulations.

                             (End of clause)



Sec. 1252.219-71  Section 8(a) Direct Awards.

    As prescribed in (TAR) 48 CFR 1219.811-3(f), insert the following 
clause:

                  Section 8(A) Direct Awards (APR 2005)

    (a) This contract is issued as a direct award between the 
contracting activity and the 8(a) contractor pursuant to the Partnership 
Agreement between the Small Business Administration (SBA) and the 
Department of Transportation. SBA does retain responsibility for 8(a) 
certification, 8(a) eligibility determinations and related issues, and 
providing counseling and assistance to the 8(a) contractor under the 
8(a) program. The responsible SBA district office is: [To be completed 
by Contracting Officer at time of award]
    (b) The contracting activity is responsible for administering the 
contract and taking any action on behalf of the Government under the 
terms and conditions of the contract. However, the contracting activity 
shall give advance notice to the SBA before it issues a final notice 
terminating performance, either in whole or in part, under the contract. 
The contracting activity shall also coordinate with SBA prior to 
processing any novation agreement. The contracting activity may assign 
contract administration functions to a contract administration office.
    (c) The contractor agrees:
    (1) To notify the Contracting Officer, simultaneous with its 
notification to SBA (as required by SBA's 8 (a) regulations), when the 
owner or owners upon whom 8(a) eligibility is based plan to relinquish 
ownership or control of the concern. Consistent with 15 U.S.C. 
637(a)(21), transfer of ownership or control shall result in termination 
of the contract for convenience, unless SBA waives the requirement for 
termination prior to the actual relinquishing of ownership and control.
    (2) To adhere to the requirements of 52.219-14, Limitations on 
Subcontracting.

[[Page 647]]

                             (End of clause)



Sec. 1252.219-72  Notification of Competition Limited to Eligible 8(a) 
          Concerns--Alternate III.

    As prescribed in (TAR) 48 CFR 1219.811-3(d)(3), substitute the 
following paragraph for paragraph (c) of the basic FAR clause 52.219-18, 
Notification of Competition Limited to Eligible 8(a) Concerns.

Notification of Competition Limited to Eligible 8(a) Concerns--Alternate 
                             III (APR 2005)

    (c) Any award resulting from this solicitation will be made directly 
by the Contracting Officer to the successful 8(a) offeror selected 
through the evaluation criteria set forth in this solicitation.

                             (End of clause)



Sec. 1252.222-70  Strikes or picketing affecting timely completion of 
          the contract work.

    As prescribed in (TAR) 48 CFR 1222.101-71(a), insert the following 
clause:

 Strikes or Picketing Affecting Timely Completion of the Contract Work 
                               (OCT 1994)

    Notwithstanding any other provision hereof, the Contractor is 
responsible for delays arising out of labor disputes, including but not 
limited to strikes, if such strikes are reasonably avoidable. A delay 
caused by a strike or by picketing which constitutes an unfair labor 
practice is not excusable unless the Contractor takes all reasonable and 
appropriate action to end such a strike or picketing, such as the filing 
of a charge with the National Labor Relations Board, the use of other 
available Government procedures, and the use of private boards or 
organizations for the settlement of disputes.

                             (End of clause)



Sec. 1252.222-71  Strikes or picketing affecting access to a DOT 
          facility.

    As prescribed in (TAR) 48 CFR 1222.101-71(b), insert the following 
clause:

   Strikes or Picketing Affecting Access to a DOT Facility (OCT 1994)

    If the Contracting Officer notifies the Contractor in writing that a 
strike or picketing: (a) Is directed at the Contractor or subcontractor 
or any employee of either; and (b) impedes or threatens to impede access 
by any person to a DOT facility where the site of the work is located, 
the Contractor shall take all appropriate action to end such strike or 
picketing, including, if necessary, the filing of a charge of unfair 
labor practice with the National Labor Relations Board or the use of 
other available judicial or administrative remedies.

                             (End of clause)



Sec. 1252.223-70  Removal or disposal of hazardous substances--
          applicable licenses and permits.

    As prescribed in (TAR) 48 CFR 1223.303, insert the following clause:

  Removal or Disposal of Hazardous Substances--Applicable Licenses and 
                           Permits (DEC 1997)

    The Contractor has ------ does not have ------ all licenses and 
permits required by Federal, state, and local laws to perform hazardous 
substance(s) removal or disposal services. If the Contractor does not 
currently possess these documents, it must obtain all requisite licenses 
and permits within ------ days after date of award. The Contractor shall 
provide evidence of said documents to the Contracting Officer or 
designated Government representative prior to commencement of work under 
the contract.

                             (End of clause)



Sec. 1252.223-71  Accident and fire reporting.

    As prescribed in (TAR) 48 CFR 1223.7000(a), insert the following 
clause:

                 Accident and Fire Reporting (APR 2005)

    (a) The Contractor shall report to the Contracting Officer any 
accident or fire occurring at the site of the work which causes:
    (1) A fatality or as much as one lost workday on the part of any 
employee of the Contractor or subcontractor at any tier;
    (2) Damage of $1,000 or more to Government-owned or leased property, 
either real or personal;
    (3) Damage of $1,000 or more to Contractor or subcontractor owned or 
leased motor vehicles or mobile equipment; or
    (4) Damage for which a contract time extension may be requested.
    (b) Accident and fire reports required by paragraph (a) above shall 
be accomplished by the following means:
    (1) Accidents or fires resulting in a death, hospitalization of five 
or more persons, or destruction of Government-owned or leased property 
(either real or personal), the total value of which is estimated at 
$100,000 or more, shall be reported immediately by telephone to the 
Contracting Officer or his/her

[[Page 648]]

authorized representative and shall be confirmed by telegram or 
facsimile transmission within 24 hours to the Contracting Officer. Such 
telegram or facsimile transmission shall state all known facts as to 
extent of injury and damage and as to cause of the accident or fire.
    (2) Other accident and fire reports required by paragraph (a) above 
may be reported by the Contractor using a state, private insurance 
carrier, or Contractor accident report form which provides for the 
statement of:
    (i) The extent of injury; and
    (ii) The damage and cause of the accident or fire.
    Such report shall be mailed or otherwise delivered to the 
Contracting Officer within 48 hours of the occurrence of the accident or 
fire.
    (c) The Contractor shall assure compliance by subcontractors at all 
tiers with the requirements of this clause.

                             (End of clause)



Sec. 1252.223-72  Protection of human subjects.

    As prescribed in (TAR) 48 CFR 1223.7000(b), insert the following 
clause:

                 Protection of Human Subjects (APR 2005)

    The Contractor shall comply with the National Highway Traffic Safety 
Administration (NHTSA) policies and procedures for the protection of 
human subjects participating in activities supported directly or 
indirectly by contracts from DOT. A copy of the applicable NHTSA 
policies and procedures shall be provided to offerors and/or contractors 
upon request. In fulfillment of its assurance:
    (a) A committee competent to review projects and activities that 
involve human subjects shall be established and maintained by the 
Contractor.
    (b) The committee shall be assigned responsibility to determine for 
each activity planned and conducted that:
    (1) The rights and welfare of subjects are adequately protected;
    (2) The risks to subjects are outweighed by potential benefits; and
    (3) The informed consent of subjects shall be obtained by methods 
that are adequate and appropriate.
    (c) Committee reviews shall be conducted with objectivity and in a 
manner to ensure the exercise of independent judgment of the members. 
Members shall be excluded from review of projects or activities in which 
they have an active role or a conflict of interests.
    (d) Continuing constructive communication between the committee and 
the project directors must be maintained as a means of safeguarding the 
rights and welfare of subjects.
    (e) Facilities and professional attention required for subjects who 
may suffer physical, psychological, or other injury as a result of 
participating in an activity shall be provided.
    (f) The committee shall maintain records of committee review of 
applications and active projects, of documentation of informed consent, 
and of other documentation that may pertain to the selection, 
participation, and protection of subjects. Detailed records shall be 
maintained of circumstances of any review that adversely affects the 
rights or welfare of the individual subjects. Such materials shall be 
made available to DOT upon request.
    (g) The retention period of such records and materials shall be as 
specified at (FAR) 48 CFR 4.703.
    (h) Periodic reviews shall be conducted by the Contractor to assure, 
through appropriate administrative overview, that the practices and 
procedures designed for the protection of the rights and welfare of 
subjects are being effectively applied.

(Note: If the Contractor has or maintains a relationship with a 
Department of Health and Human Services approved Institutional Review 
Board (IRB) which can appropriately review this contract in accordance 
with the technical requirements and applicable NHTSA policies and 
procedures, that IRB will be considered acceptable for the purposes of 
this contract).

                             (End of clause)



Sec. 1252.223-73  Seat belt use policies and programs.

    As prescribed in (TAR) 48 CFR 1223.7000(c), insert the following 
clause:

             Seat Belt Use Policies and Programs (APR 2005)

    In accordance with Executive Order 13043, Increasing Seat Belt Use 
in the United States, dated April 16, 1997, the contractor is encouraged 
to adopt and enforce on-the-job seat belt use policies and programs for 
its employees when operating company-owned, rented, or personally-owned 
vehicles. The National Highway Traffic Safety Administration (NHTSA) is 
responsible for providing leadership and guidance in support of this 
Presidential initiative. For information on how to implement such a 
program or for statistics on the potential benefits and cost-savings to 
your company or organization, please visit the Buckle Up America section 
of NHTSA's Web site at www.nhtsa.dot.gov. Additional resources are 
available from the Network of Employers for Traffic Safety (NETS), a 
public-private partnership headquartered in the Washington, DC 
metropolitan area, and dedicated to improving the

[[Page 649]]

traffic safety practices of employers and employees. NETS is prepared to 
help with technical assistance, a simple, user friendly program kit, and 
an award for achieving the President's goal of 90 percent seat belt use. 
NETS can be contacted at 1-888-221-0045 or visit its Web site at 
www.trafficsafety.org.

                             (End of clause)



Sec. 1252.228-70  Loss of or damage to leased aircraft.

    As prescribed in (TAR) 48 CFR 1228.306-70(a) and (b), insert the 
following clause:

             Loss of or Damage to Leased Aircraft (DEC 1997)

    (a) Except normal wear and tear, the Government assumes all risk of 
loss of, or damage to, the leased aircraft during the term of this lease 
while the aircraft is in the possession of the Government.
    (b) In the event of damage to the aircraft, the Government, at its 
option, shall make the necessary repairs with its own facilities or by 
contract, or pay the Contractor the reasonable cost of repair of the 
aircraft.
    (c) In the event the aircraft is lost or damaged beyond repair, the 
Government shall pay the Contractor a sum equal to the fair market value 
of the aircraft at the time of such loss or damage, which value may be 
specifically agreed to in clause 1252.228-71, ``Fair Market Value of 
Aircraft,'' less the salvage value of the aircraft. However, the 
Government may retain the damaged aircraft or dispose of it as it 
wishes. In that event, the Contractor will be paid the fair market value 
of the aircraft as stated in the clause.
    (d) The Contractor agrees that the contract price does not include 
any cost attributable to hull insurance or to any reserve fund it has 
established to protect its interest in the aircraft. If, in the event of 
loss or damage to the leased aircraft, the Contractor receives 
compensation for such loss or damage in any form from any source, the 
amount of such compensation shall be:
    (1) Credited to the Government in determining the amount of the 
Government's liability; or
    (2) For an increment of value of the aircraft beyond the value for 
which the Government is responsible.
    (e) In the event of loss of or damage to the aircraft, the 
Government shall be subrogated to all rights of recovery by the 
Contractor against third parties for such loss or damage and the 
Contractor shall promptly assign such rights in writing to the 
Government.

                             (End of clause)



Sec. 1252.228-71  Fair market value of aircraft.

    As prescribed in (TAR) 48 CFR 1228.306-70(a) and (c), insert the 
following clause:

                Fair Market Value of Aircraft (OCT 1994)

    For purposes of the clause entitled ``Loss of or Damage to Leased 
Aircraft,'' the fair market value of the aircraft to be used in the 
performance of this contract shall be the lesser of the two values set 
out in paragraphs (a) and (b) below:
    (a) $------------; or
    (b) If the contractor has insured the same aircraft against loss or 
destruction in connection with other operations, the amount of such 
insurance coverage on the date of the loss or damage for which the 
Government may be responsible under this contract.

                             (End of clause)



Sec. 1252.228-72  Risk and indemnities.

    As prescribed in (TAR) 48 CFR 1228.306-70(a) and (d), insert the 
following clause:

                     Risk and Indemnities (DEC 1997)

    The Contractor hereby agrees to indemnify and hold harmless the 
Government, its officers and employees from and against all claims, 
demands, damages, liabilities, losses, suits and judgments (including 
all costs and expenses incident thereto) which may be suffered by, 
accrue against, be charged to or recoverable from the Government, its 
officers and employees by reason of injury to or death of any person 
other than officers, agents, or employees of the Government or by reason 
of damage to property of others of whatsoever kind (other than the 
property of the Government, its officers, agents or employees) arising 
out of the operation of the aircraft. In the event the Contractor holds 
or obtains insurance in support of this covenant, evidence of insurance 
shall be delivered to the Contracting Officer.

                             (End of clause)



Sec. 1252.228-73  Notification of Miller Act payment bond protection.

    As prescribed in guidance at (TAR) 48 CFR 1228.106-470, insert the 
following clause:

      Notification of Miller Act Payment Bond Protection (APR 2005)

    This notice clause shall be inserted by first tier subcontractors in 
all their subcontracts and shall contain information pertaining to

[[Page 650]]

the surety that provided the payment bond under the prime contract.
    (a) The prime contract is subject to the Miller Act, (40 U.S.C. 3131 
et al), under which the prime contractor has obtained a payment bond. 
This payment bond may provide certain unpaid employees, suppliers, and 
subcontractors a right to sue the bonding surety under the Miller Act 
for amounts owed for work performed and materials delivery under the 
prime contract.
    (b) Persons believing that they have legal remedies under the Miller 
Act should consult their legal advisor regarding the proper steps to 
take to obtain these remedies. This notice clause does not provide any 
party any rights against the Federal Government, or create any 
relationship, contractual or otherwise, between the Federal Government 
and any private party.
    (c) The surety which has provided the payment bond under the prime 
contract is:
________________________________________________________________________
(Name)
________________________________________________________________________
(Street Address)
________________________________________________________________________
(City, State, Zip Code)
________________________________________________________________________
(Contact & Tel. No.)

                             (End of clause)



Sec. 1252.231-70  Date of incurrence of costs.

    As prescribed in (TAR) 48 CFR 1231.205-32(b), insert the following 
clause:

                 Date of Incurrence of Costs (OCT 1994)

    The Contractor shall be entitled to reimbursement for costs incurred 
on or after ------------ in an amount not to exceed $------------ that, 
if incurred after this contract had been entered into, would have been 
reimbursable under this contract.

                             (End of clause)



Sec. 1252.235-70  Research misconduct.

    As prescribed in (TAR) 48 CFR 1235.7000, insert the following 
clause:

                     Research Misconduct (APR 2005)

    (a) Definitions. As used in this clause--
    Adjudication means the process of reviewing recommendations from the 
investigation phase and determining appropriate corrective actions.
    Complainant is the person who makes an allegation of research 
misconduct or the person who cooperates with an inquiry or 
investigation.
    DOT Oversight Organization is the DOT operating administration or 
secretarial office sponsoring or managing Federally funded research.
    Evidence includes, but is not limited to, research records, 
transcripts, or recordings of interviews, committee correspondence, 
administrative records, grant applications and awards, manuscripts, 
publications, expert analyses, and electronic data.
    Fabrication is making up data or results and recording or reporting 
them.
    Falsification is manipulating research materials, equipment, or 
processes, or changing or omitting data or results such that the 
research is not accurately represented in the research record.
    Inquiry is preliminary information gathering and fact finding to 
determine if an allegation, or apparent instance of research misconduct, 
warrants an investigation.
    Investigation is formal collection and evaluation of information and 
facts to determine if research misconduct can be established, to assess 
its extent and consequences, and to recommend appropriate action.
    Plagiarism is the appropriation of another person's ideas, 
processes, results, or words without giving appropriate credit. Research 
misconduct does not include honest error or differences of opinion.
    Research and Technology Coordinating Council (RTCC) is the lead DOT 
entity for coordination of all actions related to allegations of 
research misconduct. The respondent in a research misconduct finding may 
appeal through the RTCC to the Deputy Secretary of Transportation.
    Research Institution includes any contractor conducting research 
under DOT funded contractual instruments, agreements and similar 
instruments.
    Research misconduct means fabrication, falsification, or plagiarism, 
in proposing, performing, or reviewing research, or in reporting 
research results.
    Research record is the record of data or results that embody the 
facts resulting from scientific inquiry, and includes, but is not 
limited to, research proposals, laboratory records, both physical and 
electronic, progress reports, abstracts, theses, oral presentations, 
internal reports, and journal articles.
    Respondent is the person against whom an allegation of research 
misconduct has been made, or the person whose actions are the focus of 
the inquiry or investigation.
    (b) General guidelines--(1) Confidentiality. DOT organizations, 
including research organizations, are required to safeguard the 
confidentiality of the inquiry, investigation and decision-making 
processes, including maintaining complete confidentiality of all records 
and identities of respondents and complainants.
    (2) Retaliation prohibited. If a complainant who has reported 
possible research misconduct alleges retaliation on the part of

[[Page 651]]

DOT organization management, the report will be addressed by management 
officials who will conduct an inquiry into the allegations followed by 
an appropriate management action.
    (3) Separation of phases. DOT organizations and research 
organizations must ensure the separation of the Inquiry, Investigation 
and Determination Phases of this process.
    (4) In general, DOT organizations must strive to protect the 
interests of the Federal Government and the public in carrying out this 
process.
    (c) Elements to support a finding of research misconduct. Research 
institutions (including contractors) that receive Department of 
Transportation (DOT) funds shall respond to allegations of research 
misconduct. The following elements describe the type of behavior, level 
of intent and burden of proof required to support a finding of research 
misconduct:
    (1) There must be a significant departure from the accepted 
practices of the relevant research community;
    (2) The misconduct must have been committed intentionally, or 
knowingly, or recklessly and;
    (3) The allegation must be proven by a preponderance of the 
evidence.
    (d) DOT Oversight Organization Investigation. The DOT oversight 
organization may proceed with its own investigation at any time if:
    (1) DOT determines the institution is not prepared to handle the 
allegation in a manner consistent with this policy;
    (2) DOT involvement is needed to protect the public interest, 
including public health and safety;
    (3) The allegation involves an entity of sufficiently small size (or 
an individual) that it cannot sufficiently conduct the investigation 
itself.
    (4) The DOT oversight organization may take, or cause to be taken, 
interim administrative actions (including special certifications, 
assurances, or other administrative actions) when deemed appropriate to 
protect the welfare of human and animal subjects of research, prevent 
inappropriate use of Federal funds, or otherwise protect the public 
interest and safety.
    (e) Investigating research misconduct. Research Institutions, or in 
limited circumstances discussed in Section b, the DOT Oversight 
Organization, shall use the following procedures to investigate 
allegations of research misconduct:
    (1) Inquire promptly into the research misconduct allegation and 
complete an initial inquiry within 60 calendar days after receipt of the 
allegation.
    (2) Notify the contracting officer immediately, in writing, when an 
inquiry results in a determination that an investigation is warranted, 
and promptly begin an investigation.
    (3) Ensure the objectivity and expertise of the individuals selected 
to review allegations and conduct investigations.
    (4) Conduct the investigation according to established internal 
procedures and complete it within 120 calendar days of completing the 
initial inquiry.
    (5) Document the investigation. Include documentation that:
    (i) Describes the allegation(s);
    (ii) Lists the investigators;
    (iii) Describes the methods and procedures used to gather 
information and evaluate the allegation(s);
    (iv) Summarizes the records and data compiled, states the findings, 
and explains the supporting reasons and evidence;
    (v) States the potential impact of any research misconduct; and
    (vi) Describes and explains any institutional sanctions or 
corrective actions recommended, or imposed as appropriate within its 
jurisdiction and as consistent with other relevant laws.
    (6) Provide the respondent (the person against whom an allegation of 
research misconduct has been made) with a reasonable opportunity (e.g., 
30 calendar days) to review and respond to the investigation report. The 
respondent's written comments or rebuttal will be made part of the 
investigative record.
    (7) Within 30 calendar days after completion of an investigation, 
forward investigative reports, documentation, and respondent's response 
to the contracting officer who will coordinate with the oversight 
organization(s) sponsoring and/or monitoring the federally funded 
research.
    (8) Time extensions. Contractors should request time extensions as 
needed, from the contracting officer of the appropriate DOT oversight 
organization. The contracting officer has discretion to waive time 
requirements for good cause.
    (f) Activity sanctions or corrective actions. Upon receipt of the 
investigative reports from the contractor, the DOT oversight 
organization, in conjunction with the contracting officer, will review 
the report and determine the appropriate administrative action to be 
taken. In deciding what actions to take, the oversight organizations 
should consider: the severity of the misconduct; the degree to which the 
misconduct was knowing, intentional or reckless; and whether it was an 
isolated event or part of a pattern. Sanctions or corrective actions may 
range as follows:
    (1) Minimal restrictions--such as a letter of reprimand, additional 
conditions on awards, requiring third-party certification of accuracy or 
compliance with particular policies, regulations, guidelines, or special 
terms and conditions;

[[Page 652]]

    (2) Moderate restrictions--such as limitations on certain activities 
or expenditures under an active award, or special reviews of requests 
for funding;
    (3) More severe restrictions--such as termination of an active 
award, or government-wide suspension or debarment.
    (i) When the DOT oversight organization concludes an investigation 
with a determination of research misconduct, the DOT Office of the 
Senior Procurement Executive may notify any other sources of research 
that provide support to the respondent that a finding of research 
misconduct has been made.
    (ii) If there are reasonable indications that criminal violations 
may have occurred, the DOT oversight organization shall consult with the 
Office of Inspector General to determine an appropriate course of 
action, including disbarment or suspension. The DOT oversight 
organization will notify the respondent in writing of its action, 
sanctions to be imposed if applicable, and the DOT appeal procedures.
    (g) Appeals and Final Administrative Action. (1) The Federal 
Acquisition Regulation (FAR) governs in all matters pertaining to 
termination of the contract, and suspension/debarment.
    (2) In all other cases, the contractor may appeal the sanction or 
corrective action through the DOT Research and Technology Coordinating 
Council (RTCC) to the Deputy Secretary of Transportation, in writing 
within 30 calendar days after receiving written notification of the 
research misconduct finding and associated administrative action(s). The 
contractor shall mail a copy of the appeal to the contracting officer.
    (3) If there is no request for appeal within 30 calendar days, the 
administrative actions of the oversight organization shall be final.
    (4) If a request for appeal is received by the RTCC within the 30 
calendar day limit, the Deputy Secretary may have the RTCC review the 
appeal and make recommendations.
    (5) The RTCC on behalf of the Deputy Secretary will normally inform 
the appellant of the final decision on an appeal within 60 calendar days 
of receipt. This decision will then be the final DOT administrative 
action.
    (h) Criminal or Civil Fraud Violations. When the oversight 
organization concludes an investigation with a determination of research 
misconduct, the DOT Office of the Senior Procurement Executive may 
notify any other sources of research that provide support to the 
respondent. If criminal or civil fraud violations may have occurred, the 
oversight organization should promptly refer the matter to the DOT 
Inspector General, the Department of Justice or other appropriate 
investigative body.

                             (End of clause)



Sec. 1252.236-70  Special precautions for work at operating airports.

    As prescribed in (TAR) 48 CFR 1236.570, insert the following clause:

      Special Precautions for Work at Operating Airports (OCT 1994)

    (a) When work is to be performed at an operating airport, the 
Contractor must arrange its work schedule so as not to interfere with 
flight operations. Such operations will take precedence over 
construction convenience. Any operations of the Contractor which would 
otherwise interfere with or endanger the operations of aircraft shall be 
performed only at times and in the manner directed by the Contracting 
Officer. The Government will make every effort to reduce the disruption 
of the Contractor's operation.
    (b) Unless otherwise specified by local regulations, all areas in 
which construction operations are underway shall be marked by yellow 
flags during daylight hours and by red lights at other times. The red 
lights along the edge of the construction areas within the existing 
aprons shall be the electric type of not less than 100 watts intensity 
placed and supported as required. All other construction markings on 
roads and adjacent parking lots may be either electric or battery type 
lights. These lights and flags shall be placed so as to outline the 
construction areas and the distance between any two flags or lights 
shall not be greater than 25 feet. The Contractor shall provide adequate 
watch to maintain the lights in working condition at all times other 
than daylight hours. The hour of beginning and the hour of ending of 
daylight will be determined by the Contracting Officer.
    (c) All equipment and material in the construction areas or when 
moved outside the construction area shall be marked with airport safety 
flags during the day and when directed by the Contracting Officer, with 
red obstruction lights at nights. All equipment operating on the apron, 
taxiway, runway, and intermediate areas after darkness hours shall have 
clearance lights in conformance with instructions from the Contracting 
Officer. No construction equipment shall operate within 50 feet of 
aircraft undergoing fuel operations. Open flames are not allowed on the 
ramp except at times authorized by the Contracting Officer.
    (d) Trucks and other motorized equipment entering the airport or 
construction area shall do so only over routes determined by the 
Contracting Officer. Use of runways, aprons, taxiways, or parking areas 
as truck or equipment routes will not be permitted unless specifically 
authorized for such use. Flag personnel shall be furnished by the 
Contractor at points on apron and taxiway for

[[Page 653]]

safe guidance of its equipment over these areas to assure right of way 
to aircraft. Areas and routes used during the contract must be returned 
to their original condition by the Contractor. The maximum speed allowed 
at the airport shall be established by airport management. Vehicles 
shall be operated so as to be under safe control at all times, weather 
and traffic conditions considered. Vehicles must be equipped with head 
and tail lights during the hours of darkness.

                             (End of clause)



Sec. 1252.237-70  Qualifications of contractor employees.

    As prescribed in (TAR) 48 CFR 1237.110(a), insert the following 
clause:

            Qualifications of Contractor Employees (APR 2005)

    a. Definitions. As used in this clause--``Sensitive Information'' is 
any information that, if subject to unauthorized access, modification, 
loss, or misuse, or is proprietary data, could adversely affect the 
national interest, the conduct of Federal programs, or the privacy of 
individuals specified in The Privacy Act, 5 U.S.C. 552a, but has not 
been specifically authorized under criteria established by an Executive 
Order or an Act of Congress to be kept secret in the interest of 
national defense or foreign policy.
    b. Work under this contract may involve access to sensitive 
information which shall not be disclosed by the contractor unless 
authorized in writing by the contracting officer. To protect sensitive 
information, the contractor shall provide training to any contractor 
employees authorized to access sensitive information, and upon request 
of the Government, provide information as to an individual's suitability 
to have authorization.
    c. The Contracting Officer may require dismissal from work those 
employees deemed incompetent, careless, insubordinate, unsuitable, or 
otherwise objectionable, or whose continued employment is deemed 
contrary to the public interest or inconsistent with the best interest 
of national security.
    d. Contractor employees working on this contract must complete such 
forms, as may be necessary for security or other reasons, including the 
conduct of background investigations to determine suitability. Completed 
forms shall be submitted as directed by the Contracting Officer. Upon 
the Contracting Officer's request, the Contractor's employees shall be 
fingerprinted, or subject to other investigations as required.
    e. The Contractor shall ensure that contractor employees are:
    (1) Citizens of the United States of America or an alien who has 
been lawfully admitted for permanent residence or employment (indicated 
by immigration status) as evidenced Bureau of Citizenship and 
Immigration Services documentation; and
    (2) Have background investigations according to DOT Order 1630.2B, 
Personnel Security Management.
    f. The Contractor shall immediately notify the contracting officer 
when an employee no longer requires access to DOT computer systems due 
to transfer, completion of a project retirement or termination of 
employment.
    g. The Contractor shall include the substance of this clause in all 
subcontracts at any tier where the subcontractor may have access to 
Government facilities, sensitive information, or resources.

                             (End of clause)



Sec. 1252.237-71  Certification of data.

    As prescribed in (TAR) 48 CFR 1213.7101 and 1237.7003, insert the 
following provision:

                    Certification of Data (APR 2005)

    Notice: The Secretary of Transportation has determined that this 
certification shall be retained in accordance with Section 
4301(b)(1)(B)(i)(II) of the Federal Acquisition Reform Act (Public Law 
104-106, 41 U.S.C. 425, note) and DOT Memorandum dated July 17, 1996.
    (a) The offeror represents and certifies that to the best of its 
knowledge and belief, the information and/or data (e.g., company 
profile; qualifications; background statements; brochures) submitted 
with its offer is current, accurate, and complete as of the date of its 
offer.
    (b) The offeror understands that any inaccurate data provided to the 
Department of Transportation may subject the offeror, its 
subcontractors, its employees, or its representatives to: (1) 
prosecution for false statements pursuant to 18 U.S.C. 1001 and/or; (2) 
enforcement action for false claims or statements pursuant to the 
Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3801-3812 and 49 CFR 
part 31 and/or; (3) termination for default under any contract resulting 
from its offer and/or; (4) debarment or suspension.
    (c) The offeror agrees to obtain a similar certification from its 
subcontractors.

 Signature:_____________________________________________________________
 Date:__________________________________________________________________

Typed Name and Title:

________________________________________________________________________

________________________________________________________________________
Company Name:
________________________________________________________________________

    This certification concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the

[[Page 654]]

maker subject to prosecution under 18 U.S.C. 1001.

                           (End of provision)



Sec. 1252.237-72  Prohibition on advertising.

    As prescribed in (TAR) 48 CFR 1213.7101 and 1237.7003, insert the 
following clause:

                  Prohibition on Advertising (JAN 1996)

    The contractor or its representatives (including training 
instructors) shall not advertise or solicit business from attendees for 
private, non-Government training during contracted-for training 
sessions. This prohibition extends to unsolicited oral comments, 
distribution or sales of written materials, and/or sales of promotional 
videos or audio tapes. The contractor agrees to insert this clause in 
its subcontracts.

                             (End of clause)



Sec. 1252.237-73  Key personnel.

    As prescribed in (TAR) 48 CFR 1237.110(b), insert the following 
clause:

                        Key Personnel (APR 2005)

    (a) The personnel as specified below are considered essential to the 
work being performed under this contract and may, with the consent of 
the contracting parties, be changed from time to time during the course 
of the contract by adding or deleting personnel, as appropriate.
    (b) Before removing, replacing, or diverting any of the specified 
individuals, the Contractor shall notify the contracting officer, in 
writing, before the change becomes effective. The Contractor shall 
submit information to support the proposed action to enable the 
contracting officer to evaluate the potential impact of the change on 
the contract. The Contractor shall not remove or replace personnel under 
this contract until the Contracting Officer approves the change.
    The Key Personnel under this Contract are: (specify key personnel)

                             (End of clause)



Sec. 1252.239-70  Security requirements for unclassified information 
          technology resources.

    As prescribed in (TAR) 48 CFR 1239.70, insert the following clause:

Security Requirements for Unclassified Information Technology Resources 
                               (APR 2005)

    (a) The Contractor shall be responsible for Information Technology 
security for all systems connected to a Department of Transportation 
(DOT) network or operated by the Contractor for DOT, regardless of 
location. This clause is applicable to all or any part of the contract 
that includes information technology resources or services in which the 
Contractor has physical or electronic access to DOT's sensitive 
information that directly supports the mission of DOT. The term 
``information technology,'' as used in this clause, means any equipment 
or interconnected system or subsystem of equipment, including 
telecommunications equipment, that is used in the automatic acquisition, 
storage, manipulation, management, movement, control, display, 
switching, interchange, transmission, or reception of data or 
information. This includes both major applications and general support 
systems as defined by OMB Circular A-130. Examples of tasks that require 
security provisions include:
    (1) Hosting of DOT e-Government sites or other IT operations;
    (2) Acquisition, transmission or analysis of data owned by DOT with 
significant replacement cost should the contractor's copy be corrupted; 
and
    (3) Access to DOT general support systems/major applications at a 
level beyond that granted the general public, e.g. bypassing a firewall.
    (b) The Contractor shall develop, provide, implement, and maintain 
an IT Security Plan. This plan shall describe the processes and 
procedures that will be followed to ensure appropriate security of IT 
resources that are developed, processed, or used under this contract. 
The plan shall describe those parts of the contract to which this clause 
applies. The Contractor's IT Security Plan shall comply with applicable 
Federal Laws that include, but are not limited to, 40 U.S.C. 11331, the 
Federal Information Security Management Act (FISMA) of 2002 and the E-
Government Act of 2002. The plan shall meet IT security requirements in 
accordance with Federal and DOT policies and procedures, as they may be 
amended from time to time during the term of this contract that include, 
but are not limited to:
    (1) OMB Circular A-130, Management of Federal Information Resources, 
Appendix III, Security of Federal Automated Information Resources;
    (2) National Institute of Standards and Technology (NIST) 
Guidelines;
    (3) Departmental Information Resource Management Manual (DIRMM) and 
associated guidelines; and
    (4) DOT Order 1630.2B, Personnel Security Management
    (c) Within 30 days after contract award, the contractor shall submit 
the IT Security Plan to the DOT Contracting Officer for acceptance. This 
plan shall be consistent with and further detail the approach contained 
in

[[Page 655]]

the offeror's proposal or sealed bid that resulted in the award of this 
contract and in compliance with the requirements stated in this clause. 
The plan, as accepted by the Contracting Officer, shall be incorporated 
into the contract as a compliance document. The Contractor shall comply 
with the accepted plan.
    (d) Within 6 months after contract award, the contractor shall 
submit written proof of IT Security accreditation to the DOT for 
acceptance by the DOT Contracting Officer. Such written proof may be 
furnished either by the Contractor or by a third party. Accreditation 
must be in accordance with DOT Order 1350.2, which is available from the 
Contracting Officer upon request. This accreditation will include a 
final security plan, risk assessment, security test and evaluation, and 
disaster recovery plan/continuity of operations plan. This 
accreditation, when accepted by the Contracting Officer, shall be 
incorporated into the contract as a compliance document, and shall 
include a final security plan, a risk assessment, security test and 
evaluation, and disaster recovery/continuity of operations plan. The 
contractor shall comply with the accepted accreditation documentation.
    (e) On an annual basis, the contractor shall submit verification to 
the Contracting Officer that the IT Security Plan remains valid.
    (f) The contractor will ensure that the following banners are 
displayed on all DOT systems (both public and private) operated by the 
contractor prior to allowing anyone access to the system:

                           Government Warning

                      **WARNING**WARNING**WARNING**

    Unauthorized access is a violation of U.S. Law and Department of 
Transportation policy, and may result in criminal or administrative 
penalties. Users shall not access other user's or system files without 
proper authority. Absence of access controls IS NOT authorization for 
access! DOT information systems and related equipment are intended for 
communication, transmission, processing and storage of U.S. Government 
information. These systems and equipment are subject to monitoring by 
law enforcement and authorized Department officials. Monitoring may 
result in the acquisition, recording, and analysis of all data being 
communicated, transmitted, processed or stored in this system by law 
enforcement and authorized Department officials. Use of this system 
constitutes consent to such monitoring.

                      **WARNING**WARNING**WARNING**

    (g) The contractor will ensure that the following banner is 
displayed on all DOT systems that contain Privacy Act information 
operated by the contractor prior to allowing anyone access to the 
system:
    This system contains information protected under the provisions of 
the Privacy Act of 1974 (Public Law 93-579). Any privacy information 
displayed on the screen or printed shall be protected from unauthorized 
disclosure. Employees who violate privacy safeguards may be subject to 
disciplinary actions, a fine of up to $5,000, or both.
    (h) Contractor personnel requiring privileged access or limited 
privileged access to systems operated by the Contractor for DOT or 
interconnected to a DOT network shall be screened at an appropriate 
level in accordance with DOT Order 1630.2B, Personnel Security 
Management, as it may be amended from time to time during the term of 
this contract.
    (i) The Contractor shall ensure that its employees, in performance 
of the contract performing under this contract, receive annual IT 
security training in accordance with OMB Circular A-130, FISMA, and NIST 
requirements, as they may be amended from time to time during the term 
of this contract, with a specific emphasis on rules of behavior.
    (j) The Contractor shall afford the Government access to the 
Contractor's and subcontractors' facilities, installations, operations, 
documentation, databases and personnel used in performance of the 
contract. Access shall be provided to the extent required to carry out a 
program of IT inspection (to include vulnerability testing), 
investigation and audit to safeguard against threats and hazards to the 
integrity, availability and confidentiality of DOT data or to the 
function of information technology systems operated on behalf of DOT, 
and to preserve evidence of computer crime.
    (k) The Contractor shall incorporate the substance of this clause in 
all subcontracts that meet the conditions in paragraph (a) of this 
clause.
    (l) The contractor shall immediately notify the contracting officer 
when an employee terminates employment that has access to DOT 
information systems or data.

                             (End of clause)



Sec. 1252.239-71  Information technology security plan and 
          accreditation.

    As prescribed in (TAR) 48 CFR 1239.70, insert the following 
provision:

    Information Technology Security Plan and Accreditation (APR 2005)

    All offers submitted in response to this solicitation must address 
the approach for completing the security plan and accreditation 
requirements in TAR clause 1252.239-70.

[[Page 656]]

                           (End of provision)



Sec. 1252.242-70  Dissemination of information--educational 
          institutions.

    As prescribed in (TAR) 48 CFR 1242.7000(a), insert the following 
clause:

    Dissemination of Information--Educational Institutions (OCT 1994)

    (a) The Department of Transportation (DOT) desires widespread 
dissemination of the results of funded transportation research. The 
Contractor, therefore, may publish (subject to the provisions of the 
``Data Rights'' and ``Patent Rights'' clauses of the contract) research 
results in professional journals, books, trade publications, or other 
appropriate media (a thesis or collection of theses should not be used 
to distribute results because dissemination will not be sufficiently 
widespread). All costs of publication pursuant to this clause shall be 
borne by the Contractor and shall not be charged to the Government under 
this or any other Federal contract.
    (b) Any copy of material published under this clause must contain 
acknowledgment of DOT's sponsorship of the research effort and a 
disclaimer stating that the published material represents the position 
of the author(s) and not necessarily that of DOT. Articles for 
publication or papers to be presented to professional societies do not 
require the authorization of the Contracting Officer prior to release. 
However, two copies of each article shall be transmitted to the 
Contracting Officer at least two weeks prior to release or publication.
    (c) Press releases concerning the results or conclusions from the 
research under this contract shall not be made or otherwise distributed 
to the public without prior written approval of the Contracting Officer.
    (d) Publication under the terms of this clause does not release the 
Contractor from the obligation of preparing and submitting to the 
Contracting Officer a final report containing the findings and results 
of research, as set forth in the schedule of the contract.

                             (End of clause)



Sec. 1252.242-71  Contractor testimony.

    As prescribed in (TAR) 48 CFR 1242.7000(b), insert the following 
clause:

                     Contractor Testimony (OCT 1994)

    All requests for the testimony of the Contractor or its employees, 
and any intention to testify as an expert witness relating to: (a) Any 
work required by, and/or performed under, this contract; or (b) any 
information provided by any party to assist the Contractor in the 
performance of this contract, shall be immediately reported to the 
Contracting Officer. Neither the Contractor nor its employees shall 
testify on a matter related to work performed or information provided 
under this contract, either voluntarily or pursuant to a request, in any 
judicial or administrative proceeding unless approved, in advance, by 
the Contracting Officer or required by a judge in a final court order.

                             (End of clause)



Sec. 1252.242-72  Dissemination of contract information.

    As prescribed in (TAR) 48 CFR 1242.7000(c), insert the following 
clause:

            Dissemination of Contract Information (OCT 1994)

    The Contractor shall not publish, permit to be published, or 
distribute for public consumption, any information, oral or written, 
concerning the results or conclusions made pursuant to the performance 
of this contract, without the prior written consent of the Contracting 
Officer. Two copies of any material proposed to be published or 
distributed shall be submitted to the Contracting Officer.

                             (End of clause)



Sec. 1252.242-73  Contracting officer's technical representative.

    As prescribed in (TAR) 48 CFR 1242.7000(d), insert the following 
clause:

        Contracting Officer's Technical Representative (OCT 1994)

    (a) The Contracting Officer may designate Government personnel to 
act as the Contracting Officer's Technical Representative (COTR) to 
perform functions under the contract such as review and/or inspection 
and acceptance of supplies, services, including construction, and other 
functions of a technical nature. The Contracting Officer will provide a 
written notice of such designation to the Contractor within five working 
days after contract award or for construction, not less than five 
working days prior to giving the contractor the notice to proceed. The 
designation letter will set forth the authorities and limitations of the 
COTR under the contract.
    (b) The Contracting Officer cannot authorize the COTR or any other 
representative to sign documents (i.e., contracts, contract 
modifications, etc.) that require the signature of the Contracting 
Officer.

[[Page 657]]

                             (End of clause)



Sec. 1252.245-70  Government property reports.

    As prescribed in (TAR) 48 CFR 1245.505-70, insert the following 
clause:

                 Government Property Reports (OCT 1994)

    (a) The Contractor shall prepare an annual report of Government 
property in its possession and the possession of its subcontractors.
    (b) The report shall be submitted to the Contracting Officer not 
later than September 15 of each calendar year on Form DOT F 4220.43, 
Contractor Report of Government Property.

                             (End of clause)



                 Sec. Appendix to Part 1252--Tar Matrix

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[70 FR 76418, Dec. 27, 2005]

                             PART 1253_FORMS

                  Subpart 1253.2_Prescription of Forms

Sec.

Sec. 1253.204 Administrative matters.

Sec. 1253.222 Application of labor laws to Government acquisitions.

Sec. 1253.222-70 Conveyance of invention rights acquired by the 
          Government.

Sec. 1253.245-70 Report of Government property.

                  Subpart 1253.3_Illustration of Forms


Sec. 1253.303 Agency forms.


Sec. Appendix to Subpart 1253.3

    Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.

    Source: 70 FR 6507, Feb. 7, 2005, unless otherwise noted.

                  Subpart 1253.2_Prescription of Forms



Sec. 1253.204  Administrative matters.

    The following forms are prescribed for use in the closeout of 
applicable contracts, as specified in (TAR) 48 CFR 1204.804-570:
    (a) Form DOT F 4220.4, Contractor's Release. (See (TAR) 48 CFR 
1204.804-570.) Form DOT F 4220.4 is authorized for local reproduction 
and a copy is furnished for this purpose in the appendix to subpart 
1253.3.
    (b) Form DOT 4220.45, Contractor's Assignment of Refunds, Rebates, 
Credits, and Other Amounts. (See (TAR) 48 CFR 1204.804-570.) Form DOT F 
4220.45 is authorized for local reproduction and a copy is furnished for 
this purpose in the appendix to subpart 1253.3.
    (c) Form DOT F 4220.46, Cumulative Claim and Reconciliation 
Statement. (See (TAR) 48 CFR 1204.804-570.) Form DOT F 4220.46 is 
authorized for local reproduction and a copy is furnished for this 
purpose in the appendix to subpart 1253.3.
    (d) DD Form 882, Report of Inventions and Subcontracts. (See (TAR) 
48 CFR 1204.804-570.) DD Form 882 can be found at http://
www.aro.army.mil/forms/d882.pdf.



Sec. 1253.222  Application of labor laws to Government acquisitions.

    The following form is prescribed for use in connection with the 
application of labor laws, as specified in (TAR) 48 CFR 1222.406-9:
    Form DOT F 4220.7, Employee Claim for Wage Restitution. (See (TAR) 
48 CFR 1222.406-9(c)(1).) Form DOT F 4220.7 is authorized for local 
reproduction and a copy is furnished for this purpose in the Appendix to 
for subpart 1253.3.



Sec. 1253.227-70  Conveyance of invention rights acquired by the 
          Government.

    The following form is prescribed as a means for contractors to 
report inventions made in the course of contract performance, as 
specified in 1227.305-4:
    DD Form 882, Report of Inventions and Subcontracts. DD Form 882 can 
be found at http://www.aro.army.mil/forms/d882.pdf.



Sec. 1253.245-70  Report of Government property.

    The following form is prescribed for use by contractors to report 
Government property, as specified in (TAR) 48 CFR 1245.505-1470:
    Form DOT F 4220.43, Contractor Report of Government Property. See 
1245.505-1470.) Form DOT F 4220.43 is authorized for local reproduction 
and a copy is furnished for this purpose in the appendix to subpart 
1253.3.

                  Subpart 1253.3_Illustration of Forms



Sec. 1253.303  Agency forms.

    This subpart contains illustrations of DOT and other agency forms 
specified by the TAR for use in DOT acquisitions.

[[Page 662]]

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[[Page 663]]





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[[Page 669]]



                   CHAPTER 13--DEPARTMENT OF COMMERCE




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1301            Department of Commerce Acquisition 
                    Regulations System......................         671
1302            Definitions of words and terms..............         673
1303            Improper business practices and personal 
                    conflicts of interest...................         676
1304            Administrative matters......................         678
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
1305            Publicizing contact actions.................         680
1306            Competition requirements....................         680
1307            Acquisition planning........................         681
1308            Required sources of supplies and services...         682
1309            Contractor qualifications...................         682
1311            Describing agency needs.....................         686
1312            Acquisition of commercial items.............         686
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1313            Simplified acquisition procedures...........         687
1314            Sealed bidding..............................         688
1315            Contracting by negotiation..................         689
1316            Types of contracts..........................         691
1317            Special contracting methods.................         692
1318            Emergency acquisitions......................         693
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1319            Small business programs.....................         695
1322            Application of labor laws to Government 
                    acquisitions............................         697
1323            Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         699
1324            Protection of privacy and freedom of 
                    information.............................         699
1325            Foreign acquisition.........................         700

[[Page 670]]

1326            Other socioeconomic programs................         700
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1327            Patents, data, and copyrights...............         701
1328            Bonds and insurance.........................         702
1329            Taxes.......................................         703
1330            Cost accounting standards administration....         704
1331            Contract cost principles and procedures.....         704
1332            Contract financing..........................         705
1333            Protests, disputes, and appeals.............         707
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1334            Major system acquisition....................         709
1335            Research and development contracting........         709
1336            Construction and architect-engineer 
                    contracts...............................         711
1337            Service contracting.........................         712
1339            Acquisition of information technology.......         713
1341            Acquisition of utility services.............         713
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1342            Contract administration.....................         715
1344            Subcontracting policies and procedures......         716
1345            Government property.........................         716
1346            Quality assurance...........................         716
1348            Value engineering...........................         717
1349            Termination of contracts....................         717
1350            Extraordinary contractual actions...........         718
                     SUBCHAPTER H--CLAUSES AND FORMS
1352            Solicitation provisions and contract clauses         719
1353            Forms.......................................         771
            SUBCHAPTER I--DEPARTMENT SUPPLEMENTAL REGULATIONS
1370            Universal solicitation provisions and 
                    contract clauses........................         772
1371            Acquisitions involving ship construction and 
                    ship repair.............................         772

[[Page 671]]

                          SUBCHAPTER A_GENERAL

     PART 1301_DEPARTMENT OF COMMERCE ACQUISITION REGULATIONS SYSTEM

Sec.

Sec. 1301.000 Scope of part.

               Subpart 1301.1_Purpose, Authority, Issuance


Sec. 1301.101 Purpose.

Sec. 1301.103 Authority.

Sec. 1301.104 Applicability.

Sec. 1301.105 Issuance.

Sec. 1301.105-1 Publication and code arrangement.

Sec. 1301.105-2 Arrangement of regulations.

Sec. 1301.105-3 Copies.

              Subpart 1301.3_Agency Acquisition Regulations


Sec. 1301.301 Policy.

Sec. 1301.303 Publication and codification.

Sec. 1301.304 Agency control and compliance procedures.

                 Subpart 1301.4_Deviations From the FAR


Sec. 1301.403 Individual deviations.

Sec. 1301.404 Class deviations.

     Subpart 1301.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 1301.601 General.

Sec. 1301.602 Contracting officers.

Sec. 1301.602-1 Authority.

Sec. 1301.602-170 Provisions and clauses.

Sec. 1301.602-3 Ratification of unauthorized commitments.

Sec. 1301.602-370 Ratification approval by Procurement Counsel.

Sec. 1301.603 Selection, appointment, and termination of appointment.

Sec. 1301.603-1 General.

Sec. 1301.603-2 Selection.

Sec. 1301.603-3 Appointment.

Sec. 1301.603-4 Termination.

Sec. 1301.670 Appointment of contracting officer's representative (COR).

Sec. 1301.670-70 Provisions and clauses.

Sec. 1301.671 Assignment of program and project managers.

               Subpart 1301.7_Determinations and Findings


Sec. 1301.707 Signatory authority.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.



Sec. 1301.000  Scope of part.

    This part sets out general Department of Commerce Acquisition 
Regulation (CAR) policies, including information regarding the 
maintenance and administration of the CAR, acquisition policies and 
practices, and procedures for deviation from the CAR and the Federal 
Acquisition Regulation (FAR). This part describes the Commerce 
Acquisition Regulation in terms of establishment, relationship to the 
Federal Acquisition Regulation, arrangement, applicability, and 
deviation procedures.

               Subpart 1301.1_Purpose, Authority, Issuance



Sec. 1301.101  Purpose.

    The CAR establishes uniform acquisition policies and procedures that 
implement and supplement the FAR. If there is a discrepancy between the 
CAR and FAR, the FAR will take precedence.



Sec. 1301.103  Authority.

    The CAR is issued under the authority of section 22 of the Office of 
Federal Procurement Policy Act, as amended (41 U.S.C. 418b), and FAR 
Subpart 1.3 by the Department Procurement Executive pursuant to a 
delegation initiating from the Secretary of Commerce.



Sec. 1301.104  Applicability.

    The CAR applies to all Department of Commerce (DOC) acquisitions as 
defined in part 2 of the FAR, except where expressly excluded.



Sec. 1301.105  Issuance.



Sec. 1301.105-1  Publication and code arrangement.

    (a) The CAR is published in the Federal Register, in cumulative form 
in the Code of Federal Regulations (CFR), and is available online at the 
U.S. Department of Commerce, Office of Acquisition Management Web site.
    (b) The CAR is issued as chapter 13 of title 48 of the CFR.

[[Page 672]]



Sec. 1301.105-2  Arrangement of regulations.

    (a) General. The CAR is divided into the same parts, subparts, 
sections, and subsections as the FAR.
    (b) Numbering. If the DOC does not have supplemental regulations 
there will be no corresponding coverage in the CAR, and there will be 
gaps in the CAR numbering system.



Sec. 1301.105-3  Copies.

    (a) Copies of the CAR in Federal Register or CFR form may be 
purchased from the Superintendent of Documents, Government Printing 
Office, Washington, DC 20402.
    (b) The CAR is available online at the U.S. Department of Commerce, 
Office of Acquisition Management Web site (http://oam.ocs.doc.gov).

              Subpart 1301.3_Agency Acquisition Regulations



Sec. 1301.301  Policy.

    (a) The designee authorized to prescribe the CAR is set forth in the 
Commerce Acquisition Manual (CAM) 1301.70.
    (b) The DOC internal operating guidance and procedures are contained 
in the CAM and other policy guidance documents issued by the Procurement 
Executive relating to acquisitions. The DOC Contracting Offices may 
issue additional guidance and procedures.



Sec. 1301.303  Publication and codification.

    (a) The CAR parallels the FAR in format, arrangement and numbering 
system. Coverage within the CAR is identified by the prefix ``13'' or 
``130'' followed by the complete FAR citation to the subsection level 
(e.g., CAR coverage of FAR 1.602-1 is cited as 1301.602-1).
    (b) Supplementary material without a FAR counterpart will be 
codified using 70 and up as appropriate for the part, subpart, section, 
or subsection number (e.g., part 1370, subpart 1301.70, section 1301.370 
or subsection 1301.301-70).



Sec. 1301.304  Agency control and compliance procedures.

    Operating unit counsel shall limit issuance of directives that 
restrain the flexibilities found in the FAR.

                 Subpart 1301.4_Deviations From the FAR



Sec. 1301.403  Individual deviations.

    The designee authorized to approve individual deviations from the 
FAR is set forth in CAM 1301.70.



Sec. 1301.404  Class deviations.

    The designee authorized to approve class deviations from the FAR is 
set forth in CAM 1301.70.

     Subpart 1301.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 1301.601  General.

    The agency head for procurement matters is the Chief Financial 
Officer/Assistant Secretary for Administration (CFO/ASA), unless 
prohibited by statute. The authority for agency head for procurement 
matters is delegated to the Procurement Executive as the authority to 
establish lines of contracting authority within DOC and to implement 
policies and procedures related to the acquisition process. Specific 
contracting authorities are set forth in CAM 1301.70.



Sec. 1301.602  Contracting officers.



Sec. 1301.602-1  Authority.

    In accordance with CAM 1301.70, only individuals who have been 
certified as contracting officers through issuance of a Certificate of 
Appointment by the Senior Bureau Procurement Official may exercise the 
authority of DOC contracting officers. In addition to the authority to 
enter into, administer, and terminate contracts, contracting officers 
have been delegated certain functions as set out in appendix A to CAM 
1301.70.



Sec. 1301.602-170  Provisions and clauses.

    Insert clause 1352.201-70, Contracting Officer's Authority, in all 
solicitations and contracts.

[[Page 673]]



Sec. 1301.602-3  Ratification of unauthorized commitments.

    (a) Insert clause 1352.201-71, Ratification Release, in a contract 
document under which payment is made for unauthorized commitments after 
a ratification has been processed.
    (b)(1) Unauthorized commitments occur when the Department accepts 
goods or services in the absence of an enforceable contract entered into 
by an authorized official. It is the policy of DOC that all acquisitions 
are to be made only by Government officials having authority to make 
such acquisitions. Acquisitions made by other than authorized personnel 
are contrary to Departmental policy and the Department is not bound by 
any formal or informal type of agreement or contractual commitment which 
is made by persons who are not delegated contracting authority. Payment 
for goods or services accepted in the absence of an authorized 
commitment may be made only through the ratification process. 
Unauthorized commitments may be considered matters of serious misconduct 
and may subject the responsible employees to appropriate disciplinary 
actions.
    (2) The delegation of the ratification authority is set forth in CAM 
1301.70. All requests for ratification must fully explain the 
circumstances that gave rise to the unauthorized commitment and detail, 
if appropriate, any disciplinary action taken with respect to any 
responsible employee. Ratifications may be approved only if all criteria 
in FAR 1.602-3 have been met.



Sec. 1301.602-370  Ratification approval by Procurement Counsel.

    Ratifications may not be approved unless the concurrence of 
Procurement Counsel is obtained.



Sec. 1301.603  Selection, appointment, and termination of appointment.



Sec. 1301.603-1  General.

    The Department's procurement career management program and system 
for the selection, appointment, and termination of appointment of 
contracting officers are described in CAM 1301.6.



Sec. 1301.603-2  Selection.

    In addition to the criteria set forth in FAR 1.603-2, selection of 
contracting officers shall be based upon Section 4 of CAM 1301.6.



Sec. 1301.603-3  Appointment.

    In addition to the criteria set forth in FAR 1.603-3, appointment of 
contracting officers shall be based upon Section 4 of CAM 1301.6.



Sec. 1301.603-4  Termination.

    In addition to the criteria set forth in FAR 1.603-4, termination of 
contracting officers shall be based upon Section 4 of CAM 1301.6.



Sec. 1301.670  Appointment of contracting officer's representative 
          (COR).

    The Department's Contracting Officer's Representative certification 
program for the nomination, appointment and cancellation of CORs is 
described in CAM 1301.670.



Sec. 1301.670-70  Provisions and clauses.

    Insert clause 1352.201-72, Contracting Officer's Representative 
(COR), in all solicitations and contracts where a COR will be appointed.



Sec. 1301.671  Assignment of program and project managers.

    The Department's Program and Project Manager certification program 
for the assignment and certification of Program and Project Managers is 
described in CAM 1301.671.

               Subpart 1301.7_Determinations and Findings



Sec. 1301.707  Signatory authority.

    Signatory authority for determinations and findings (D&Fs) is 
specified in the FAR for the associated subject matter unless otherwise 
noted in CAM 1301.70.

                 PART 1302_DEFINTIONS OF WORDS AND TERMS

                       Subpart 1302.1_Definitions

Sec.

Sec. 1302.101 Definitions.

Sec. 1302.170 Abbreviations.


[[Page 674]]


    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                       Subpart 1302.1_Definitions



Sec. 1302.101  Definitions.

    Accountable Personal Property means all personal property for which 
responsibility for control is formally assigned to an individual, and 
official property records are maintained as set forth in DOC PPMM 
Chapter 4.
    Agency Head (or Head of Agency) (HA) means the Secretary of 
Commerce, except, pursuant to Department Organization Order (DOO) 10-5, 
Chief Financial Officer and Assistant Secretary for Administration, the 
head of the agency for procurement matters shall be the Chief Financial 
Officer and Assistant Secretary for Administration (CFO/ASA), unless a 
statute provides that the authority of the Secretary is non-delegable.
    Chief Acquisition Officer (CAO) means the Department's executive-
level non-career employee designated pursuant to the Services 
Acquisition Reform Act to advise and assist the head of the agency and 
other agency officials to ensure the mission of the agency is achieved 
through the management of the agency's acquisition activities. The CFO/
ASA has been designated by the Head of the Agency as the Chief 
Acquisition Officer for the Department of Commerce.
    Civilian Agency Acquisition Council (CAAC) means the council that 
assists the Administrator of General Services in developing and 
maintaining the Federal Acquisition Regulation (FAR) System by 
developing or reviewing all proposed changes to the FAR. The Council is 
comprised of a representative designated by each of several Federal 
departments and agencies, including the DOC. The CAAC coordinates its 
activities with the Defense Acquisition Regulations Council (DARC). The 
CAAC is authorized under 48 CFR 1.2.
    Commerce Acquisition Manual (CAM) means non-regulatory uniform 
policies and procedures for internal operations associated with 
acquiring supplies and services within the Department that implements 
and supplements the FAR and CAR.
    Commerce Acquisition Regulation (CAR) means uniform acquisition 
policies and procedures, which implement and supplement the FAR.
    Contracting Activity means the operating units identified under the 
definition of ``Operating Units'' below. Contracting activities may or 
may not have authority to operate contracting offices (see definition 
for Contracting Office).
    Contracting Office means an office that awards or executes contracts 
for supplies or services and performs post-award functions. The 
operating units authorized to operate contracting offices are identified 
in DAO 208-2.
    Contracting Officer means an individual designated authority by the 
Senior Bureau Procurement Official (BPO) to enter into, administer, and/
or terminate contracts and make related determinations and findings. 
Only those individuals who have been certified as contracting officers, 
through the issuance of a Certificate of Appointment (Contracting 
Officer Warrant (SF 1402)), by the BPO in accordance with the 
requirements and procedures of the CAR and the CAM may exercise the 
authorities of contracting officers. However, by virtue of their 
positions, the Head of the Agency, the Procurement Executive, and the 
Heads of Operating Units are also designated as contracting officers.
    Department or Departmental or DOC means the Department of Commerce.
    Head of Agency (HA)--see definition for ``Agency Head.''
    Head of Contracting Office (HCO) means those individuals designated 
by the BPO to head the contracting offices within each operating unit 
that has designated contracting authority to award and administer 
contracts. In performing their duties, HCOs are empowered to the full 
limits of the Department's contracting authority. The HCO must be a 
procurement professional in the GS-1102 occupational series (or 
equivalent OPM occupational designation). BPOs will issue each HCO a 
Contracting Officer Warrant that delegates the authority to enter into, 
administer, and/or terminate contracts and to make related 
determinations and findings.

[[Page 675]]

    Head of the Contracting Activity (HCA) means, for purposes of 
delegation of contracting authority, officials who are designated as 
Heads of Operating Units (those who are assigned by the President or by 
the Secretary to manage the primary or constituent operating units of 
the DOC) in orders establishing the respective operating units, with the 
exception of the Office of the Secretary. Such officials are designated 
as the HCA for procurements initiated in support of the procurement 
activities of that operating unit. The Chief Financial Officer and 
Assistant Secretary for Administration has been designated as the HCA 
for procurements initiated in support of the programs and activities of 
the Office of the Secretary and all other Secretarial Offices and 
Departmental Offices.
    Office of Small and Disadvantaged Business Utilization (OSDBU), The 
means the advocacy and advisory office responsible for promoting the use 
of small, small disadvantaged, 8(a), women-owned, veteran-owned, 
service-disabled veteran-owned, and HUBZone small businesses within the 
Department acquisition process.
    Office of the Assistant General Counsel for Administration, 
Employment & Labor Law Division means the Department Legal Office that 
provides advice and guidance to management regarding employment and 
labor law issues, including the legal standards for taking adverse and 
performance-based actions.
    Office of the Assistant General Counsel for Administration, Ethics 
Law and Program Division means the Department Legal Office that provides 
advice and guidance regarding conflict of interest statutes, ethics 
regulations, and related laws.
    Operating Units are organizational entities outside the Office of 
the Secretary charged with carrying out specified substantive functions 
(i.e., programs) of the Department and are identified in DAO 208-2.
    Procurement Counsel means, except for the Patent and Trademark 
Office (PTO), the Office of the Assistant General Counsel for Finance & 
Litigation, Contract Law Division, the office responsible for providing 
legal review of applicable contract actions and procurement legal advice 
to all operating units, and handling procurement-related litigation. 
``Procurement Counsel'' for all PTO procurement-related actions means 
Office of General Law.
    Procurement Executive (or Senior Procurement Executive (PE)) means 
the official appointed pursuant to Executive Order 12931 and the 
Services Acquisition Reform Act of 2003 to carry out the 
responsibilities identified in both the Executive Order and the Act. The 
Director for Acquisition Management is the Procurement Executive for the 
Department of Commerce.
    Senior Bureau Procurement Official (BPO) means the senior career 
procurement official, within each operating unit that has been delegated 
contracting authority, who is designated as the Senior Bureau 
Procurement Official. The BPO must be a procurement professional who has 
both experience and training in the area of Federal procurement and 
contracting. HCAs may designate one BPO within their organization to 
carry out the day-to-day functions of managing the contracting activity. 
BPOs may also serve as the Head of Contracting Office. The Procurement 
Executive will issue each BPO a Contracting Officer Warrant which 
delegates the authority to enter into, administer, and/or terminate 
contracts and to make related determinations and findings.



Sec. 1302.170  Abbreviations

AIR Additional Item Requirements
BPO Senior Bureau Procurement Official
CAAC Civilian Agency Acquisition Council
CAM Commerce Acquisition Manual
CAO Chief Acquisition Officer
CAR Commerce Acquisition Regulation
CFO/ASA Chief Financial Officer/Assistant Secretary for Administration
CFR Code of Federal Regulations
CO Contracting Officer
COR Contracting Officer's Representative
DAO Departmental Administrative Order
DOC Department of Commerce
DOO Departmental Organizational Order
D&F Determination and Findings
EVMS Earned Value Management System
FAR Federal Acquisition Regulation
HCA Head of Contracting Activity
HCO Head of Contracting Office
IRB Institutional Review Board
JOFOC Justification for Other than Full and Open Competition
NIST National Institute of Standards and Technology

[[Page 676]]

NOAA National Oceanic and Atmospheric Administration
OCI Organizational Conflict of Interest
OCIO Office of the Chief Information Officer
OFPP Office of Federal Procurement Policy
OIG Office of Inspector General
OMB Office of Management and Budget
OS Office of the Secretary
OSDBU Office of Small and Disadvantaged Business Utilization
PE Procurement Executive
PTO Patent and Trademark Office
RFP Request for Proposals
SBA Small Business Administration
OU Operating Unit

PART 1303_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 1303.1_Safeguards

Sec.

Sec. 1303.101 Standards of conduct.

Sec. 1303.101-2 Solicitation and acceptance of gratuities by government 
          personnel.

Sec. 1303.101-3 Agency regulations.

Sec. 1303.104 Procurement integrity.

Sec. 1303.104-4 Disclosure, protection and marking of contractor bid or 
          proposal information and source selection information.

Sec. 1303.104-7 Violations or possible violations.

      Subpart 1303.2_Contractor Gratuities to Government Personnel


Sec. 1303.203 Reporting suspected violations of the gratuities clause.

Sec. 1303.204 Treatment of violations.

        Subpart 1303.3_Reports of Suspected Antitrust Violations


Sec. 1303.303 Reporting suspected antitrust violations.

                     Subpart 1303.4_Contingent Fees


Sec. 1303.405 Misrepresentations or violations of the covenant against 
          contingent fees.

            Subpart 1303.5_Other Improper Business Practices


Sec. 1303.502 Subcontractor kickbacks.

Sec. 1303.502-2 Subcontractor kickbacks.

  Subpart 1303.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them


Sec. 1303.602 Exceptions.

             Subpart 1303.7_Voiding and Rescinding Contracts


Sec. 1303.704 Policy.

Sec. 1303.705 Procedures.

 Subpart 1303.8_Limitation on the Payment of Funds To Influence Federal 
                              Transactions


Sec. 1303.804 Policy.

Sec. 1303.806 Processing suspected violations.

    Subpart 1303.9_Whistleblower Protections for Contractor Employees


Sec. 1303.905 Procedures for investigating complaints.

Sec. 1303.906 Remedies.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                        Subpart 1303.1_Safeguards



Sec. 1303.101  Standards of conduct.



Sec. 1303.101-2  Solicitation and acceptance of gratuities by government 
          personnel.

    (a) Suspected violations of the prohibition on soliciting and 
accepting gratuities shall be reported to the Office of the Inspector 
General in accordance with DAO 207-10, Inspector General Investigations.
    (b) To obtain legal advice regarding the solicitation and acceptance 
of gratuities, contact the Office of the Assistant General Counsel for 
Administration, Ethics Law and Program Division.



Sec. 1303.101-3  Agency regulations.

    The Department has issued rules implementing Executive Order 11222 
prescribing employee standards of conduct (see DOC Office of General 
Counsel Web site).



Sec. 1303.104  Procurement integrity.



Sec. 1303.104-4  Disclosure, protection and marking of contractor bid or 
          proposal information and source selection information.

    Contractor bid or proposal information and source selection 
information must be protected from unauthorized disclosure in accordance 
with FAR Parts 3, 14 and 15, and CAM 1315.3.



Sec. 1303.104-7  Violations or possible violations.

    Suspected violations of the Procurement Integrity Act shall be 
reported to

[[Page 677]]

the individuals designated in CAM 1301.70.

      Subpart 1303.2_Contractor Gratuities to Government Personnel



Sec. 1303.203  Reporting suspected violations of the gratuities clause.

    Suspected violations of the Gratuities clause shall be reported to 
the HCA in writing detailing the circumstances. The report must identify 
the contractor and personnel involved, provide a summary of the 
pertinent evidence and circumstances that indicate a violation, and 
include any other available supporting documentation. The HCA will 
evaluate the report, and, if the allegations appear to support a 
violation, the matter will be referred to the Head of Contracting Office 
with copies provided to the Senior Procurement Executive and the DOC 
Office of Inspector General. See DAO 207-10 for procedures.



Sec. 1303.204  Treatment of violations.

    (a) The designee authorized to determine violations of the 
Gratuities clause is set forth in CAM 1301.70.
    (b) Upon receipt of an allegation or evidence of a violation of the 
Gratuities clause, the designee shall conduct a fact-finding. If there 
is a basis for further action, a signed notice shall be prepared and 
sent to the contractor by certified mail, return receipt requested, or 
any other method that provides signed evidence of receipt. If a reply is 
not received from the contractor within 45 calendar days of sending the 
notice, a decision shall be made on the appropriate action to be taken. 
If a reply is received from the contractor within 45 calendar days of 
sending the notice, the information in the reply must be considered 
before making a decision on the appropriate action to be taken. Upon 
request of the contractor, the contractor shall be provided an 
opportunity to appear in person to present information concerning the 
matter. A report shall be prepared following the presentation and the 
information must be considered when making a decision. A decision shall 
be made on the basis of all information available, including findings of 
fact and oral or written information submitted by the contractor. All 
mitigating factors shall be considered prior to making a final decision 
concerning what action will be taken.

        Subpart 1303.3_Reports of Suspected Antitrust Violations



Sec. 1303.303  Reporting suspected antitrust violations.

    Suspected anti-competitive practices and antitrust law violations, 
as described in FAR 3.301 and FAR 3.303, shall be reported to the 
Contract Law Division, by the HCO. A copy of the report shall be sent to 
the Procurement Executive concurrently with the submission to the Office 
of the Assistant General Counsel for Administration, Ethics Law and 
Program Division. The Office of the Assistant General Counsel will 
submit any required reports to the Attorney General.

                     Subpart 1303.4_Contingent Fees



Sec. 1303.405  Misrepresentations or violations of the covenant against 
          contingent fees.

    If the contracting officer has specific evidence or other reasonable 
basis to believe that a violation of the Covenant Against Contingent 
Fees has occurred, the matter shall be referred to the HCO, who shall, 
in appropriate circumstances, take one or more of the actions described 
in FAR 3.405(b). The HCO shall also refer the matter to the DOC Office 
of the Inspector General as well as the Office of the Assistant General 
Counsel for Administration, Ethics Law and Program Division. The Office 
of the Assistant General Counsel for Administration, Ethics Law and 
Program Division shall refer the matter to the Department of Justice, as 
appropriate.

            Subpart 1303.5_Other Improper Business Practices



Sec. 1303.502  Subcontractor kickbacks.



Sec. 1303.502-2  Subcontractor kickbacks.

    Suspected violations of the Anti-Kickback Act of 1986 shall be 
reported to the DOC Office of Inspector General.

[[Page 678]]

  Subpart 1303.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them



Sec. 1303.602  Exceptions.

    The designee authorized to make an exception to the policy in FAR 
3.601 is set forth in CAM 1301.70.

             Subpart 1303.7_Voiding and Rescinding Contracts



Sec. 1303.704  Policy.

    The designee authorized to declare void and rescind contracts, in 
cases in which there has been a final conviction for any violation of 18 
U.S.C. 201-224, is set forth in CAM 1301.70.



Sec. 1303.705  Procedures.

    The designee authorized to declare a contract void and rescinded is 
set forth in CAM 1301.70. The DOC will follow the procedures set forth 
in FAR 3.705.

 Subpart 1303.8_Limitation on the Payment of Funds To Influence Federal 
                              Transactions



Sec. 1303.804  Policy.

    The original OMB Form LLL, Disclosure of Lobbying Activities, shall 
be retained in the contract file and a copy shall be submitted to the 
Office of the Assistant General Counsel for Administration, Ethics Law 
and Program Division.



Sec. 1303.806  Processing suspected violations.

    Suspected violations of 31 U.S.C. 1352 shall be referred to the DOC 
Office of Inspector General and the Senior Procurement Executive.

    Subpart 1303.9_Whistleblower Protections for Contractor Employees



Sec. 1303.905  Procedures for investigating complaints.

    The designee authorized to take specified actions related to 
Inspector General findings regarding whistleblower complaints of 
contractor employees is set forth in CAM 1301.70.



Sec. 1303.906  Remedies.

    The designee authorized to determine whether a contractor has 
subjected an employee to reprisal and to determine the appropriate 
remedy is set forth in CAM 1301.70.

                    PART 1304_ADMINISTRATIVE MATTERS

                  Subpart 1304.2_Contract Distribution

Sec.

Sec. 1304.201 Procedures

Sec. 1304.201-70 Accountable personal property.

                    Subpart 1304.6_Contract Reporting


Sec. 1304.602 General

Sec. 1304.602-70 Federal Procurement Data System.

                Subpart 1304.8_Government Contract Files


Sec. 1304.804 Closeout of contract files

Sec. 1304.804-70 Contract closeout procedures.

Sec. 1304.805 Storage, handling, and disposal of contract files.

Sec. 1304.805-70 Storage, handling, and disposal of contract files.

             Subpart 1304.13_Personal Identity Verification


Sec. 1304.1301 Policy.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                  Subpart 1304.2_Contract Distribution



Sec. 1304.201  Procedures.



Sec. 1304.201-70  Accountable personal property.

    Provide one copy of all contracts and purchase orders for 
accountable personal property to the appropriate Departmental property 
management office(s) for inclusion in the Department's personal property 
system in accordance with the DOC Personal Property Management Manual. 
Accountable personal property purchased with a Governmentwide commercial 
purchase card is also to be reported to the property management office.

[[Page 679]]

                    Subpart 1304.6_Contract Reporting



Sec. 1304.602  General.



Sec. 1304.602-70  Federal Procurement Data System.

    Departmental Federal Procurement Data System reporting procedures 
are set forth in CAM 1304.602.

                Subpart 1304.8_Government Contract Files



Sec. 1304.804  Closeout of contract files.



Sec. 1304.804-70  Contract closeout procedures.

    CAM 1304.804 supplements FAR 4.804 with the Department's contract 
closeout procedures.



Sec. 1304.805  Storage, handling, and disposal of contract files.



Sec. 1304.805-70  Storage, handling, and disposal of contract files.

    CAM 1304.804 supplements FAR 4.805 with the Department's procedures 
for storage, handling, and disposal of contract files.

             Subpart 1304.13_Personal Identity Verification



Sec. 1304.1301  Policy.

    (a) Implementation of Federal Information Processing Standards 
Publication (FIPS PUB) 201 and OMB guidance M-05-24 is set forth in DOC 
Personal Identify Verification (PIV) Implementation Guidance, which is 
available on the Office of Security Web site.
    (b) The DOC official responsible for verifying contractor employee 
personal identity is set forth in the DOC Personal Identify Verification 
(PIV) Implementation Guidance.

[[Page 680]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                 PART 1305_PUBLICIZING CONTRACT ACTIONS

          Subpart 1305.2_Synopses of Proposed Contract Actions.

Sec.

Sec. 1305.202 Exceptions.

                  Subpart 1305.4_Release of Information


Sec. 1305.403 Requests from Members of Congress.

Sec. 1305.404 Release of long range acquisition estimates.

Sec. 1305.404-1 Release procedures.

                   Subpart 1305.5_Paid Advertisements


Sec. 1305.502 Authority.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

          Subpart 1305.2_Synopses of Proposed Contract Actions



Sec. 1305.202  Exceptions.

    The designee authorized to decide, in writing, that advance notice 
through the GPE (Governmentwide Point of Entry) is not appropriate or 
reasonable is set forth in CAM 1301.70.

                  Subpart 1305.4_Release of Information



Sec. 1305.403  Requests from Members of Congress.

    Requests from Members of Congress shall be handled in accordance 
with the policies and procedures outlined in DAO 218-2.



Sec. 1305.404  Release of long-range acquisition estimates.



Sec. 1305.404-1  Release procedures.

    The designee authorized to release long-range acquisition estimates 
is set forth in CAM 1301.70.

                   Subpart 1305.5_Paid Advertisements



Sec. 1305.502  Authority.

    The designee authorized to provide authorization for publication of 
paid advertisements in newspapers is set forth in CAM 1301.70. The 
contracting officer shall obtain written authorization from the 
designee.

                   PART 1306_COMPETITION REQUIREMENTS

   Subpart 1306.2_Full and Open Competition after Exclusion of Sources

Sec.

Sec. 1306.202 Establishing or maintaining alternative sources.

           Subpart 1306.3_Other Than Full and Open Competition


Sec. 1306.302 Circumstances permitting other than full and open 
          competition.

Sec. 1306.302-5 Authorized or required by statute.

Sec. 1306.303 Justification.

Sec. 1306.303-70 Documentation and legal review of justifications.

Sec. 1306.304 Approval of the justification.

                  Subpart 1306.5_Competition Advocates


Sec. 1306.501 Requirement.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

   Subpart 1306.2_Full and Open Competition After Exclusion of Sources



Sec. 1306.202  Establishing or maintaining alternative sources.

    The authority to exclude a source from a contract action in order to 
establish or maintain an alternate source is set forth in CAM 1301.70

[[Page 681]]

           Subpart 1306.3_Other Than Full and Open Competition



Sec. 1306.302  Circumstances permitting other than full and open 
          competition.



Sec. 1306.302-5  Authorized or required by statute.

    In accordance with Executive Order 13457, a sole source acquisition 
may not be justified on the basis of any earmark included in any non-
statutory source, except when otherwise required by law or when an 
earmark meets the criteria for funding set out in Executive Order 13457.



Sec. 1306.303  Justifications.



Sec. 1306.303-70  Documentation and legal review of justifications.

    The justification for providing for other than full and open 
competition in accordance with FAR 6.303-2 shall be provided on Form CD-
492, Justification for Other than Full and Open Competition. If the 
estimated value of the procurement is over legal review thresholds, 
concurrence by the Procurement Counsel is required.



Sec. 1306.304  Approval of the justification.

    The designee authorized to approve justifications for other than 
full and open competition at the dollar thresholds in FAR 6.304 is set 
forth in CAM 1301.70.

                  Subpart 1306.5_Competition Advocates



Sec. 1306.501  Requirement.

    The designee authorized to designate a Competition Advocate for the 
Department and each procuring activity is set forth in CAM 1301.70.

                     PART 1307_ACQUISITION PLANNING

                    Subpart 1307.1_Acquisition Plans

Sec.

Sec. 1307.102 Policy.

Sec. 1307.103 Agency head responsibilities.

Sec. 1307.105 Contents of written acquisition plans.

         Subpart 1307.3_Contractor versus Government Performance


Sec. 1307.302 Policy.

            Subpart 1307.5_Inherently Governmental Functions


Sec. 1307.503 Policy.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                    Subpart 1307.1_Acquisition Plans



Sec. 1307.102  Policy.

    In accordance with FAR 7.102, it is the Department's policy to 
perform acquisition planning and conduct market research in order to 
promote the acquisition of commercial items and provide for full and 
open competition.



Sec. 1307.103  Agency-head responsibilities.

    The designee authorized as responsible for compliance with FAR 7.103 
is set forth in CAM 1301.70.



Sec. 1307.105  Contents of written acquisition plans.

    Information on the contents of Acquisition Plans is set forth in CAM 
1307.1

         Subpart 1307.3_Contractor versus Government Performance



Sec. 1307.302  Policy.

    The Department's competitive sourcing policy and procedures are set 
forth in CAM 1307.370.

            Subpart 1307.5_Inherently Governmental Functions



Sec. 1307.503  Policy.

    All procurement request packages submitted by program offices to 
initiate a procurement action for services shall contain a written 
determination by the designated requirements official that affirms that 
none of the functions to be performed in the statement of work are 
inherently governmental. This policy applies to all services other than 
personal services issued under statutory authority. If the contracting

[[Page 682]]

officer determines that there are substantial questions whether the work 
statement involves performance of inherently governmental functions, the 
contracting officer shall submit the matter for review by Procurement 
Counsel. Disagreements regarding the determination shall be resolved by 
the Head of Contracting Office (HCO) after consultation with counsel.

           PART 1308_REQUIRED SOURCES OF SUPPLIES AND SERVICES

       Subpart 1308.8_Acquisition of Printing and Related Supplies

Sec.

Sec. 1308.802 Policy.

Sec. 1308.802-70 Printing.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

       Subpart 1308.8_Acquisition of Printing and Related Supplies



Sec. 1308.802  Policy.

    The designee authorized as the Department's central printing 
authority is set forth in CAM 1301.70.



Sec. 1308.802-70  Printing.

    Insert clause 1352.208-70, Restrictions on Printing and Duplicating, 
in all solicitations and contracts when printing documents may be 
required in the performance of the contract.

                   PART 1309_CONTRACTOR QUALIFICATIONS

               Subpart 1309.2_Qualifications Requirements

Sec.

Sec. 1309.202 Policy.

Sec. 1309.206 Acquisitions subject to qualification requirements.

Sec. 1309.206-1 General.

         Subpart 1309.4_Debarment, Suspension, and Ineligibility


Sec. 1309.403 Definitions.

Sec. 1309.405 Effect of listing.

Sec. 1309.405-1 Continuation of current contracts.

Sec. 1309.405-2 Restrictions on subcontracting.

Sec. 1309.406 Debarment.

Sec. 1309.406-1 General.

Sec. 1309.406-3 Procedures.

Sec. 1309.407 Suspension.

Sec. 1309.407-1 General.

Sec. 1309.407-3 Procedures.

   Subpart 1309.5_Organizational and Consultant Conflicts of Interest


Sec. 1309.503 Waiver.

Sec. 1309.503-70 Waiver.

Sec. 1309.506 Procedures.

Sec. 1309.507 Solicitation provisions and contract clauses.

Sec. 1309.507-1 Solicitation provisions.

Sec. 1309.507-2 Contract clauses.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

               Subpart 1309.2_Qualifications Requirements



Sec. 1309.202  Policy.

    (a) The designee authorized to establish qualification requirements 
is set forth in CAM 1301.70.
    (b) The designee authorized to waive the requirements of FAR 9.202 
(a)(1)(ii) through (4) for up to 2 years with respect to the item 
subject to the qualification requirement is set forth in CAM 1301.70. 
This waiver authority does not apply to the qualification requirements 
contained in a qualified product list, qualified manufacturer list, or 
qualification bidders list.
    (c) The designee authorized to approve proceeding with a 
procurement, rather than delay the award in order to provide a potential 
offeror an opportunity to demonstrate its ability to meet the standards 
specified in the qualifications, is set forth in CAM 1301.70.



Sec. 1309.206  Acquisitions subject to qualification requirements.



Sec. 1309.206-1  General.

    When the designee authorized in CAM 1301.70 determines that an 
emergency exists, or elects before or after award not to enforce a 
qualification requirement it had established, the qualification 
requirement may not be thereafter enforced unless the agency complies 
with FAR 9.202(a).

[[Page 683]]

         Subpart 1309.4_Debarment, Suspension, and Ineligibility



Sec. 1309.403  Definitions.

    The designees authorized as the Debarring and Suspending Officials 
are set forth in CAM 1301.70.



Sec. 1309.405  Effect of listing.

    (a) Contracting officers shall review the Excluded Parties List 
System (EPLS) listing for contractors after the opening of bids or 
receipt of proposals and, again, immediately prior to award.
    (b) The designee authorized to determine that a compelling reason 
exists to do business with a debarred/suspended contractor is set forth 
in CAM 1301.70. This designation does not apply to FAR 23.506(e).



Sec. 1309.405-1  Continuation of current contracts.

    (a) The designee authorized to direct the discontinuance of a 
contract or subcontract because of a debarment, suspension or proposed 
debarment is set forth in CAM 1301.70.
    (b) A written determination must be issued by the designee 
authorized in CAM 1301.70 before the following actions can be taken with 
a contractor that is debarred, suspended or proposed for debarment:
    (1) Place any orders exceeding the maximum on an indefinite delivery 
contract;
    (2) Place orders under Federal supply schedule contracts, blanket 
purchase orders or basic ordering agreements; or
    (3) Add new work or exercise options that extend the duration of a 
current contract or order.



Sec. 1309.405-2  Restrictions on subcontracting.

    The designee authorized to provide, in writing, compelling reasons 
for allowing Government consent to subcontracts with a contractor who is 
debarred, suspended or proposed for debarment is set forth in CAM 
1301.70.



Sec. 1309.406  Debarment.



Sec. 1309.406-1  General.

    Debarments and proposed debarments shall be effective throughout the 
Executive branch of the Government unless the designee authorized in CAM 
1301.70 states in writing compelling reasons justifying DOC doing 
business with the contractor.



Sec. 1309.406-3  Procedures.

    (a) Investigation and referral. DOC employees shall immediately 
refer any cause that might serve as the basis for debarment through the 
contracting officer to the debarring official.
    (b) Decision-making process. (1) Procedures shall afford the 
contractor, and any named affiliates, an opportunity to submit 
information and argument in opposition to the proposed debarment. This 
may be done in person, in writing or through a representative.
    (2) In actions not based upon a conviction or civil judgment, where 
the contractor's submission raises a genuine dispute over facts material 
to the proposed debarment, the following procedures will be followed:
    (i) Provide the contractor an opportunity to appear with counsel, 
submit documentary evidence, present witnesses and confront any person 
the agency presents;
    (ii) A transcribed record of the proceeding will be made, unless the 
agency and contractor mutually agree to waive the requirement for a 
transcript. This transcribed record is available to the contractor at 
cost.
    (c) Notice of proposal to debar. A notice of proposed debarment 
shall be issued by the debarring official in accordance with FAR 9.406-
3(c)(1) through (7).
    (d) Debarring official's decision. (1) For actions based upon a 
conviction or civil judgment, or when there is no authentic dispute over 
material facts, the debarring official's decision shall be based on all 
of the information in the administrative record plus any contractor-
submitted data. If there is no suspension in effect, the decision shall 
be rendered within 30 working days after receipt of any information and 
argument submitted by the contractor. The debarring official can extend 
this timeframe for good cause.
    (2)(i) When necessary, written findings of fact shall be prepared as 
to disputed material facts. The debarring official will utilize the 
information in

[[Page 684]]

the written findings of fact, the data submitted by the contractor plus 
any other information in the administrative record to develop the 
decision.
    (ii) While the debarring official may refer matters involving 
disputed material facts to another official for findings of fact, the 
debarring official can disregard any such findings in whole or in part 
upon a determination that they are clearly erroneous.
    (iii) After the conclusion of proceedings with respect to disputed 
facts, the debarring official will make a decision.
    (3) When the proposed debarment is not based upon a conviction or 
civil judgment, the reason for debarment must be based on a 
preponderance of the evidence.
    (e) Notice of debarring official's decision. FAR 9.406-3(e)(1) 
establishes the notification procedures when a debarment has been 
imposed, while FAR 9.406-3(e)(2) establishes the procedure when a 
debarment is not imposed.
    (f) Procurement counsel shall assist and advise the debarring 
official at each stage of the decision-making process.



Sec. 1309.407  Suspension.



Sec. 1309.407-1  General.

    Suspensions shall be effective throughout the executive branch of 
the Government, unless the designee set forth in CAM 1301.70 states in 
writing compelling reasons for continuing to do business with a 
suspended contractor.



Sec. 1309.407-3  Procedures.

    (a) Investigation and referral. DOC employees shall immediately 
refer any cause that might serve as the basis for suspension through the 
contracting officer to the suspending official.
    (b) Decision-making process. (1) Procedures shall afford the 
contractor, and any named affiliates, an opportunity to submit 
information and argument in opposition to the proposed suspension. This 
may be done in person, in writing or through a representative.
    (2) In actions not based upon an indictment, where the contractor's 
submission raises a genuine dispute over facts material to the proposed 
suspension and if no determination has been made, on the basis of 
Department of Justice advice, that substantial interests of the 
Government in pending or contemplated legal proceedings based on the 
same facts as the suspension would be prejudiced, the following 
procedures will be followed:
    (i) Provide the contractor an opportunity to appear with counsel, 
submit documentary evidence, present witnesses and confront any person 
the agency presents;
    (ii) A transcribed record of the proceeding will be made, unless the 
agency and contractor mutually agree to waive the requirement for a 
transcript. This transcribed record is available to the contractor at 
cost.
    (c) Notice of suspension. A notice of suspension shall be issued by 
the suspending official in accordance with FAR 9.407-3(c)(1) through 
(6).
    (d) Suspending official's decision. (1) For actions based upon an 
indictment, when there is no authentic dispute over material facts, in 
which additional proceedings to determine disputed material facts have 
been denied on the basis of Department of Justice advice, the suspending 
official's decision shall be based on all of the information in the 
administrative record plus any contractor-submitted data.
    (2)(i) When necessary, written findings of fact shall be prepared as 
to the disputed material facts. The suspending official will utilize the 
information in the written findings of fact, the data submitted by the 
contractor plus any other information in the administrative record to 
develop the decision.
    (ii) While the suspending official may refer matters involving 
disputed material facts to another official for findings of fact, the 
suspending official can disregard any such findings in whole or in part 
upon a determination that they are clearly erroneous.
    (iii) After the conclusion of proceedings with respect to disputed 
facts, the suspending official will make a decision.
    (3) The suspension may be modified or terminated by the suspending 
official. However such a decision shall be without prejudice to the 
subsequent imposition of:

[[Page 685]]

    (i) Suspension by any other agency; or
    (ii) Debarment by any agency.
    (4) The suspending official's decision shall be sent to the 
contractor and any affiliates involved, in writing, by certified mail, 
return receipt requested.
    (e) Procurement counsel shall assist and advise the suspending 
official at each stage of the decision-making process.

   Subpart 1309.5_Organizational and Consultant Conflicts of Interest



Sec. 1309.503  Waiver.



Sec. 1309.503-70  Waiver.

    (a) The need for a waiver of an organizational conflict of interest 
(OCI) may be identified by the contracting officer or by a written 
request submitted by an offeror or contractor. The contracting officer 
shall review all of the relevant facts and shall refer the matter to the 
Senior Bureau Procurement Official, who shall make a written 
recommendation to the Head of Contracting Activity whether a waiver 
should be granted to allow for a contract award or for continuation of 
an existing contract.
    (b) Criteria for Waiver of OCIs. Issuance of a waiver shall be 
limited to those situations in which:
    (1) The work to be performed under contract is vital to the agency;
    (2) There is no party other than the conflicted party that can 
perform the contract at issue; and
    (3) Contractual and/or technical review and supervision methods 
cannot be employed to mitigate the conflict.



Sec. 1309.506  Procedures.

    The contracting officer shall resolve an actual or potential OCI in 
a manner consistent with the approval or direction of the designee 
authorized in CAM 1301.70. If the responsible contracting officer is 
also the authorized designee in CAM 1301.70, the contracting officer 
must obtain approval from the Senior Bureau Procurement Official.



Sec. 1309.507  Solicitation provisions and contract clauses.



Sec. 1309.507-1  Solicitation provisions.

    (a) Insert provision 1352.209-70, Potential Organizational Conflict 
of Interest, substantially as written, in solicitations when the 
contracting officer determines there is a potential organizational 
conflict of interest.
    (b) Insert the clause with its Alternate I when the contracting 
officer determines the basic clause should not be modified.



Sec. 1309.507-2  Contract clauses.

    (a) In accordance with FAR 9.507-2, insert clause 1352.209-71, 
Limitation of Future Contracting, substantially as written, when the 
contractor's eligibility for future prime contract or subcontract awards 
shall be restricted because of services being provided as stated in FAR 
9.505-1 through 9.505-4.
    (1) Insert the basic clause when the contractor will be providing 
systems engineering and/or technical direction. (See FAR 9.505-1)
    (2) Insert the clause with its Alternate I when the contractor will 
be preparing specifications or work statements. (See FAR 9.505-2)
    (3) Insert the clause with its Alternate II when the contractor will 
be providing technical evaluation or advisory and assistance services. 
(See FAR 9.505-3)
    (4) Insert the clause with its Alternate III when the contractor 
will be obtaining access to proprietary information. (See FAR 9.505-4)
    (5) Insert the clause with its Alternate IV when the contract is a 
task order contract. The contracting officer may modify Alternate IV to 
include a list of systems for which task orders may be issued and 
indicate which organizational conflict of interest provision in 
paragraph (a)(2) of this clause shall apply.
    (6) Insert the clause with its Alternate V when the contract 
provides for delivery orders. The contracting officer shall indicate in 
each delivery order which organizational conflict of interest provision 
in paragraph (a)(2) of this clause shall apply.

[[Page 686]]

    (7) Insert the language in Alternate VI when it is necessary to have 
the restrictions of this clause included in all or some subcontracts, 
teaming arrangements, and other agreements calling for performance of 
work related to the contract.
    (b) Insert clause 1352.209-72, Restrictions against Disclosure, in 
service contracts, including architect-engineer contracts, and supply 
and construction contracts requiring a restriction on the release of 
information developed or obtained in connection with performance of the 
contract.
    (c) Insert the clause 1352.209-73, Compliance with the Laws, in all 
solicitations and contracts.
    (d) Insert the clause 1352.209-74, Organizational Conflict of 
Interest, in all solicitations and contracts.
    (e) Insert clause 1352.209-75, Title 13 and Non-Disclosure 
Requirements, in all solicitations and contracts for services where the 
contractor will have access to Title 13 data.

                    PART 1311_DESCRIBING AGENCY NEEDS

     Subpart 1311.1_Selecting and Developing Requirements Documents

Sec.

Sec. 1311.103 Market acceptance.

                    Subpart 1311.5_Liquidated Damages


Sec. 1311.501 Policy.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

     Subpart 1311.1_Selecting and Developing Requirements Documents



Sec. 1311.103  Market acceptance.

    The designee authorized as the head of the agency is set forth in 
CAM 1301.70.

                    Subpart 1311.5_Liquidated Damages



Sec. 1311.501  Policy.

    The designee authorized as the head of the agency is set forth in 
CAM 1301.70.

                PART 1312_ACQUISITION OF COMMERCIAL ITEMS

  Subpart 1312.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items

Sec.

Sec. 1312.302 Tailoring of provisions and clauses for the acquisition of 
          commercial items.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

  Subpart 1312.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 1312.302  Tailoring of provisions and clauses for the acquisition 
          of commercial items.

    The authority for approving a request for waiver to tailor a clause, 
or otherwise include any additional terms or conditions in a 
solicitation or contract in a manner that is inconsistent with customary 
commercial practice, is set forth in CAM 1301.70.

[[Page 687]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 1313_SIMPLIFIED ACQUISITION PROCEDURES

                        Subpart 1313.1_Procedures

Sec.

Sec. 1313.106 Soliciting competition, evaluation of quotations or 
          offers, award and documentation.

Sec. 1313.106-2-70 Evaluation of solicitations.

     Subpart 1313.2_Actions At or Below the Micro Purchase Threshold


Sec. 1313.201 General.

             Subpart 1313.3_Simplified Acquisitions Methods


Sec. 1313.301 Governmentwide commercial purchase card.

Sec. 1313.302 Purchase orders.

Sec. 1313.302-1-70 Non-commercial purchase orders.

Sec. 1313.302-3 Obtaining contractor acceptance and modifying purchase 
          orders.

Sec. 1313.303 Blanket purchase agreements (BPAs).

Sec. 1313.303-5 Purchases under BPAs.

Sec. 1313.305 Imprest funds and third party drafts.

Sec. 1313.305-1 General.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                        Subpart 1313.1_Procedures



Sec. 1313.106  Soliciting competition, evaluation of quotations or 
          offers, award and documentation.



Sec. 1313.106-2-70  Evaluation of solicitations.

    All solicitations using simplified acquisition procedures in FAR 
Part 13 must include provision 1352.213-70, Evaluation Utilizing 
Simplified Acquisition Procedures, or similar language setting out 
evaluation criteria.

     Subpart 1313.2_Actions At or Below the Micro Purchase Threshold



Sec. 1313.201  General.

    DOC employees, other than warranted contracting officers, must be 
delegated micro-purchase authority by the designee set forth in CAM 
1301.70 according to FAR 1.603-3(b), and must be trained pursuant to CAM 
1313.301.

             Subpart 1313.3_Simplified Acquisitions Methods



Sec. 1313.301  Governmentwide commercial purchase card.

    The Department's procedures for the use and control of the 
Governmentwide commercial purchase card are set forth in CAM 1313.301.



Sec. 1313.302  Purchase orders.



Sec. 1313.302-1-70  Non-commercial purchase orders.

    Insert provision 1352.213-71, Instructions for Submitting Quotations 
under the Simplified Acquisition Threshold--Non-Commercial, or similar 
language in all solicitations for non-commercial purchase orders under 
the simplified acquisition threshold. The contracting officer shall 
indicate whether electronic submissions of quotations will be accepted. 
Paragraph (b)(4) of provision 1352.213-71 may be tailored based on the 
evaluation factors.



Sec. 1313.302-3  Obtaining contractor acceptance and modifying purchase 
          orders.

    A contractor's written acceptance of a purchase order modification 
is required, unless the contracting officer determines otherwise.



Sec. 1313.303  Blanket Purchase Agreements (BPAs).



Sec. 1313.303-5  Purchases under BPAs.

    (a) Individual purchases shall not exceed the simplified acquisition 
threshold, subject to the following:

[[Page 688]]

    (1) The limitations for individual purchases against BPAs 
established against Federal Supply Schedule contracts shall be those set 
forth in the terms and conditions of the schedule contract.
    (2) The limitations for individual purchases for commercial item 
acquisitions against BPAs established under FAR Subpart 13.5 ``Test 
Program for Certain Commercial Items'' is the simplified acquisition 
threshold set forth in FAR Subpart 13.5.



Sec. 1313.305  Imprest funds and third party drafts.



Sec. 1313.305-1  General.

    (a) Third-party drafts. Third-party drafts are not authorized for 
use by Department of Commerce agencies.
    (b) Imprest Funds. The Imprest Fund Policy Directive, issued 
November 9, 1999, by the Department of Treasury, required that all 
Federal agencies eliminate agency use of imprest funds by October 1, 
2001, except where provided under the Imprest Fund Policy Directive. 
Requests for exceptions to the requirements of the Imprest Fund Policy 
Directive should be addressed to DOC's Director of Financial Management. 
In the case of an approved exception, DOC's procedures for using imprest 
funds can be found in the Cash Management Policies and Procedures 
Handbook, available at the Department of Commerce, Office of Financial 
Management Web site. A copy of all approved exceptions shall be 
submitted to the Senior Bureau Procurement Official.

                        PART 1314_SEALED BIDDING

                   Subpart 1314.2_Solicitation of Bids

Sec.

Sec. 1314.201 Preparation of invitation for bids.

Sec. 1314.201-7 Contract clauses.

         Subpart 1314.4_Opening of Bids and Awards of Contracts


Sec. 1314.404 Rejection of bids.

Sec. 1314.404-1 Cancellation of invitations after opening.

Sec. 1314.407 Mistakes in bids.

Sec. 1314.407-3 Other mistakes disclosed before award.

Sec. 1314.409 Information to bidders.

Sec. 1314.409-1 Award of unclassified contracts.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                   Subpart 1314.2_Solicitation of Bids



Sec. 1314.201  Preparation of invitation for bids.



Sec. 1314.201-7  Contract clauses.

    The designee authorized to waive the requirement for inclusion of 
FAR clause 52.214-27 ``Price Reduction for Defective Cost and Pricing 
Data--Modifications--Sealed Bidding'' in a contract with a foreign 
government or agency of that government is set forth in CAM 1301.70.

         Subpart 1314.4_Opening of Bids and Awards of Contracts



Sec. 1314.404  Rejection of bids.



Sec. 1314.404-1  Cancellation of invitations after opening.

    The designee authorized to make the determinations prescribed in FAR 
14.401-1(c) and (f) are set forth in CAM 1301.70.



Sec. 1314.407  Mistakes in bids.



Sec. 1314.407-3  Other mistakes disclosed before award.

    The designee authorized to make the determinations prescribed in FAR 
14.407-3(a), (b), (c) and (d) is set forth in CAM 1301.70. Concurrence 
of Procurement Counsel shall be obtained before issuance of any 
determination under this section.



Sec. 1314.409  Information to bidders.



Sec. 1314.409-1  Award of unclassified contracts.

    Requests for records shall be governed by the procedures outlined in 
DAO 205-14 and 15 CFR part 4.

[[Page 689]]

                  PART 1315_CONTRACTING BY NEGOTIATION

  Subpart 1315.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 1315.204 Contract format.

Sec. 1315.204-570 Part IV representations and instructions.

Sec. 1315.209 Solicitation provisions and contract clauses.

                     Subpart 1315.3_Source Selection


Sec. 1315.303 Responsibilities.

Sec. 1315.305 Proposal evaluation.

                     Subpart 1315.4_Contract Pricing


Sec. 1315.407 Special cost or pricing areas.

Sec. 1315.407-4 Should-cost review.

                  Subpart 1315.6_Unsolicited Proposals


Sec. 1315.602 Policy.

Sec. 1315.603 General.

Sec. 1315.604 Agency points of contact.

Sec. 1315.606 Agency procedures.

Sec. 1615.606-2 Evaluation.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

  Subpart 1315.2_Solicitation and Receipt of Proposals and Information



Sec. 1315.204  Contract format.

    The designee authorized to grant exemptions from the uniform 
contract format is set forth in CAM 1301.70.



Sec. 1315.204-570  Part IV representations and instructions.

    (a) Section L, Instructions, conditions, and notices to offerors or 
respondents. (1) The contracting officer shall insert the provision 
1352.215-70, Proposal Preparation, in all solicitations. Contracting 
officers should tailor the provision to best meet the Government's 
needs. Information requested from offerors in Volume II-Technical 
Proposal, must correspond to the evaluation factors. Contracting 
officers should not request information that will not be evaluated in 
accord with the stated technical evaluation factors. Should electronic 
submission be allowed by the CO, specific instructions must be added.
    (2) Insert a provision similar to 1352.215-71, Instructions for Oral 
Presentations, in solicitations when oral presentations will be used. 
Contracting officers shall tailor the provision to suit their 
acquisition.
    (3) The contracting officer shall insert the provision 1352.215-72, 
Inquiries, in solicitations as determined by the CO. This provision may 
be modified to satisfy the needs of specific procurements.
    (b) Section M, Evaluation factors for award. (1) The contracting 
officer shall insert provision 1352.215-73, Evaluation Quantities-
Indefinite Quantity Contract, in solicitations for indefinite quantity 
and requirements contracts, as appropriate. This provision may be 
modified to satisfy the needs of specific procurements.
    (2) The contracting officer shall insert the provision similar to 
1352.215-74, Best Value Evaluation, for competitive, best value 
procurements, tailoring the language as appropriate. If clause 1352.215-
74, Best Value Evaluation, is used, then clause 1352.215-75 Evaluation 
Criteria, must be used.
    (3) The contracting officer shall insert a provision in all 
solicitations similar to 1352.215-75, Evaluation Criteria, to specify 
evaluation criteria, tailoring the language as appropriate. If the basis 
for award is lowest price technically acceptable, this must be stated.
    (4) The contracting officer shall insert provision 1352.215-76, Cost 
or Pricing Data, in all solicitations when cost or pricing data is 
required under FAR subpart 15.4.



Sec. 1315.209  Solicitation provisions and contract clauses.

    The designee authorized to waive the examination of records by the 
Comptroller General is set forth in CAM 1301.70.

                     Subpart 1315.3_Source Selection



Sec. 1315.303  Responsibilities.

    The contracting officer is designated as the source selection 
authority for competitive negotiated acquisitions of less than 
$10,000,000. The source selection authority for large dollar competitive 
negotiated acquisitions of

[[Page 690]]

$10,000,000 or more is the head of the operating unit. The head of the 
operating unit may re-delegate the authority to a Department manager who 
is at an organizational level above the contracting officer and who has 
sufficient rank and professional experience to effectively carry out the 
functions of a source selection authority.



Sec. 1315.305  Proposal evaluation.

    At the discretion of the contracting officer, cost information may 
be provided to members of the technical evaluation team.

                     Subpart 1315.4_Contract Pricing



Sec. 1315.407  Special cost or pricing areas.



Sec. 1315.407-4  Should-cost review.

    The should-cost review report shall include all elements listed in 
FAR 15.407-4(a)(1) and be provided to the contracting officer for use in 
negotiations.

                  Subpart 1315.6_Unsolicited Proposals



Sec. 1315.602  Policy.

    In accord with FAR 16.602, the DOC encourages the submission of new 
and innovative ideas which support the DOC mission.



Sec. 1315.603  General.

    DOC will accept for review and consideration unsolicited proposals 
from any entity. DOC will not pay any costs associated with the 
preparation of unsolicited proposals. Proposals which do not meet the 
definition and applicable content and marking requirements of FAR 15.6 
will not be considered under any circumstances and will be returned to 
the submitter. Unsolicited proposals may not be submitted 
electronically.



Sec. 1315.604  Agency points of contact.

    (a) Unsolicited proposals are to be submitted to the appropriate DOC 
contracting office. Any person or entity considering the submission of 
an unsolicited proposal should first determine, based on the subject 
matter of the proposal, to which DOC operating unit the proposal 
applies. Proposers should contact the applicable operating unit 
contracting office to determine procedures for submission and to whom to 
send the proposal.
    (b) Program offices must immediately transmit any unsolicited 
proposals sent to them to their contracting office. If there is a 
question concerning which operating unit should evaluate an unsolicited 
proposal, the contracting office shall identify the proper office, in 
coordination with the Office of Acquisition Management, if necessary, 
and transmit the proposal to the applicable contracting office.



Sec. 1315.606  Agency procedures.

    (a) The operating unit contracting office is designated as the point 
of contact for receipt of unsolicited proposals. Persons within DOC 
(e.g. technical personnel) who receive unsolicited proposals shall 
forward all documents to their cognizant contracting office.
    (b) Within ten working days after receipt by the contracting office 
of an unsolicited proposal, the contracting office shall review the 
proposal and determine whether the proposal meets the content and 
marking requirements of FAR 15.6. If the proposal does not meet these 
requirements, it shall be returned to the submitter, giving the reasons 
for noncompliance.



Sec. 1315.606-2  Evaluation.

    (a) If the contracting officer determines, upon initial review, that 
the unsolicited proposal meets all criteria in FAR 15.606-1, the 
contracting officer will acknowledge receipt of the proposal, coordinate 
evaluation with the program office, and provide to the submitter an 
estimated date that evaluation of the proposal is expected to be 
completed. The contracting officer shall transmit the proposal to the 
program office for evaluation, marking it in accord with FAR 15.609(d). 
If the estimated date for completion of the evaluation cannot be met, 
the submitter should be informed in a timely manner and provided with a 
revised evaluation completion date.
    (b) The evaluating office shall not reproduce or disseminate the 
proposal to other offices without the consent of the

[[Page 691]]

contracting officer. If the evaluating office requires additional 
information from the proposer, the evaluator shall request the 
information through the contracting officer, who will contact the 
proposer. The evaluator shall not communicate directly with the 
proposer.
    (c) Evaluators shall notify the contracting officer of their 
recommendations when the evaluation is complete. Following evaluation, 
the contracting officer shall proceed in accord with FAR 15.607.

                      PART 1316_TYPES OF CONTRACTS

                 Subpart 1316.1_Selecting Contract Types

Sec.

Sec. 1316.103 Negotiating contract type.

Sec. 1316.103-70 Identifying contract type.

                  Subpart 1316.2_Fixed-Price Contracts


Sec. 1316.203 Fixed-price contracts with economic price adjustment.

Sec. 1316.203-4 Contract clauses.

Sec. 1316.206 Fixed-ceiling-price contracts with retroactive price 
          redetermination.

Sec. 1316.206-3 Limitations.

               Subpart 1316.3_Cost-Reimbursement Contracts


Sec. 1316.307 Contract clauses.

                   Subpart 1316.4_Incentive Contracts


Sec. 1316.405 Cost-reimbursement incentive contracts.

Sec. 1316.405-2 Cost-plus-award-fee contracts.

Sec. 1316.406 Contract clauses.

              Subpart 1316.5_Indefinite-Delivery Contracts


Sec. 1316.501-2-70 Task orders.

Sec. 1316.505 Ordering.

Sec. 1316.506 Solicitation provisions and contract clauses.

   Subpart 1316.6_Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 1316.601 Time-and-materials contracts.

Sec. 1316.601-70 Contract clauses.

Sec. 1316.602 Labor-hour contracts.

Sec. 1316.602-70 Contract clauses.

Sec. 1316.603 Letter contracts.

Sec. 1316.603-2 Application.

Sec. 1316.603-3 Limitations.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                 Subpart 1316.1_Selecting Contract Types



Sec. 1316.103  Negotiating contract type.



Sec. 1316.103-70  Identifying contract type.

    The type of contract shall be stated in each contract awarded.

                  Subpart 1316.2_Fixed-Price Contracts



Sec. 1316.203  Fixed-price contracts with economic price adjustment.



Sec. 1316.203-4  Contract clauses.

    Contracting officers shall use an economic price adjustment clause 
based on cost indexes of labor or material after obtaining approval for 
use of the clause from the head of the contracting office.



Sec. 1316.206  Fixed-ceiling-price contract with retroactive price 
          redetermination.



Sec. 1316.206-3  Limitations.

    The designee authorized to approve use of fixed-ceiling-price 
contracts with retroactive price redetermination is set forth in CAM 
1301.70.

               Subpart 1316.3_Cost-Reimbursement Contracts



Sec. 1316.307  Contract clauses.

    (a) Insert a clause that is substantially the same as 1352.216-70, 
Estimated and Allowable Costs, in all cost-reimbursement contracts.
    (b) Insert a clause similar to 1352.216-71, Level of Effort (Cost-
Plus-Fixed-Fee, Term Contract), in Cost-Plus-Fixed-Fee, Level of Effort 
contracts.

[[Page 692]]

                   Subpart 1316.4_Incentive Contracts



Sec. 1316.405  Cost-reimbursement incentive contracts.



Sec. 1316.405-2  Cost-plus-award-fee contracts.

    Insert clause 1352.216-72, Determination of Award Fee, in all cost-
plus-award-fee contracts.



Sec. 1316.406  Contract clauses.

    Insert a clause substantially the same as 1352.216-73, Distribution 
of Award Fee, in all cost-plus-award-fee solicitations and contracts, as 
determined by the contracting officer.

              Subpart 1316.5_Indefinite-Delivery Contracts



Sec. 1316.501-2-70  Task orders.

    Insert clause 1352.216-74, Task Orders, or a substantially similar 
clause in task order solicitations and contracts, making changes, as 
appropriate. Contracting officers are encouraged to make appropriate 
modifications to the time requirements and procedures to meet the 
Government's needs.



Sec. 1316.505  Ordering.

    The department's Task and Delivery Order Ombudsman is designated in 
CAM 1301.70.



Sec. 1316.506  Solicitation provisions and contract clauses.

    (a) Insert clause 1352.216-75, Minimum and Maximum Contract Amounts, 
in all indefinite quantity contracts, including requirements contracts, 
if feasible.
    (b) Insert a clause similar to 1352.216-76, Placement of Orders, in 
indefinite-delivery solicitations and contracts.

   Subpart 1316.6_Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 1316.601  Time-and-materials contracts.

    The designee authorized to approve a time-and-materials contract 
prior to the execution of the base period when the base period plus any 
option periods exceeds three years is set forth in CAM 1301.70.



Sec. 1316.601-70  Contract clauses.

    Insert clause 1352.216-77, Ceiling Price, in all time-and-materials 
contracts.



Sec. 1316.602  Labor-hour contracts.



Sec. 1316.602-70  Contract clauses.

    Insert clause 1352.216-77, Ceiling Price, in all labor-hour 
contracts, including, if feasible, requirements contracts.



Sec. 1316.603  Letter contracts.



Sec. 1316.603-2  Application.

    (a) With the written approval from the authorized designee in CAM 
1301.70, in extreme cases, the contracting officer may authorize an 
additional period for contract definitization.
    (b) If, after exhausting all reasonable efforts, the contracting 
officer and the contractor cannot negotiate a definitive contract 
because of failure to reach agreement as to price or fee, the 
contracting officer may determine a reasonable price or fee with 
approval from the authority designated in CAM 1301.70.



Sec. 1316.603-3  Limitations.

    The designee authorized to determine that a letter contract is 
suitable so that work can begin immediately is set forth in CAM 1301.70.

                  PART 1317_SPECIAL CONTRACTING METHODS

                  Subpart 1317.1_Multi-Year Contracting

Sec.

Sec. 1317.104 General.

Sec. 1317.105 Policy.

Sec. 1317.105-1 Uses.

Sec. 1317.108 Congressional notification.

                         Subpart 1317.2_Options


Sec. 1317.203 Solicitations.

      Subpart 1317.5_Interagency Acquisitions Under the Economy Act


Sec. 1317.502 General.

Sec. 1317.502-70 Policy.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

[[Page 693]]

                  Subpart 1317.1_Multi-Year Contracting



Sec. 1317.104  General.

    The designee authorized to modify requirements of FAR Subpart 17.1 
and FAR 52.217-2 is set forth in CAM 1301.70.



Sec. 1317.105  Policy.



Sec. 1317.105-1  Uses.

    The designee authorized to make the determination to enter into a 
multi-year contract is set forth in CAM 1301.70.



Sec. 1317.108  Congressional notification.

    Written notification to Congress shall be handled in accordance with 
the policies and procedures outlined in DAO 218-2.

                         Subpart 1317.2_Options



Sec. 1317.203  Solicitations.

    The designee authorized to limit option quantities for additional 
supplies greater than 50 percent of the initial quantity of the same 
contract line item is set forth in CAM 1301.70.

      Subpart 1317.5_Interagency Acquisitions Under the Economy Act



Sec. 1317.502  General.



Sec. 1317.502-70  Policy.

    All Interagency Acquisitions shall adhere to the policy set forth in 
CAM 1317.570.

                    PART 1318_EMERGENCY ACQUISITIONS

           Subpart 1318.2_Emergency Acquisition Flexibilities

Sec.

Sec. 1318.201 Contingency operation.

Sec. 1318.202 Defense or recovery from certain attacks.

Sec. 1318.270 Emergency acquisition flexibilities.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

           Subpart 1318.2_Emergency Acquisition Flexibilities



Sec. 1318.201  Contingency operation.

    The designee authorized to serve as the Head of the Agency under FAR 
18.201(b) and (c) is set forth in CAM 1301.70.



Sec. 1318.202  Defense or recovery from certain attacks.

    The designee authorized to serve as the Head of the Agency under FAR 
18.202(a), (b) and (c) is set forth in CAM 1301.70.



Sec. 1318.270  Emergency acquisition flexibilities.

    (a) Authorizing emergency acquisition flexibilities. The process for 
authorizing the use of emergency procurement flexibilities within the 
Department of Commerce may vary depending on the nature and type of the 
emergency situation. However, generally, if a Senior Bureau Procurement 
Official (BPO) determines that emergency acquisition flexibilities are 
required to meet contracting needs during an emergency situation, the 
BPO must obtain the Senior Procurement Executive's concurrence. In the 
event that increased warrant authority is needed, the BPO should contact 
the Senior Procurement Executive.
    (b) Continuity of Operations Plan. Each Contracting Activity shall 
have an updated Continuity of Operations Plan, in place designating 
emergency personnel with warrant levels.
    (c) Management controls. Senior BPOs must take affirmative steps to 
ensure that emergency flexibilities are used solely for requirements 
that have a clear and direct relationship to the emergency situation, 
and that appropriate management controls are established and maintained 
to support the use of the increased thresholds. The Office of 
Acquisition Management will conduct periodic reviews of transactions 
made pursuant to the expanded authorities to evaluate whether the 
transactions:
    (1) Were in support of the emergency situation;
    (2) Were made by an authorized individual;

[[Page 694]]

    (3) Were appropriately documented; and
    (4) Provided the maximum practicable opportunity for small business 
participation.

[[Page 695]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 1319_SMALL BUSINESS PROGRAMS

                         Subpart 1319.2_Policies

Sec.

Sec. 1319.201 General policy.

Sec. 1319.202 Specific policies.

Sec. 1319.202-70 Small business set-aside review form.

              Subpart 1319.5_Set-Asides for Small Business


Sec. 1319.502 Setting aside acquisitions.

Sec. 1319.502-3 Partial set-asides.

Sec. 1319.505 Rejecting Small Business Administration recommendations.

     Subpart 1319.6_Certificates of Competency and Determination of 
                             Responsibility


Sec. 1319.602 Procedures.

Sec. 1319.602-1 Referral.

        Subpart 1319.7_The Small Business Subcontracting Program


Sec. 1319.705 Responsibilities of the contracting officer under the 
          subcontracting assistance program.

Sec. 1319.705-4 Reviewing the subcontracting plan.

 Subpart 1319.8_Contracting With the Small Business Administration (the 
                              8(a) Program)


Sec. 1319.800 General.

Sec. 1319.811 Preparing the contracts.

Sec. 1319.811-3 Contract clauses.

Sec. 1319.812 Contract administration.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                        Subpart 1319.2_Policies.



Sec. 1319.201  General policy.

    (a) The DOC Office of Small and Disadvantaged Business Utilization 
(OSDBU) is headed by a Director who shall report and be responsible to 
the Deputy Secretary on matters of policy and legislative requirements.
    (b) Each Contracting Office shall appoint Small Business Specialists 
to assist the HCA in effectively implementing the small business 
programs, including achieving program goals.



Sec. 1319.202  Specific policies.

    Procurement actions valued above $100,000 will be reviewed by the 
Director, OSDBU, or designee for the purpose of making recommendations 
for solicitation/award under FAR Part 19.



Sec. 1319.202-70  Small business set-aside review form.

    Form CD 570, Small Business Set-Aside Review, shall be submitted for 
approval to the Operating Unit Counsel Small Business Specialist, and 
forwarded to the OSDBU for approval. If applicable, the Form CD 570 will 
be submitted to the SBA Procurement Center Representative (PCR) for 
review. The Form CD 570 is required for:
    (a) Procurement actions valued above $100,000;
    (b) Modifications to existing contracts that add new work valued 
over $550,000 or that increase the total contract cost to over $550,000;
    (c) Consolidation of two or more procurement requirements for goods 
and services.

              Subpart 1319.5_Set-Asides for Small Business



Sec. 1319.502  Setting aside acquisitions.



Sec. 1319.502-3  Partial set-asides.

    A partial set-aside shall not be made if there is a reasonable 
expectation that only two capable concerns (one large and one small) 
will respond with offers unless the set-aside is authorized by the 
designee set forth in CAM 1301.70.



Sec. 1319.505  Rejecting Small Business Administration recommendations.

    (a) The designee authorized to render a decision on the Small 
Business Administration's appeal of the contracting officer's decision 
is set forth in CAM 1301.70.
    (b) In response to SBA's appeal to the agency head, the designee 
authorized

[[Page 696]]

in CAM 1301.70 shall forward justification for their decision to the 
agency head.
    (c) The designee authorized in CAM 1301.70 shall reply to the SBA 
within 30 working days after receiving the appeal. The decision of the 
designee shall be final.

     Subpart 1319.6_Certificates of Competency and Determination of 
                             Responsibility



Sec. 1319.602  Procedures.



Sec. 1319.602-1  Referral.

    When the contracting officer determines that the successful small 
business offeror lacks certain elements of responsibility, the 
contracting officer will withhold award and refer the matter to the 
cognizant Small Business Administration Government Contracting Area 
Office. A copy of the referral shall be provided to the Director of the 
OSDBU.

        Subpart 1319.7_The Small Business Subcontracting Program



Sec. 1319.705  Responsibilities of the contracting officer under the 
          subcontracting assistance program.



Sec. 1319.705-4  Reviewing the subcontracting plan.

    The prime contractor's proposed subcontracting plan shall be 
reviewed by the contracting officer for adequacy, ensuring that the 
required information, goals, and assurances are included. The 
contracting officer may obtain advice and recommendations from the SBA 
procurement center representative, the contracting activity's small 
business specialist and the DOC OSDBU. The CO shall give the reviewers 
sufficient time and information to review the plan and ask questions.

 Subpart 1319.8_Contracting With the Small Business Administration (the 
                              8(a) Program)



Sec. 1319.800  General.

    (a) By Partnership Agreement between the Small Business 
Administration (SBA) and the Department of Commerce, the SBA delegated 
authority to the Senior Procurement Executive to enter into 8(a) prime 
contracts and purchase orders. To implement this authority, the Senior 
Procurement Executive has authorized a class FAR deviation to applicable 
portions of FAR Subpart 19.8 and FAR Part 52. Under the class deviation, 
the authority to enter into 8(a) prime contracts and purchase orders is 
re-delegated to contracting officers.
    (b) When awarding 8(a) contracts and purchase orders, contracting 
officers shall operate in accordance with the terms of the Partnership 
Agreement and take full advantage of the streamlined procedures in the 
agreement. Contracting officers shall review the responsibilities and 
procedures for 8(a) awards as outlined in the Partnership Agreement and 
work closely with their respective Small Business Specialists and the 
OSDBU.
    (c) The Partnership Agreement contains the procedures for submitting 
an offer letter to the appropriate SBA office. Contracting officers 
shall provide a copy of all offering letters to the OSDBU when they are 
transmitted to SBA.



Sec. 1319.811  Preparing the contracts.



Sec. 1319.811-3  Contract clauses.

    (a) The contracting officer shall insert the clause 1352.219-70, 
Section 8(a) Direct Award (Deviation), in direct contracts and purchase 
orders processed under the Partnership Agreement. The clauses at FAR 
52.219-11, Special 8(a) Contract Conditions, 52.219-12, Special 8(a) 
Subcontract Conditions, and 52.219-17, Section 8(a) Award, shall not be 
used.
    (b) The contracting officer shall insert the clause 1352.219-71, 
Notification to Delay Performance (Deviation), in solicitations and 
purchase orders issued under the Partnership Agreement.
    (c) The contracting officer shall insert the clause 1352.219-72, 
Notification of Competition Limited to Eligible 8(a) Concerns, Alternate 
III (Deviation), when the acquisition is processed under the Partnership 
Agreement.

[[Page 697]]



Sec. 1319.812  Contract administration.

    Awards under the Partnership Agreement are subject to 15 U.S.C. 
637(a)(21). These contracts shall contain the clause 1352.219-70, 
Section 8(a) Direct Award (Deviation), which requires the contractor to 
notify the SBA and the contracting officer when ownership of the firm is 
being transferred.

     PART 1322_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                   Subpart 1322.1_Basic Labor Policies

Sec.

Sec. 1322.101 Labor relations.

Sec. 1322.101-1 General.

Sec. 1322.101-3 Reporting labor disputes.

Sec. 1322.101-4 Removal of items from contractor's facilities affected 
          by work stoppages.

Sec. 1322.103 Overtime.

Sec. 1322.103-4 Approvals.

       Subpart 1322.3_Contract Work Hours and Safety Standards Act


Sec. 1322.302 Liquidated damages and overtime pay.

   Subpart 1322.4_Labor Standards for Contracts Involving Construction


Sec. 1322.404 Davis-Bacon Act wage determination.

Sec. 1322.404-6 Modification of wage determination.

Sec. 1322.406 Administration and enforcement.

Sec. 1322.406-8 Investigations.

            Subpart 1322.6_Walsh-Healey Public Contracts Act


Sec. 1322.604 Exemptions.

Sec. 1322.604-2 Regulatory exemptions.

               Subpart 1322.8_Equal Employment Opportunity


Sec. 1322.805 Procedures.

Sec. 1322.807 Exemptions.

        Subpart 1322.10_Service Contract Act of 1965, as Amended


Sec. 1322.1001 Definitions.

Subpart 1322.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans


Sec. 1322.1305 Waivers.

         Subpart 1322.14_Employment of Workers With Disabilities


Sec. 1322.1403 Waivers.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                   Subpart 1322.1_Basic Labor Policies



Sec. 1322.101  Labor relations.



Sec. 1322.101-1  General.

    The designee authorized to designate programs or requirements for 
contractors notifying the Government of actual or potential labor 
disputes is set forth in CAM 1301.70.



Sec. 1322.101-3  Reporting labor disputes.

    (a) The designee authorized to report any potential or actual labor 
disputes that may interfere with performing any contracts under its 
cognizance is designated in CAM 1301.70.
    (b) The contracting officer shall seek legal advice and assistance 
from Procurement Counsel when a potential or actual labor dispute that 
may interfere with the contract performance occurs.



Sec. 1322.101-4  Removal of items from contractors' facilities affected 
          by work stoppages.

    The contracting officer shall obtain approval from the head of the 
contracting office and seek legal advice before initiating any action in 
accordance with FAR 22.101-4.



Sec. 1322.103  Overtime.



Sec. 1322.103-4  Approvals.

    Approval of use of overtime may be granted by the approving official 
as set forth in CAM 1301.70.

       Subpart 1322.3_Contract Work Hours and Safety Standards Act



Sec. 1322.302  Liquidated damages and overtime pay.

    The designee authorized to find that the administratively determined 
liquidated damages due under FAR 22.302(a) are incorrect or that the 
contactor or subcontractor inadvertently violated the Contract Work 
Hours and

[[Page 698]]

Safety Standards Act is set forth in CAM 1301.70.

   Subpart 1322.4_Labor Standards for Contracts Involving Construction



Sec. 1322.404  Davis-Bacon Act wage determination.



Sec. 1322.404-6  Modification of wage determination.

    The designee authorized to request an extension beyond 90 days after 
bid opening from the Department of Labor Administrator, Wage and Hour 
Division is set forth in CAM 1301.70.



Sec. 1322.406  Administration and enforcement.



Sec. 1322.406-8  Investigations.

    The designee authorized to process a contracting officer's report on 
labor standards investigations is set forth in CAM 1301.70.

            Subpart 1322.6_Walsh-Healey Public Contracts Act



Sec. 1322.604  Exemptions.



Sec. 1322.604-2  Regulatory exemptions.

    The designee authorized to request that the Secretary of Labor 
exempt a contract or class of contracts from Walsh-Healey Act 
stipulations is set forth in CAM 1301.70.

               Subpart 1322.8_Equal Employment Opportunity



Sec. 1322.805  Procedures.

    The designee authorized to approve award without pre-award clearance 
is set forth in CAM 1301.70.



Sec. 1322.807  Exemptions.

    The designee authorized to exempt a contract from all or part of 
Executive Order 11246 for national security purposes is set forth in CAM 
1301.70.

        Subpart 1322.10_Service Contract Act of 1965, as Amended



Sec. 1322.1001  Definitions.

    The DOC labor advisor is the Assistant General Counsel for 
Administration/Employment & Labor Law Division.

Subpart 1322.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans



Sec. 1322.1305  Waivers.

    (a) The designee authorized to waive any requirement in FAR 22.13 if 
it is determined that the contract is essential to national security is 
set forth in CAM 1301.70.
    (b) The contracting officer must submit requests for waivers to the 
designee authorized under 1322.1305 (a). The request shall include a 
justification for the waiver and be available in electronic format.

         Subpart 1322.14_Employment of Workers With Disabilities



Sec. 1322.1403  Waivers.

    (a) The designee authorized to waive any or all terms of the clause 
at FAR 52.222-36 is set forth in CAM 1301.70.
    (b) The designee authorized, with the concurrence of the Deputy 
Assistant Secretary of Labor, to waive any requirement of FAR Subpart 
22.14 when it is determined that the contract is essential to the 
national security, is set forth in CAM 1301.70.
    (c) The contracting officer must submit requests for waivers to the 
designee authorized under 48 CFR 1322.1403 (a) and (b). The request 
shall include a justification for the waiver and be available in 
electronic format.

[[Page 699]]

  PART 1323_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

     Subpart 1323.2_Energy and Water Efficiency and Renewable Energy

Sec.

Sec. 1323.204 Procurement exemptions.

                Subpart 1323.4_Use of Recovered Materials


Sec. 1323.404 Agency affirmative procurement programs.

Sec. 1323.404-70 DOC affirmative procurement program.

                   Subpart 1323.5_Drug-Free Workplace


Sec. 1323.506 Suspension of payments, termination of contract and 
          debarment and suspension actions.

  Subpart 1323.7_Contracting for Environmentally Preferable and Energy-
                     Efficient Products and Services


Sec. 1323.705 Electronic products environmental assessment tool.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

     Subpart 1323.2_Energy and Water Efficiency and Renewable Energy



Sec. 1323.204  Procurement exemptions.

    The designee authorized to exempt the procurement of an ENERGY STAR 
or Federal Energy Management Program (FEMP)-designated product as 
described in FAR 23.203 is set forth in CAM 1301.70.

                Subpart 1323.4_Use of Recovered Materials



Sec. 1323.404  Agency affirmative procurement programs.



Sec. 1323.404-70  DOC affirmative procurement program.

    The Department of Commerce's affirmative procurement program is 
described in CAM 1323.70.

                   Subpart 1323.5_Drug-Free Workplace



Sec. 1323.506  Suspension of payments, termination of contract and 
          debarment and suspension actions.

    The designee authorized to waive a determination to suspend contract 
payments, terminate a contract for default, or debar or suspend a 
contractor for Drug-Free Workplace violations, is set forth in CAM 
1301.70. This authority may not be delegated.

  Subpart 1323.7_Contracting for Environmentally Preferable and Energy-
                     Efficient Products and Services



Sec. 1323.705  Electronic products environmental assessment tool.

    The procedures for granting exceptions to the requirement in FAR 
23.705 are set forth in CAM 1323.70.

       PART 1324_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 1324.1_Protection of Individual Privacy

Sec.

Sec. 1324.103 Procedures.

                Subpart 1324.2_Freedom of Information Act


Sec. 1324.203 Policy.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

             Subpart 1324.1_Protection of Individual Privacy



Sec. 1324.103  Procedures.

    DOC rules implementing the Privacy Act of 1974 are described in 15 
CFR Part 4.

                Subpart 1324.2_Freedom of Information Act



Sec. 1324.203  Policy.

    DOC's implementation of the Freedom of Information Act is described 
in 15 CFR part 4 and DAO 205-14.

[[Page 700]]

                      PART 1325_FOREIGN ACQUISITION

                Subpart 1325.1_Buy American Act_Supplies

Sec.

Sec. 1325.103 Exceptions.

Sec. 1325.105 Determining reasonableness of cost.

         Subpart 1325.2_Buy American Act_Construction Materials


Sec. 1325.204 Evaluating offers of foreign construction material.

       Subpart 1325.10_Additional Foreign Acquisition Regulations


Sec. 1325.1001 Waiver of right to examination of records.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                Subpart 1325.1_Buy American Act_Supplies



Sec. 1325.103  Exceptions.

    (a) The designee authorized to make a determination that domestic 
preference would be inconsistent with the public interest in a case 
where the DOC has an agreement with a foreign government providing a 
blanket exception to the Buy America Act is set forth in CAM 1301.70.
    (b)(1) The contracting officer shall submit documentation supporting 
a nonavailability determination to the DOC's representative to the 
Civilian Agency Acquisition Council (CAAC). The DOC representative shall 
forward the documentation to the CAAC for possible removal of the 
product from the product nonavailablity list at FAR 25.104.
    (2) The contracting officer shall submit documentation supporting a 
determination that nonavailabilty of an article is likely to affect 
future acquisitions to the DOC's representative to the CAAC for possible 
addition to the product nonavailability list at FAR 25.104.



Sec. 1325.105  Determining reasonableness of cost.

    The designee authorized to make a written determination that the use 
of higher evaluation factors than those in FAR 25.105(b) is appropriate 
is set forth in CAM 1301.70.

         Subpart 1325.2_Buy American Act_Construction Materials



Sec. 1325.204  Evaluating offers of foreign construction material.

    The designee authorized to specify a percentage higher than the 6 
percent that the contracting officer must add to the cost of any foreign 
construction material proposed for exception from the requirements of 
the Buy America Act is set forth in CAM 1301.70.

       Subpart 1325.10_Additional Foreign Acquisition Regulations



Sec. 1325.1001  Waiver of right to examination of records.

    The designee authorized to execute a determination and findings in 
accordance with FAR 25.1001(a)(2)(iii) set forth in CAM 1301.70.

                 PART 1326_OTHER SOCIOECONOMIC PROGRAMS

       Subpart 1326.2_Disaster or Emergency Assistance Activities

Sec.

Sec. 1326.203 Transition of work.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

       Subpart 1326.2_Disaster or Emergency Assistance Activities



Sec. 1326.203  Transition of work.

    The designee authorized to determine that transitioning response, 
relief, and/or reconstruction activity to a local firm, or firms, is not 
feasible or practicable as set forth in CAM 1301.70.

[[Page 701]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 1327_PATENTS, DATA, AND COPYRIGHTS

                  Subpart 1327.2_Patents and Copyrights

Sec.

Sec. 1327.201 Patent and copyright infringement liability.

Sec. 1327.201-2 Contract clauses.

         Subpart 1327.3_Patent Rights Under Government Contracts


Sec. 1327.303 Contract clauses.

Sec. 1327.304 Procedures.

Sec. 1327.304-4 Appeals.

Sec. 1327.305 Administration of patent rights clauses.

Sec. 1327.305-2 Administration by the Government.

              Subpart 1327.4_Rights in Data and Copyrights


Sec. 1327.404 Basic rights in data clause.

Sec. 1327.404-4 Contractor's release, publication, and use of data.

Sec. 1327.404-5 Unauthorized, omitted, or incorrect markings.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                  Subpart 1327.2_Patents and Copyrights



Sec. 1327.201  Patent and copyright infringement liability.



Sec. 1327.201-2  Contract clauses.

    The designee authorized to approve the insertion of clause 52.227-5, 
Waiver of Indemnity, in solicitations and contracts is set forth in CAM 
1301.70.

         Subpart 1327.3_Patent Rights Under Government Contracts



Sec. 1327.303  Contract clauses.

    (a) The designee authorized to determine, at contract award, that it 
would be in the national interest to sublicense foreign governments or 
international organizations pursuant to any existing or future treaty or 
agreement is set forth in CAM 1301.70.
    (b) The designee authorized to determine that restriction or 
elimination of the right to retain title to any subject invention will 
better promote the policy and objectives of chapter 18 of title 35 of 
the United States Code is set forth in CAM 1301.70.
    (c) The designee authorized to determine, at contract award, that it 
would be in the national interest to sublicense foreign governments or 
international organizations pursuant to any existing or future treaty or 
agreement is set forth in CAM 1301.70.



Sec. 1327.304  Procedures.



Sec. 1327.304-4  Appeals.

    The designee authorized to provide the contractor with a written 
statement of the basis for taking the actions described in FAR 27.304-
5(a) is set forth in CAM 1301.70.



Sec. 1327.305  Administration of patent rights clauses.



Sec. 1327.305-2  Administration by the Government.

    The contracting officer shall promptly furnish all invention 
disclosures, reports, confirmatory instruments, notices, requests, and 
other documents and information relating to patent rights clauses to the 
DOC Patent Attorney.

              Subpart 1327.4_Rights in Data and Copyrights



Sec. 1327.404  Basic rights in data clause.



Sec. 1327.404-4  Contractor's release, publication, and use of data.

    (a) Insert clause 1352.227-70, Rights in Data, Assignment of 
Copyright, in all solicitations and contracts if FAR Clause 52.227-17 
has been used in the solicitation or contract and the contracting 
officer wants the contractor to assign copyright to the Government.
    (b) In appropriate cases, the contracting officer may place 
limitations

[[Page 702]]

or restrictions on the contractor's exercise of its rights in data first 
produced in the performance of the contract, including a requirement to 
assign copyright to the Government or another party.



Sec. 1327.404-5  Unauthorized, omitted, or incorrect markings.

    The designee authorized to concur with the contracting officer's 
determination that markings are not authorized is set forth in CAM 
1301.70.

                      PART 1328_BONDS AND INSURANCE

          Subpart 1328.1_Bonds and Other Financial Protections

Sec.

Sec. 1328.101 Bid guarantees.

Sec. 1328.101-1 Policy on use.

Sec. 1328.105 Other types of bonds.

Sec. 1328.106 Administration.

Sec. 1328.106-2 Substitution of surety bonds.

Sec. 1328.106-6 Furnishing information.

          Subpart 1328.2_Sureties and Other Security for Bonds


Sec. 1328.203 Acceptability of individual sureties.

Sec. 1328.203-7 Exclusion of individual sureties.

                        Subpart 1328.3_Insurance


Sec. 1328.305 Overseas workers' compensation and war-hazard insurance.

Sec. 1328.310 Contract clause for work on a Government installation.

Sec. 1328.310-70 Solicitation provisions and contract clauses.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

          Subpart 1328.1_Bonds and Other Financial Protections



Sec. 1328.101  Bid guarantees.



Sec. 1328.101-1  Policy on use.

    The designee authorized to make a class waiver for the requirement 
to obtain a bid guarantee when a performance bond or a performance and 
payment bond is required is set forth in CAM 1301.70.



Sec. 1328.105  Other types of bonds.

    The designee authorized to approve using other types of bonds in 
connection with acquiring particular supplies or services is set forth 
in CAM 1301.70.



Sec. 1328.106  Administration.



Sec. 1328.106-2  Substitution of surety bonds.

    The designee authorized to approve substituting a new surety bond 
for the previously approved original bond is set forth in CAM 1301.70.



Sec. 1328.106-6  Furnishing information.

    When a payment bond has been provided for a contract, the designee 
authorized to furnish a certified copy of the bond and the contract to 
any person who makes a proper request is set forth in CAM 1301.70.

          Subpart 1328.2_Sureties and Other Security for Bonds



Sec. 1328.203  Acceptability of individual sureties.

    (a) Contracting officers shall obtain the opinion of the Procurement 
Counsel as to the adequacy of the documents pledging the assets of an 
individual surety prior to accepting bid guarantee and payment and 
performance bonds.
    (b) Evidence of possible criminal or fraudulent activities by an 
individual surety shall be referred to the DOC Office of Inspector 
General. Policies and procedures for the initiation and conduct of 
investigations by the Office of Inspector General are prescribed in DAO 
207-10, Inspector General Investigations.



Sec. 1328.203-7  Exclusion of individual sureties.

    The designee authorized to exclude an individual from acting as a 
surety on bonds submitted by offerors on procurements by the executive 
branch of the Federal Government is set forth in CAM 1301.70.

[[Page 703]]

                        Subpart 1328.3_Insurance



Sec. 1328.305  Overseas workers' compensation and war-hazard insurance.

    The designee authorized to recommend a waiver to the Secretary of 
Labor is set forth in CAM 1301.70.



Sec. 1328.310  Contract clause for work on a Government installation.



Sec. 1328.310-70  Solicitation provisions and contract clauses.

    (a) Insert clause 1352.228-70, Insurance Coverage, in all contracts 
when:
    (1) Government property is involved;
    (2) The contract amount is expected to be over the simplified 
acquisition threshold, and
    (3) The contract will require work on a Government installation
    (b)(1) The clause is not required in fixed-price solicitations and 
contracts if:
    (i) Only a small amount of work is required on the Government 
installation (e.g., a few brief visits per month); or
    (ii) All the work on the Government installation is to be performed 
outside the United States, its possessions and Puerto Rico.
    (2) The contracting officer may increase the dollar limits 
established in the clause when it is determined to be in the best 
interest of the Government. Prior to increasing the dollar limits the 
contracting officer shall seek the advice of Procurement Counsel.
    (c) Insert clause 1352.228-71, Deductibles Under Required Insurance 
Coverage--Cost-Reimbursement, in all cost-reimbursement contracts when 
the clause at 1352.228-70, Insurance Coverage, is used.
    (d) Insert clause 1352.228-72, Deductibles Under Required Insurance 
Coverage--Fixed Price, in all fixed-price contracts when the clause at 
1352.228-70, Insurance Coverage, is used.
    (e) Insert clauses 1352.228-73 through 1352.228-75, unless otherwise 
indicated by the specific instructions for their use below, in any 
contract for the lease of aircraft.
    (f) Insert clause 1252.228-73, Loss of or Damage to Leased Aircraft, 
in any contract for the lease of aircraft, except in the following 
circumstances:
    (1) When the hourly rental rate does not exceed $250 and the total 
rental cost for any single transaction is not in excess of $2,500:
    (2) When the cost of hull insurance does not exceed 10 percent of 
the contract rate; or
    (3) When the lessor's insurer does not grant a credit for uninsured 
hours, thereby preventing the lessor from granting the same to the 
Government.
    (g) Insert clause 1352.228-74, Fair Market Value of Aircraft, in all 
aircraft lease/rentals.
    (h) The contracting officer shall insert the clause at 1352.228-75, 
Risk and Indemnities, in any contract for the lease of aircraft when the 
Government will have exclusive use of the aircraft for a period of less 
than thirty days.
    (i) Insert clause 1352.228-76, Approval of Group Insurance Plans, in 
all cost reimbursable contracts.
    (j) The contractor shall submit the plan to the CO for approval 
under cost-reimbursement contracts, before buying insurance under a 
group insurance plan. Any change in benefits provided under an approved 
plan that can reasonably be expected to increase significantly the cost 
to the Government shall require similar approval.

                             PART 1329_TAXES

                         Subpart 1329.1_General

Sec.

Sec. 1329.101 Resolving tax problems.

                   Subpart 1329.2_Federal Excise Taxes


Sec. 1329.203 Other Federal tax exemptions.

Sec. 1329.203-70 DOC Federal tax exemption.

                  Subpart 1329.3_State and Local Taxes


Sec. 1329.303 Application of State and local taxes to government 
          contractors and subcontractors.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                         Subpart 1329.1_General



Sec. 1329.101  Resolving tax problems.

    Legal questions relating to tax issues should be referred to the 
Procurement Counsel.

[[Page 704]]

                   Subpart 1329.2_Federal Excise Taxes



Sec. 1329.203  Other Federal tax exemptions.



Sec. 1329.203-70  DOC Federal tax exemption.

    (a) The Office of Acquisition Management has obtained a permit from 
the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives enabling 
DOC and its contractors to purchase spirits (e.g., specially denatured 
spirits) tax-free for non-beverage Government use.
    (b) When purchasing spirits for non-beverage use by DOC personnel, 
the contracting officer shall attach a copy of the permit to the 
contract. Upon receipt of the spirits, the contractor shall return the 
permit to the contracting officer unless future orders are anticipated.

                  Subpart 1329.3_State and Local Taxes



Sec. 1329.303  Application of State and local taxes to government 
          contractors and subcontractors.

    The designee authorized to review a proposed designation of a 
contractor as an agent of the Government is set forth in CAM 1301.70.

           PART 1330_COST ACCOUNTING STANDARDS ADMINISTRATION

                 Subpart 1330.2_CAS Program Requirements

Sec.

Sec. 1330.201 Contract requirements.

Sec. 1330.201-5 Waiver.

Sec. 1330.202 Disclosure requirements.

Sec. 1330.202-2 Impracticality of submission.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                 Subpart 1330.2_CAS Program Requirements



Sec. 1330.201  Contract requirements.



Sec. 1330.201-5  Waiver.

    The designee authorized to waive the applicability of Cost 
Accounting Standards for a particular contract or subcontract is set 
forth in CAM 1301.70.



Sec. 1330.202  Disclosure requirements.



Sec. 1330.202-2  Impracticality of submission.

    The DOC Head of Agency for Procurement is authorized to determine 
that it is impractical to secure a Disclosure Statement, although 
submission is required, and to authorize contract award without 
obtaining the Statement.

            PART 1331_CONTRACT COST PRINCIPLES AND PROCEDURES

                      Subpart 1331.1_Applicability

Sec.

Sec. 1331.101 Objectives.

         Subpart 1331.2_Contracts With Commercial Organizations


Sec. 1331.205 Selected costs.

Sec. 1331.205-6 Compensation for personal services.

Sec. 1331.205-32 Precontract costs.

Sec. 1331.205-70 Duplication of effort.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                      Subpart 1331.1_Applicability



Sec. 1331.101  Objectives.

    The designee authorized to approve individual deviations concerning 
cost principles is set forth in CAM 1301.70.

         Subpart 1331.2_Contracts With Commercial Organizations



Sec. 1331.205  Selected costs.



Sec. 1331.205-6  Compensation for personal services.

    The designee authorized to waive cost allowability limitations under 
certain circumstances regarding compensation of foreign nationals is set 
forth in CAM 1301.70.



Sec. 1331.205-32  Precontract costs.

    If precontract costs are anticipated, pursuant to negotiations and 
in anticipation of contract award, insert clause

[[Page 705]]

1352.231-70 Precontract Costs, in the contract.



Sec. 1331.205-70  Duplication of effort.

    The Department will not pay any costs for work that is duplicative 
of costs charged against any other contract, subcontract or Government 
source. Insert clause 1352.231-71, Duplication of Effort, in all cost-
reimbursement, time and materials, and labor hour solicitations and 
contracts when applicable.

                      PART 1332_CONTRACT FINANCING

Sec.

Sec. 1332.003 Simplified acquisition procedures financing.

Sec. 1332.006 Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 1332.006-1 General.

Sec. 1332.006-3 Responsibilities.

Sec. 1332.006-4 Procedures.

Sec. 1332.006-5 Reporting.

          Subpart 1332.1_Non-Commercial Item Purchase Financing


Sec. 1332.114 Unusual contract financing.

            Subpart 1332.2_Commercial Item Purchase Financing


Sec. 1332.201 Statutory authority.

Sec. 1332.202 General.

Sec. 1332.202-1 Policy.

        Subpart 1332.4_Advance Payments for Non-Commercial Items


Sec. 1332.402 General.

Sec. 1332.404 Exclusions.

Sec. 1332.407 Interest.

             Subpart 1332.5_Progress Payments Based on Costs


Sec. 1332.501 General.

Sec. 1332.501-2 Unusual progress payments.

                     Subpart 1332.7_Contract funding


Sec. 1332.702 Policy.

Sec. 1332.702-70 Forms.

                   Subpart 1332.8_Assignment of claims


Sec. 1332.802 Conditions.

                      Subpart 1332.9_Prompt Payment


Sec. 1332.903 Responsibilities.

Sec. 1332.906 Making payments.

                Subpart 1332.11_Electronic Funds Transfer


Sec. 1332.1108 Payment by Governmentwide commercial purchase card.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.



Sec. 1332.003  Simplified acquisition procedures financing.

    Contract financing may be provided for purchases made under the 
authority of FAR Part 13. Contract financing shall be made in accordance 
with FAR Part 32.



Sec. 1332.006  Reduction or suspension of contract payments under 
          finding of fraud.



Sec. 1332.006-1  General.

    The designee authorized to exercise the responsibility to reduce or 
suspend contract payments is set forth in CAM 1301.70.



Sec. 1332.006-3  Responsibilities.

    DOC personnel shall immediately report to the Office of Inspector 
General any apparent or suspected instances where a contractor's request 
for advance, partial or progress payments is based on fraud in 
accordance with DAO 207-10, Inspector General Investigations.



Sec. 1332.006-4  Procedures.

    (a) The Agency Head as described under 1332.006-4 is set forth in 
CAM 1301.70.
    (b) The Office of Inspector General shall perform the function of 
the Remedy Coordination Official.



Sec. 1332.006-5  Reporting.

    In accordance with 41 U.S.C. 255, the head of an agency shall 
prepare a report for each fiscal year in which a recommendation has been 
received pursuant to FAR 32.006-4(a).

          Subpart 1332.1_Non-Commercial Item Purchase Financing



Sec. 1332.114  Unusual contract financing.

    The designee authorized to approve unusual contract financing 
arrangements is set forth in CAM 1301.70.

[[Page 706]]

            Subpart 1332.2_Commercial Item Purchase Financing



Sec. 1332.201  Statutory authority.

    Payment for commercial items may be made under such terms and 
conditions as the designee authorized in CAM 1301.70 determines are 
appropriate or customary in the commercial marketplace and are in the 
best interest of the United States.



Sec. 1332.202  General.



Sec. 1332.202-1  Policy.

    The designee authorized to approve unusual contract financing is set 
forth in CAM 1301.70.

        Subpart 1332.4_Advance Payments for Non-Commercial Items



Sec. 1332.402  General.

    (a) Advanced payment may be authorized for contracts, other than 
those at FAR 32.403(a) and (b), only if other types of financing are not 
reasonably available to the contractor in adequate amounts.
    (b) The designee authorized to determine when advance payment is in 
the public interest or facilitates national defense is set forth in CAM 
1301.70.



Sec. 1332.404  Exclusions.

    Advance payments may be authorized for items listed in FAR 
32.404(a).



Sec. 1332.407  Interest.

    The designee authorized to approve advance payment without interest 
is as set forth in CAM 1301.70.

             Subpart 1332.5_Progress Payments Based on Costs



Sec. 1332.501  General.



Sec. 1332.501-2  Unusual progress payments.

    The designee authorized to approve a contractor's request for 
unusual progress payments is set forth in CAM 1301.70.

                     Subpart 1332.7_Contract Funding



Sec. 1332.702  Policy.

    Contracting officers shall obtain assurances of available funds only 
from properly authorized designated certifying officers in accordance 
with Part 4, Section 1110 of the Treasury Financial Manual.



Sec. 1332.702-70  Forms.

    Contracting officers must obtain an electronic or hardcopy 
procurement request form on which the availability of adequate funds 
have been certified by a designated certifying officer. This form must 
have the name of the certifying official and the certified available 
funds, as well as the technical and other specifications of the request, 
administrative approvals, clearances, and information for processing 
payment.

                   Subpart 1332.8_Assignment of Claims



Sec. 1332.802  Conditions.

    The designee authorized to receive the written notice of assignment 
is set forth in CAM 1301.70.

                      Subpart 1332.9_Prompt Payment



Sec. 1332.903  Responsibilities.

    The designee authorized to establish Prompt Payment policies and 
procedures is set forth in CAM 1301.70.



Sec. 1332.906  Making payments.

    The designee authorized to allow invoice payments earlier than 7 
days prior to the due date as specified in the contract is set forth in 
CAM 1301.70.

                Subpart 1332.11_Electronic Funds Transfer



Sec. 1332.1108  Payment by Governmentwide commercial purchase card.

    Use of the Governmentwide commercial purchase card is subject to the 
requirements of the FAR, other internal Departmental policies, as well 
as operating unit policies and procedures related to the purchase card. 
All purchases made with the purchase card must comply with all 
procedures and

[[Page 707]]

documentation requirements that apply to the procurement action.

                PART 1333_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 1333.1_Protests

Sec.

Sec. 1333.101 Definitions.

Sec. 1333.102 General.

Sec. 1333.103 Protests to the agency.

Sec. 1333.104 Protests to GAO.

Sec. 1333.104-70 Protests to GAO and Court of Federal Claims.

                   Subpart 1333.2_Disputes and Appeals


Sec. 1333.203 Applicability.

Sec. 1333.206 Initiation of a claim.

Sec. 1333.211 Contracting officer's decision.

Sec. 1333.212 Contracting officer's duties upon appeals.

Sec. 1333.215 Contract clauses.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                         Subpart 1333.1_Protests



Sec. 1333.101  Definitions.

    Protest Decision Authority means agency officials above the level of 
the contracting officer who have been designated by the Procurement 
Executive to issue agency protest decisions under Executive Order 12979.



Sec. 1333.102  General.

    (a) Contracting officers shall promptly notify the Procurement 
Counsel, and seek legal advice upon receiving notice that a protest has 
been filed in any forum.
    (b) The designee authorized to determine that a solicitation, 
proposed award, or award under protest does not comply with the 
requirements of law or regulation, and to take the actions specified at 
FAR 33.102 (b) is set forth in CAM 1301.70. Corrective action shall only 
be taken after consultation with Procurement Counsel.



Sec. 1333.103  Protests to the agency.

    (a) Insert provision 1352.233-70, Agency Protests, in all DOC 
solicitations, except these issued by the U.S. Patent and Trademark 
Office.
    (b) All agency protest decisions shall be reviewed by Procurement 
Counsel before submission to the protester.



Sec. 1333.104  Protests to GAO.



Sec. 1333.104-70  Protests to GAO and Court of Federal Claims.

    (a) Insert clause 1352.233-71, GAO and Court of Federal Claims 
Protests, in all DOC solicitations, except those for the U.S. Patent and 
Trademark Office.
    (b) Only Procurement Counsel shall communicate with the Government 
Accountability Office (GAO), the Court of Federal Claims and the 
Department of Justice regarding applicable protests. Procurement Counsel 
shall be responsible for preparation and submission of the agency report 
to the GAO and litigation reports to the Department of Justice.
    (c) The designee authorized to authorize, on a nondelegable basis, 
the award of a contract when the agency has received notice from the GAO 
of a preaward protest filed directly with the GAO is set forth in CAM 
1301.70.
    (d) The designee authorized to authorize, on a nondelegable basis, 
contract performance notwithstanding protest after award is set forth in 
CAM 1301.70.
    (e) The designee authorized to report and explain the reasons why 
the agency has not fully implement GAO recommendations with respect to a 
protest is set forth in CAM 1301.70.

                   Subpart 1333.2_Disputes and Appeals



Sec. 1333.203  Applicability.

    The designee authorized to determine that the application of the 
Contract Disputes Act of 1978 to a contract with an international 
organization or a subsidiary body of that organization would not be in 
the public interest is set forth in CAM 1301.70.



Sec. 1333.206  Initiation of a claim.

    Contracting officers shall promptly notify Procurement Counsel and 
seek legal advice upon receiving a contractor claim.

[[Page 708]]



Sec. 1333.211  Contracting officer's decision.

    All contracting officer decisions on claims shall be reviewed by 
Procurement Counsel before submission to the contractor.



Sec. 1333.212  Contracting officer's duties upon appeals.

    Only Procurement Counsel will communicate with the Civilian Board of 
Contract Appeals or the Department of Justice regarding appeals of 
contracting officer decisions. Procurement Counsel shall be responsible 
for preparation and submission of all filings with the Board.



Sec. 1333.215  Contract clauses.

    Alternate I of FAR 52.233-1, Disputes, may be used at the discretion 
of the contracting officer.

[[Page 709]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                   PART 1334_MAJOR SYSTEM ACQUISITION

                         Subpart 1334.0_General

Sec.

Sec. 1334.003 Responsibilities.

Sec. 1334.005 General requirements.

Sec. 1334.005-6 Full production.

              Subpart 1334.2_Earned Value Management System


Sec. 1334.201 Policy.

Sec. 1334.201-70 Policy.

Sec. 1334.202 Integrated baseline reviews.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                         Subpart 1334.0_General



Sec. 1334.003  Responsibilities.

    (a) The designee authorized to carry out the responsibilities 
described under FAR 34.003 is set forth in CAM 1301.70.
    (b) Agency procedures related to major system acquisitions are set 
forth in DAO 208-3.



Sec. 1334.005  General requirements.



Sec. 1334.005-6  Full production.

    The designee authorized to reaffirm mission need and program 
objectives and grant approval to proceed with the award of a contract 
for full production of a successfully tested major system is set forth 
in CAM 1301.70.

              Subpart 1334.2_Earned Value Management System



Sec. 1334.201  Policy.



Sec. 1334.201-70  Policy.

    (a) In accordance with the Department's Information Technology 
Investment Performance Measurement and Performance Reporting Policy, the 
use of an Earned Value Management System (EVMS) is required for major 
acquisitions for information technology development in which the 
development/modernization/enhancement costs are anticipated to equal or 
exceed $25 million over the life of the acquisition. The Chief 
Information Officer may require EVMS on other acquisitions if the 
project merits special attention due to sensitivity, mission 
criticality, or risk potential.
    (b) If a project manager considers the use of an EVMS to be 
necessary for a major acquisition that does not meet the $25 million 
threshold, the project manager should conduct a cost/benefit analysis 
and consult with the OCIO on the advisability of requiring an EVMS.
    (c) Project managers, contracting officers, and contracting officer 
representatives responsible for major acquisitions requiring an EVMS 
must successfully complete an Earned Value Management course that meets 
the requirements of the OCIO.
    (d) The use of firm-fixed-price type contracts, subcontracts and 
other agreements are generally not suited to developmental efforts and 
the use of an EVMS is of limited utility under such arrangements. In the 
rare cases where a fixed-price type contract is contemplated for a 
developmental effort, the project manager and contracting officer must 
consult with the OCIO for guidance to determine whether an EVMS will be 
required.
    (e) The use of an EVMS is generally discouraged for contracts, 
subcontracts, and other agreements where the period of performance is 
less than 12 months in duration. Additionally, application of an EVMS to 
work efforts that are not discrete in nature should be considered on a 
case-by-case basis.
    (f) In cases where the nature of the work does not lend itself to 
the meaningful use of an EVMS, the OCIO may waive the EVMS requirement 
if appropriate.



Sec. 1334.202  Integrated baseline reviews.

    An Integrated Baseline Review shall be conducted when an Earned 
Value Management System is required.

             PART 1335_RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 1335.001 Definitions.

[[Page 710]]


Sec. 1335.006 Contracting methods and contract type.

Sec. 1335.014 Government property and title.

Sec. 1335.016 Broad agency announcement.

Sec. 1335.016-70 DOC procedures for the use of broad agency 
          announcements.

Sec. 1335.017 Federally funded research and development centers.

Sec. 1335.017-2 Establishing or changing an FFRDC.

Sec. 1335.017-4 Reviewing FFRDCs

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.



Sec. 1335.001  Definitions.

    Human subject means a living individual about whom an investigator 
(whether professional or student) conducting research obtains:
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.
    Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject. ``Private information'' includes information 
about behavior that occurs in a context in which an individual can 
reasonably expect that no observation or recording is taking place, and 
information which has been provided for specific purposes by an 
individual and which the individual can reasonably expect will not be 
made public (for example, a medical record). Private information must be 
individually identifiable (i.e., the identity of the subject is or may 
readily be ascertained by the investigator or associated with the 
information) in order for obtaining the information to constitute 
research involving human subjects.
    Research means a systematic investigation, including research, 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.



Sec. 1335.006  Contracting methods and contract type.

    (a) Insert provision 1352.235-70, Protection of Human Subjects, in 
all solicitations where research services under the contract might 
involve the use of human subjects. The provision is mandatory where 
human subjects may be used in performance of the award and may not be 
modified without consultation with Program Counsel.
    (b) Insert clause 1352.235-71, Protection of Human Subjects--
Exemption, in all contracts where the agency has determined based on 
documentation submitted by the offeror in response to provision 
1352.235-70, Protection of Human Subjects, that the research involving 
human subjects is exempt from the requirements of 15 CFR part 27 and 
does not require Institutional Review Board (IRB) review. The provision 
is mandatory where an appropriate agency official has determined that 
the research involving human subjects to be carried out in performance 
of the award is exempt from 15 CFR part 27, and may not be modified 
without consultation with Program Counsel.
    (c) Insert clause 1352.235-72, Protection of Human Subjects--
Institutional Approval, in all contracts where the agency has determined 
based on documentation submitted by the offeror in response to provision 
1352.235-70, Protection of Human Subjects, that the research involving 
human subjects is not exempt from the requirements of 15 CFR part 27 and 
requires review by a cognizant Institutional Review Board (IRB). The 
provision is mandatory where an appropriate Agency official has 
determined that the research involving human subjects to be carried out 
in performance of the award is not exempt from 15 CFR part 27 and 
requires review by a cognizant IRB, and may not be modified without 
consultation with Program Counsel.
    (d) Insert clause 1352.235-73, Protection of Human Subjects--After 
Initial Contract Award, in all contracts where at the time of award no 
research involving human subjects is anticipated, but where decisions 
made in the course of the research may necessitate the addition of 
research involving human subjects to the work performed. The provision 
is mandatory where it is possible

[[Page 711]]

that the use of human subjects may be required in performance of the 
award but is not anticipated at the time of award, and may not be 
modified without consultation with Program Counsel.



Sec. 1335.014  Government property and title.

    The designee authorized to determine that the policies in FAR 
35.014(b)(1)-(4) will not apply regarding title to equipment purchased 
by nonprofit institutions of higher learning and nonprofit organizations 
whose primary purpose is the conduct of scientific research is set forth 
in CAM 1301.70.



Sec. 1335.016  Broad agency announcement.



Sec. 1335.016-70  DOC procedures for the use of broad agency 
          announcements.

    Procedures for the use of broad agency announcements within the 
Department of Commerce are set forth in CAM 1335.016.



Sec. 1335.017  Federal funded research and development centers.



Sec. 1335.017-2  Establishing or changing an FFRDC.

    The designee authorized to approve the establishment of an FFRDC, or 
change its basic purpose and mission, is set forth in CAM 1301.70.



Sec. 1335.017-4  Reviewing FFRDCs.

    The designee authorized to approve the continuation or termination 
of the sponsorship of an FFRDC is set forth in CAM 1301.70.

         PART 1336_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

       Subpart 1336.2_Special Aspects of Contract for Construction

Sec.

Sec. 1336.203 Government estimate of construction costs.

Sec. 1336.270 Special requirements for ship construction.

               Subpart 1336.6_Architect-Engineer Services


Sec. 1336.602 Selection of firms for architect-engineer contracts.

Sec. 1336.602-2 Evaluation boards.

Sec. 1336.602-4 Selection authority.

Sec. 1336.602-5 Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

Sec. 1336.605 Government cost estimate for architect-engineer work.

Sec. 1336.609 Contract clauses.

Sec. 1336.609-1 Design within funding limitations.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

     Subpart 1336.2_Special Aspects of Contracting for Construction



Sec. 1336.203  Government estimate of construction costs.

    After award, the independent Government estimated price can be 
released, upon request, to those firms or individuals who submitted 
proposals.



Sec. 1336.270  Special requirements for ship construction

    See 48 CFR 1371 for special requirements for acquisition involving 
ship construction and ship repair.

               Subpart 1336.6_Architect-Engineer Services



Sec. 1336.602  Selection of firms for architect-engineer contracts.



Sec. 1336.602-2  Evaluation boards.

    Permanent and ad hoc architect-engineer evaluation boards may 
include preselection boards. When necessary, members of permanent, ad 
hoc, and preselection boards may be appointed from private practitioners 
of architecture, engineering, or related professions. Private 
practitioners may be appointed as deemed necessary by the BPO or higher 
agency official. The permanent and ad hoc evaluation boards should be 
comprised of at least a majority of government personnel.



Sec. 1336.602-4  Selection authority.

    Each contracting office shall designate the selection authority 
based on the complexity of each procurement.

[[Page 712]]



Sec. 1336.602-5  Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

    (a) In contracts not expected to exceed the simplified acquisition 
threshold, either or both of the short selection processes set out at 
FAR 36.602-5 may be used.
    (b) Each contracting office shall designate the selection authority 
based on the complexity of each procurement. The selection authority 
shall review the selection report and approve it or return it to the 
chairperson for appropriate revision.



Sec. 1336.605  Government cost estimate for architect-engineer work.

    After award, the independent Government estimated price can be 
released, upon request, to those firms or individuals who submitted 
proposals.



Sec. 1336.609  Contract clauses.



Sec. 1336.609-1  Design within funding limitations.

    The designee authorized to make the determination described at FAR 
36.609-1(c)(1) to enable exclusion of the clause at FAR 52.236-22 from 
the contract is set forth in CAM 1301.70.

                      PART 1337_SERVICE CONTRACTING

                Subpart 1337.1_Service Contracts_General

Sec.

Sec. 1337.110 Solicitation provisions and contract clauses.

Sec. 1337.110-70 Personnel security processing requirements.

Sec. 1337.110-71 Additional DOC clauses related to service contracting.

             Subpart 1337.2_Advisory and Assistance Services


Sec. 1337.204 Guidelines for determining availability of personnel.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                Subpart 1337.1_Service Contracts_General



Sec. 1337.110  Solicitation provisions and contract clauses.



Sec. 1337.110-70  Personnel security processing requirements.

    (a) CAM 1337.70 establishes procedures for personnel security 
processing for contractors performing services on or within a Department 
of Commerce facility or through an information technology (IT) system, 
as required by the Department of Commerce Security Manual and Department 
of Commerce Security Program Policy and Minimum Implementation 
Standards.
    (b) Insert clause 1352.237-70, Security Processing Requirements--
High or Moderate Risk Contracts, in all service contracts designated as 
High or Moderate risk that will be performed on a DOC facility or when 
the contractor will access a DOC IT system.
    (c) Insert clause 1352.237-71, Security Processing Requirements--Low 
Risk Contracts, in all service contracts designated as Low Risk that 
will be performed on or within a Department of Commerce facility or when 
the contractor will access a DOC IT system.
    (d) Insert clause 1352.237-72, Security Processing Requirements--
National Security Contracts, in all service contracts designated as 
National Security Contracts that will be performed on or within a 
Department of Commerce facility or when the contractor will access a DOC 
IT system.
    (e) Insert clause 1352.237-73, Foreign National Visitor and Guest 
Access to Departmental Resources, in all DOC solicitations and contracts 
for services where foreign national access to any DOC facility or DOC IT 
system is required. The language of the clause may only be modified by 
adding more restrictive agency or operating unit counsel-specific 
guidance.



Sec. 1337.110-71  Additional DOC clauses related to service contracting.

    (a) Insert a clause substantially similar to 1352.237-74, Progress 
Reports, where progress reports are required in order to make periodic 
payments based upon contract progress made, or if the

[[Page 713]]

contracting officer otherwise determines that progress reports are 
needed.
    (b) Insert a clause substantially similar to 1352.237-75, Key 
Personnel, when contract performance requires identification of 
contractor key personnel.

             Subpart 1337.2_Advisory and Assistance Services



Sec. 1337.204  Guidelines for determining availability of personnel.

    The designee authorized to make the determinations described under 
FAR 37.204 is set forth in CAM 1301.70.

             PART 1339_ACQUISITION OF INFORMATION TECHNOLOGY

                         Subpart 1339.1_General

Sec.

Sec. 1339.107 Contract clauses.

Sec. 1339.107-70 Information security.

          Subpart 1339.2_Electronic and Information Technology


Sec. 1339.270 Solicitation provisions and contract clauses.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                         Subpart 1339.1_General



Sec. 1339.107  Contract clauses.

    Insert clause 1352.239-70, Software License Addendum, in all 
contracts when the primary purpose is to purchase new software licenses 
or renew existing licenses.



Sec. 1339.107-70  Information security.

    (a) For all service acquisitions over the micro-purchase threshold, 
contracting professionals shall coordinate with the designated 
Contracting Officer Representative (COR) to complete the Information 
Security in Acquisition Checklist.
    (b) When the Information Security in Acquisition Checklist indicates 
that Clause 1352.239-73, Security Requirements for Information 
Technology Resources, is needed, contracting officers shall insert the 
clause in the solicitation and contracts. If the checklist indicates 
that the Certification and Accreditation requirement in Clause 1352.239-
73 is not required, the contracting officer shall include the statement 
``The Certification and Accreditation (C&A) requirements of Clause 
1352.239-73 do not apply, and a Security Accreditation Package is not 
required'' in the statement of work.
    (c) Contracting professionals shall insert the appropriate risk 
designation clause from CAM 1337.70 into DOC solicitations and contracts 
for services depending upon the level of contractor access privileges to 
DOC IT systems. In addition, contracting professionals shall document 
the official contract file to include the rationale for the designated 
risk level.

          Subpart 1339.2_Electronic and Information Technology



Sec. 1339.270  Solicitation provisions and contract clauses.

    (a) Insert provision substantially similar to 1352.239-71, 
Electronic and Information Technology, in solicitations for Electronic 
and Information (EIT) to which it applies.
    (b) Insert clause 1352.239-72, Security Requirements for Information 
Technology Resources, in all DOC solicitations and contracts for 
Information Technology services. The clause language may only be 
modified by adding more restrictive agency- or operating unit counsel -
specific guidance

                PART 1341_ACQUISITION OF UTILITY SERVICES

                Subpart 1341.2_Acquiring Utility Services

Sec.

Sec. 1341.201 Policy.

Sec. 1341.202 Procedures.

Sec. 1341.204 GSA areawide contracts.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                Subpart 1341.2_Acquiring Utility Services



Sec. 1341.201  Policy.

    The designee authorized to enter into a contract pursuant to 42 
U.S.C. 8287

[[Page 714]]

(regarding shared energy savings, including cogeneration) is set forth 
in CAM 1301.70.



Sec. 1341.202  Procedures.

    The designee authorized to approve a determination that a written 
contract cannot be obtained from a utility supplier refusing to execute 
a tendered contract, and that the issuance of a purchase order is not 
feasible, is set forth in CAM 1301.70.



Sec. 1341.204  GSA areawide Contracts.

    The designee authorized to determine that the use of an areawide 
contract is not advantageous to the Government is set forth in CAM 
1301.70.

[[Page 715]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 1342_CONTRACT ADMINISTRATION

                 Subpart 1342.1_Contract Audit Services

Sec.

Sec. 1342.102 Assignment of contract audit services.

Sec. 1342.102-70 Interagency contract administration and audit services.

             Subpart 1342.2_Contract Administration Services


Sec. 1342.202 Assignment of contract administration.

                  Subpart 1342.5_Postaward Orientation


Sec. 1342.503 Postaward conferences.

Sec. 1342.503-70 Notice of postaward conference.

       Subpart 1342.6_Corporate Administrative Contracting Officer


Sec. 1342.602 Assignment and location.

                   Subpart 1342.7_Indirect Cost Rates


Sec. 1342.703 General.

Sec. 1342.703-2 Certificate of indirect costs.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                 Subpart 1342.1_Contract Audit Services



Sec. 1342.102  Assignment of contract audit services.



Sec. 1342.102-70  Interagency contract administration and audit 
          services.

    (a) Generally, the final invoice shall not be approved until a 
close-out audit has been performed and all outstanding issues have been 
negotiated or resolved on the following types of contracts valued at 
$500,000 and above:
    (1) Cost-reimbursement type contracts;
    (2) The cost-reimbursement portion of fixed-price contracts;
    (3) Letter contracts which provide for reimbursement of costs;
    (4) Time-and-materials contracts; and
    (5) Labor-hour contracts.
    (b) If a close-out audit is not required, an audit may be requested 
regardless of the contract value when the contracting officer determines 
that an audit is justified under one of the following circumstances:
    (1) There is some evidence of fraud or waste;
    (2) The contractor's performance under the contract has been 
questionable;
    (3) The contractor had a high incidence of unallowable costs under a 
previous contract;
    (4) The contract is with a newly-established firm, or a firm that 
has just begun dealing with the Government.

             Subpart 1342.2_Contract Administration Services



Sec. 1342.202  Assignment of contract administration.

    The designee authorized to approve delegations of CAO functions not 
listed in FAR 42.302 is set forth in CAM 1301.70.

                  Subpart 1342.5_Postaward Orientation



Sec. 1342.503  Postaward conferences.



Sec. 1342.503-70  Notice of postaward conference.

    Insert a provision similar to 1352.242-70, Postaward Conference, in 
solicitations when the contracting officer determines that a postaward 
conference is needed.

       Subpart 1342.6_Corporate Administrative Contracting Officer



Sec. 1342.602  Assignment and location.

    The designee authorized to approve the need for a corporate 
administrative contracting officer is set forth in CAM 1301.70.

[[Page 716]]

                   Subpart 1342.7_Indirect Cost Rates



Sec. 1342.703  General.



Sec. 1342.703-2  Certificate of indirect costs.

    The designee authorized to waive the requirement for contractor 
certification of proposed final indirect cost rates is set forth in CAM 
1301.70.

            PART 1344_SUBCONTRACTING POLICIES AND PROCEDURES

         Subpart 1344.3_Contractors' Purchasing Systems Reviews

Sec.

Sec. 1344.302 Requirements.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

         Subpart 1344.3_Contractors' Purchasing Systems Reviews



Sec.Sec. 1344.302  Requirements.

    The designee authorized to lower or raise the $25 million sales 
threshold for performing a review to determine if a contractor 
purchasing system review is needed is set forth in CAM 1301.70.

                      PART 1345_GOVERNMENT PROPERTY

                         Subpart 1345.1_General

Sec.

Sec. 1345.107 Contract clauses.

Sec. 1345.107-70 Government furnished property.

          Subpart 1345.6_Reporting, Reutilization, and Disposal


Sec. 1345.604 Disposal of surplus property.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                         Subpart 1345.1_General



Sec. 1345.107  Contract clauses.



Sec. 1345.107-70  Government furnished property.

    Insert clause 1352.245-70, Government Furnished Property, when 
Government property is to be furnished to the contractor and the 
contractor will be accountable for, and have stewardship of, the 
property.

          Subpart 1345.6_Reporting, Reutilization, and Disposal



Sec.Sec. 1345.604  Disposal of surplus property.

    Surplus property shall be disposed of in accordance with procedures 
outlined in the DOC Personal Property Management Manual.

                       PART 1346_QUALITY ASSURANCE

          Subpart 1346.4_Government Contract Quality Assurance

Sec.

Sec. 1346.401 General.

                        Subpart 1346.5_Acceptance


Sec. 1346.503 Place of acceptance.

        Subpart 1346.6_Material Inspection and Receiving Reports


Sec. 1346.601 General.

                        Subpart 1346.7_Warranties


Sec. 1346.704 Authority for use of warranties.

Sec. 1346.705 Limitations.

Sec. 1346.710 Contract clauses.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

          Subpart 1346.4_Government Contract Quality Assurance



Sec. 1346.401  General.

    Agency procedures for documenting government inspection are set 
forth under Subpart 1346.6.

                        Subpart 1346.5_Acceptance



Sec. 1346.503  Place of acceptance.

    Insert a clause substantially similar to 1352.246-70, Place of 
Acceptance, in contracts and solicitations to indicate where the 
acceptance of supplies and/or services will take place.

[[Page 717]]

        Subpart 1346.6_Material Inspection and Receiving Reports



Sec. 1346.601  General.

    Each DOC operating unit shall develop instructions and procedures 
regarding material inspection and receiving reports as appropriate.

                        Subpart 1346.7_Warranties



Sec. 1346.704  Authority for use of warranties.

    Contracting officers are authorized to approve the use of 
warranties.



Sec. 1346.705  Limitations.

    Warranties in cost reimbursement contracts are authorized.



Sec. 1346.710  Contract clauses.

    The warranty clauses and alternates under FAR Subpart 46.710 may be 
used in solicitations and contracts.

                       PART 1348_VALUE ENGINEERING

                 Subpart 1348.1_Policies and Procedures

Sec.

Sec. 1348.102 Policies.

                     Subpart 1348.2_Contract Clauses


Sec. 1348.201 Clauses for supply or service contracts.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                 Subpart 1348.1_Policies and Procedures



Sec. 1348.102  Policies.

    (a) Contracting activities shall send contractor-submitted Value 
Engineering Change Proposals (VECPs) to the appropriate technical 
personnel for review.
    (b) Technical personnel shall conduct a comprehensive review of 
VECPs for technical feasibility, usefulness, and adequacy of the 
contractor's estimate of cost savings; make a written report; and 
recommend acceptance or rejection to the contracting officer.
    (c) The designee authorized to grant exemptions from value 
engineering provisions in appropriate supply, service, architect-
engineer and construction contracts is set forth in CAM 1301.70.

                     Subpart 1348.2_Contract Clauses



Sec. 1348.201  Clauses for supply or service contracts.

    The designee authorized to grant exemptions from the requirements of 
FAR Part 48 for a contract or class of contracts is set forth in CAM 
1301.70.

                   PART 1349_TERMINATION OF CONTRACTS

                    Subpart 1349.1_General Principles

Sec.

Sec. 1349.106 Fraud or other criminal conduct.

                 Subpart 1349.4_Termination for Default


Sec. 1349.402 Termination of fixed-price contracts for default.

Sec. 1349.402-3 Procedure for default.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                    Subpart 1349.1_General Principles



Sec. 1349.106  Fraud or other criminal conduct.

    If the terminating contracting officer (TCO) suspects fraud or other 
criminal conduct related to the settlement of a terminated contract, the 
TCO shall immediately discontinue negotiations and prepare a written 
report concerning the matter. The report shall be submitted to the 
Bureau Procurement Official, the Office of Inspector General, and the 
DOC suspension and debarring official. An informational copy shall be 
provided to Procurement Counsel.

                 Subpart 1349.4_Termination for Default



Sec. 1349.402  Termination of fixed-price contracts for default.



Sec. 1349.402-3  Procedure for default

    No action relating to a default termination, including issuance of a 
show

[[Page 718]]

cause letter, cure notice, or notice of default, shall be taken unless 
notice has been provided to Procurement Counsel and the Procurement 
Executive, and the action has been reviewed for legal sufficiency.

               PART 1350_EXTRAORDINARY CONTRACTUAL ACTIONS

            Subpart 1350.1_Extraordinary Contractual Actions

Sec.

Sec. 1350.102 Delegation of and limitation on exercise of authority.

Sec. 1350.102-1 Delegation of authority.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

            Subpart 1350.1_Extraordinary Contractual Actions



Sec. 1350.102  Delegation of and limitation on exercise of authority.



Sec. 1350.102-1  Delegation of authority.

    (a) The designee authorized to approve requests to obligate the 
government in excess of $55,000 under the extraordinary emergency 
authority set forth in CAM 1301.70. Such authority may not be delegated 
below the secretarial level for requests to obligate the Government in 
excess of $55,000.
    (b) The designee authorized to approve any amendment without 
consideration that increases the contract price or unit price is set 
forth in CAM 1301.70.
    (c) The designee authorized to indemnify against unusually hazardous 
or nuclear risks, including extension of such indemnification to 
subcontracts, is set forth in CAM 1301.70.

[[Page 719]]

                     SUBCHAPTER H_CLAUSES AND FORMS

         PART 1352_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 1352.000 Scope of part.

      Subpart 1352.1_Instructions for Using Provisions and Clauses


Sec. 1352.102 Incorporating provisions and clauses.

              Subpart 1352.2_Text of Provisions and Clauses


Sec. 1352.200 Scope of subpart.

Sec. 1352.201-70 Contracting officer's authority.

Sec. 1352.201-71 Ratification release.

Sec. 1352.201-72 Contracting officer's representative (COR).

Sec. 1352.208-70 Restrictions on printing and duplicating.

Sec. 1352.209-70 Potential organizational conflict of interest.

Sec. 1352.209-71 Limitation of future contracting.

Sec. 1352.209-72 Restrictions against disclosure.

Sec. 1352.209-73 Compliance with the laws.

Sec. 1352.209-74 Organizational conflict of interest.

Sec. 1352.209-75 Title 13 and non-disclosure requirements.

Sec. 1352.213-70 Evaluation utilizing simplified acquisition procedures.

Sec. 1352.213-71 Instructions for submitting quotations under the 
          simplified acquisition threshold--non-commercial.

Sec. 1352.215-70 Proposal preparation.

Sec. 1352.215-71 Instructions for oral presentations.

Sec. 1352.215-72 Inquiries.

Sec. 1352.215-73 Evaluation quantities-indefinite quantity contract.

Sec. 1352.215-74 Best value evaluation.

Sec. 1352.215-75 Evaluation criteria.

Sec. 1352.215-76 Cost or pricing data.

Sec. 1352.216-70 Estimated and allowable costs.

Sec. 1352.216-71 Level of effort (cost-plus-fixed-fee, term contract).

Sec. 1352.216-72 Determination of award fee.

Sec. 1352.216-73 Distribution of award fee.

Sec. 1352.216-74 Task orders.

Sec. 1352.216-75 Minimum and maximum contract amounts.

Sec. 1352.216-76 Placement of orders.

Sec. 1352.216-77 Ceiling price.

Sec. 1352.219-70 Section 8(a) direct award (Deviation).

Sec. 1352.219-71 Notification to delay performance (Deviation).

Sec. 1352.219-72 Notification of competition limited to eligible 8(a) 
          concerns, Alternate III (Deviation).

Sec. 1352.227-70 Rights in data, assignment of copyright.

Sec. 1352.228-70 Insurance coverage.

Sec. 1352.228-71 Deductibles under required insurance coverage--cost 
          reimbursement.

Sec. 1352.228-72 Deductibles under required insurance coverage--fixed 
          price.

Sec. 1352.228-73 Loss of or damage to leased aircraft.

Sec. 1352.228-74 Fair market value of aircraft.

Sec. 1352.228-75 Risk and indemnities.

Sec. 1352.228-76 Approval of group insurance plans.

Sec. 1352.231-70 Precontract costs.

Sec. 1352.231-71 Duplication of effort.

Sec. 1352.233-70 Agency protests.

Sec. 1352.233-71 GAO and Court of Federal Claims protests.

Sec. 1352.235-70 Protection of human subjects.

Sec. 1352.235-71 Protection of human subjects--exemption.

Sec. 1352.235-72 Protection of human subjects--institutional approval.

Sec. 1352.235-73 Research involving human subjects--after initial 
          contract award.

Sec. 1352.237-70 Security processing requirements--high or moderate risk 
          contracts.

Sec. 1352.237-71 Security processing requirements--low risk contracts.

Sec. 1352.237-72 Security processing requirements--national security 
          contracts.

Sec. 1352.237-73 Foreign national visitor and guest access to 
          departmental resources.

Sec. 1352.237-74 Progress reports.

Sec. 1352.237-75 Key personnel.

Sec. 1352.239-70 Software license addendum.

Sec. 1352.239-71 Electronic and information technology.

Sec. 1352.239-72 Security requirements for information technology 
          resources.

Sec. 1352.242-70 Postaward conference.

Sec. 1352.245-70 Government furnished property.

Sec. 1352.246-70 Place of acceptance.

Sec. 1352.270-70 Period of performance.

Sec. 1352.270-71 Pre-bid/pre-proposal conference and site visit.

Sec. 1352.271-70 Inspection and manner of doing work.

Sec. 1352.271-71 Method of payment and invoicing instructions for ship 
          repair.

Sec. 1352.271-72 Additional item requirements (AIR)--growth work.

Sec. 1352.271-73 Schedule of work.

Sec. 1352.271-74 Foreseeable cost factors pertaining to different 
          shipyard locations.

Sec. 1352.271-75 Delivery and shifting of the vessel.

Sec. 1352.271-76 Performance.

Sec. 1352.271-77 Delays.

[[Page 720]]


Sec. 1352.271-78 Minimization of delay due to Government furnished 
          property.

Sec. 1352.271-79 Liability and insurance.

Sec. 1352.271-80 Title.

Sec. 1352.271-81 Discharge of liens.

Sec. 1352.271-82 Department of Labor occupational safety and health 
          standards for ship repair.

Sec. 1352.271-83 Government review, comment, acceptance and approval.

Sec. 1352.271-84 Access to the vessel.

Sec. 1352.271-85 Documentation of requests for equitable adjustment.

Sec. 1352.271-86 Lay days.

Sec. 1352.271-87 Changes--ship repair.

Sec. 1352.271-88 Guarantees.

Sec. 1352.271-89 Temporary services.

Sec. 1352.271-90 Insurance requirements.

              Subpart 1352.3_Provisions and Clauses Matrix


Sec. 1352.301 Solicitation provisions and contract clauses (Matrix).

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.



Sec. 1352.000  Scope of part.

    This part sets forth solicitation provisions and contract clauses, 
in addition to those prescribed in FAR Part 52, for use in DOC 
acquisitions.

      Subpart 1352.1_Instructions for Using Provisions and Clauses



Sec. 1352.102  Incorporating provisions and clauses.

    As stated in the FAR, provisions and clauses should be incorporated 
by reference in solicitations and contracts to the maximum practical 
extent, rather than being incorporated in full text. Incorporation by 
reference is the listing only by title, regulatory citation, and date of 
the provision or clause. The full text of the referenced solicitation 
provision or contract clause is contained in the Code of Federal 
Regulations (CFR). FAR provisions and clauses are located at 48 CFR 
chapter 1 and CAM provisions and clauses are located at 48 CFR chapter 
13.

              Subpart 1352.2_Text of Provisions and Clauses



Sec. 1352.200  Scope of subpart.

    This subpart sets forth the text of all CAR provisions and clauses 
and provides a cross-reference to the location in the CAR that 
prescribes their use.



Sec. 1352.201-70  Contracting Officer's Authority.

    As prescribed in 48 CFR 1301.602-170, insert the following clause:

                    Contracting Officer's Authority.

    The Contracting Officer is the only person authorized to make or 
approve any changes in any of the requirements of this contract, and, 
notwithstanding any provisions contained elsewhere in this contract, the 
said authority remains solely in the Contracting Officer. In the event 
the contractor makes any changes at the direction of any person other 
than the Contracting Officer, the change will be considered to have been 
made without authority and no adjustment will be made in the contract 
terms and conditions, including price.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.201-71  Ratification release.

    As prescribed in 48 CFR 1301.602-3, insert the following clause:

                     Ratification Release (APR 2010)

    (a) The Government agrees to pay the contractor $-------- for the 
following items/services:
________________________________________________________________________
________________________________________________________________________
    (b) In consideration for the sum stated above, which is to be paid 
to the Contractor, or its assignees, the Contractor, upon payment of the 
said sum by the UNITED STATES OF AMERICA (hereinafter called the 
Government), does remise, release, and discharge the Government, its 
officers, agents, and employees of and from all liabilities, 
obligations, claims, and demands whatsoever under or arising from the 
said contract, except:
    (1) Specified claims in stated amounts or in estimated amounts where 
the amounts are not susceptible of exact statement by the Contractor, as 
follows: (or state ``None'').
    (2) Claims, together with reasonable expenses incidental thereto, 
based upon the liabilities of the Contractor to third parties arising 
out of the performance of this contract, which are not known to the 
Contractor on the date of the execution of this release and of which the 
Contractor gives notice in writing to the Contracting Officer within the 
period specified in said contract.
    (3) Claims for reimbursement of costs (other than expenses of the 
Contractor by

[[Page 721]]

reason of his indemnification of the Government against patent 
liability) including reasonable expenses incidental thereto, incurred by 
the Contractor under any provisions of the said contract relating to 
patents.
    (c) The Contractor agrees, in connection with patent matters and 
with claims which are not released as set forth above, that it will 
comply with provisions of the said contract, including without 
limitation, those provisions relating to notification to the Contracting 
Officer and relating to the defense or prosecution of litigation.
 Contractor's Signature:________________________________________________
 Date:__________________________________________________________________

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.201-72  Contracting Officer's Representative (COR).

    As prescribed in 48 CFR 1301.670-70, insert the following clause:

          Contracting Officer's Representative (COR) (APR 2010)

    (a) ---------------------- is hereby designated as the Contracting 
Officer's Representative (COR). The COR may be changed at any time by 
the Government without prior notice to the contractor by a unilateral 
modification to the contract. The COR is located at:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

 Phone Number:__________________________________________________________

 E-mail:________________________________________________________________

    (b) The responsibilities and limitations of the COR are as follows:
    (1) The COR is responsible for the technical aspects of the contract 
and serves as technical liaison with the contractor. The COR is also 
responsible for the final inspection and acceptance of all deliverables 
and such other responsibilities as may be specified in the contract.
    (2) The COR is not authorized to make any commitments or otherwise 
obligate the Government or authorize any changes which affect the 
contract price, terms or conditions. Any contractor request for changes 
shall be referred to the Contracting Officer directly or through the 
COR. No such changes shall be made without the express written prior 
authorization of the Contracting Officer. The Contracting Officer may 
designate assistant or alternate COR(s) to act for the COR by naming 
such assistant/alternate(s) in writing and transmitting a copy of such 
designation to the contractor.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.208-70  Restrictions on printing and duplicating.

    As prescribed in 48 CFR 1308.802-70, insert the following clause:

           Restrictions on Printing and Duplicating (APR 2010)

    (a) The contractor is authorized to duplicate or copy production 
units provided the requirement does not exceed 5,000 production units of 
any one page or 25,000 production units in the aggregate of multiple 
pages. Such pages may not exceed a maximum image size of 10\3/4\ by 
14\1/4\ inches. A ``production unit'' is one sheet, size 8\1/2\ x 11 
inches (215 x 280 mm), one side only, and one color ink. Production unit 
requirements are outlined in the Government Printing and Binding 
Regulations.
    (b) This clause does not preclude writing, editing, preparation of 
manuscript copy, or preparation of related illustrative material as a 
part of this contract, or administrative duplicating/copying (for 
example, necessary forms and instructional materials used by the 
contractor to respond to the terms of the contract).
    (c) Costs associated with printing, duplicating, or copying in 
excess of the limits in paragraph (a) of this clause are unallowable 
without prior written approval of the Contracting Officer. If the 
contractor has reason to believe that any activity required in 
fulfillment of the contract will necessitate any printing or substantial 
duplicating or copying, it shall immediately provide written notice to 
the Contracting Officer and request approval prior to proceeding with 
the activity. Requests will be processed by the Contracting Officer in 
accordance with FAR 8.802.
    (d) The contractor shall include in each subcontract which may 
involve a requirement for any printing, duplicating, and copying in 
excess of the limits specified in paragraph (a) of this clause, a 
provision substantially the same as this clause, including this 
paragraph (d).

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.209-70  Potential organizational conflict of interest.

    As prescribed in 48 CFR 1309.507-1(a), insert the following 
provision, modified appropriately:

[[Page 722]]

        Potential Organizational Conflict of Interest (APR 2010)

    (a) There is a potential organizational conflict of interest (see 
FAR Subpart 9.5, Organizational and Consultant Conflicts of Interest) 
due to [state the nature of the potential conflict]. Accordingly:
    (1) Restrictions are needed to ensure that (state the nature of the 
proposed restraint and the applicable time period).
    (2) As a part of the proposal, the offeror shall provide the 
Contracting Officer with complete information regarding previous or 
ongoing work that is in any way associated with the contemplated 
acquisition.
    (b) If award is made to the offeror, the resulting contract may 
include an organizational conflict of interest limitation applicable to 
subsequent Government work, at either a prime contract level, at any 
subcontract tier, or both. During evaluation of proposals, the 
Government may, after discussions with the offeror and consideration of 
ways to avoid the conflict of interest, insert a provision in the 
resulting contract that shall disqualify the offeror from further 
consideration for award of specified future contracts.
    (c) The organizational conflict of interest clause included in this 
solicitation may be modified or deleted during negotiations.
    Alternate I (Date). At the discretion of the Contracting Officer, 
substitute the following paragraph (b) for paragraphs (b) and (c) in the 
basic provision:
    (b) The organizational conflict of interest clause in this 
solicitation may not be modified or deleted.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.209-71  Limitation of future contracting.

    As prescribed in 48 CFR 1309.507-2(a), insert the following clause:

               Limitation of Future Contracting (APR 2010)

    (a) The following restrictions and definitions apply to prevent 
conflicting roles, which may bias the contractor's judgment or 
objectivity, or to preclude the contractor from obtaining an unfair 
competitive advantage in concurrent or future acquisitions.
    (1) Descriptions or definitions:
    (i) ``Contractor'' means the business entity receiving the award of 
this contract, its parents, affiliates, divisions and subsidiaries, and 
successors in interest.
    (ii) ``Development'' means all efforts towards solution of broadly 
defined problems. This may encompass research, evaluating technical 
feasibility, proof of design and test, or engineering of programs not 
yet approved for acquisition or operation.
    (iii) ``Proprietary Information'' means all information designated 
as proprietary in accordance with law and regulation, and held in 
confidence or disclosed under restriction to prevent uncontrolled 
distribution. Examples include limited or restricted data, trade 
secrets, sensitive financial information, and computer software; and may 
appear in cost and pricing data or involve classified information.
    (iv) ``System'' means the system that is the subject of this 
contract.
    (v) ``System Life'' means all phases of the system's development, 
production, or support.
    (vi) ``Systems Engineering'' means preparing specifications, 
identifying and resolving interface problems, developing test 
requirements, evaluating test data, and supervising design.
    (vii) ``Technical Direction'' means developing work statements, 
determining parameters, directing other contractors' operations, or 
resolving technical controversies.
    (2) Restrictions: The contractor shall perform systems engineering 
and/or technical direction, but will not have overall contractual 
responsibility for the system's development, integration, assembly and 
checkout, or production. The parties recognize that the contractor shall 
occupy a highly influential and responsible position in determining the 
system's basic concepts and supervising their execution by other 
contractors. The contractor's judgment and recommendations must be 
objective, impartial, and independent. To avoid the prospect of the 
contractor's judgment or recommendations being influenced by its own 
products or capabilities, it is agreed that the contractor is precluded 
for the life of the system from award of a DOC contract to supply the 
system or any of its major components, and from acting as a 
subcontractor or consultant to a DOC supplier for the system or any of 
its major components.
    Alternate I (Date). As prescribed in CFR 1309.507-2(a)(2), either 
substitute paragraph (a)(2) of the basic clause with one or both of the 
following paragraphs, or use one or both in addition to the basic 
paragraph (a)(2).
    (a)(2)(i) The contractor shall prepare and submit complete 
specifications for nondevelopmental items to be used in a competitive 
acquisition. The contractor shall not furnish these items to DOC, either 
as a prime contractor or subcontractor, for the duration of the initial 
production contract plus [insert a specific period of time or an 
expiration date].
    (ii) The contractor shall either prepare or assist in preparing a 
work statement for use in competitively acquiring the [identify the 
system or services], or provide material leading directly, predictably, 
and without delay

[[Page 723]]

to such a work statement. The contractor may not supply [identify the 
services, the system, or the major components of the system] for a 
period [state the duration of the constraint, however, the duration of 
the initial production contract shall be the minimum], as either the 
prime or subcontractor unless it becomes the sole source, has 
participated in the design or development work, or more than one 
contractor has participated in preparing the work statement.
    Alternate II (Date). As prescribed in 48 CFR 1309.507-2(a)(3), 
either substitute paragraph (a) (2) of the basic clause with the 
following paragraph, or add the following in addition to the basic 
restriction. Redesignate the paragraphs as needed if more than one 
restriction applies.
    (a)(2) The contractor shall participate in the technical evaluation 
of other contractors' proposals or products. To ensure objectivity, the 
contractor is precluded from award of any supply or service contract or 
subcontract for the system or its major components. This restriction 
shall be effective for (insert a definite period of time).
    Alternate III (Date). As prescribed in 48 CFR 1309.507-2(a)(4), add 
the following paragraph (b) to the basic clause:
    (b) The contractor may gain access to proprietary information of 
other companies during contract performance. The contractor agrees to 
enter into company-to-company agreements to protect another company's 
information from unauthorized use or disclosure for as long as it is 
considered proprietary by the other company, and to refrain from using 
the information for any purpose other than that for which it was 
furnished. For information purposes, the contractor shall furnish copies 
of these agreements to the Contracting Officer. These agreements are not 
intended to protect information which is available to the Government or 
to the contractor from other sources and information furnished 
voluntarily without restriction.
    Alternate IV (Date). As prescribed in 48 CFR 1309.507-2(a)(5), add 
the following paragraph (b) to the basic clause substantially as 
written. If Alternate III is also used, designate this paragraph (c).
    (b) The contractor agrees to accept and to complete all issued task 
orders, and to not contract with Government prime contractors or first-
tier subcontractors in such a way as to create an organizational 
conflict of interest.
    Alternate V (Date). As prescribed in 48 CRF 1309.507-2(a)(6), add 
the following paragraph (b) to the basic clause. If more than one 
Alternate is used, redesignate this paragraph accordingly.
    (b) The contractor agrees to accept and to complete issued delivery 
orders, provided that no new organizational conflicts of interest are 
created by the acceptance of such orders. The Contracting Officer shall 
identify any and all organizational conflicts of interest in each order. 
The contractor shall not contract with Government prime contractors or 
first-tier subcontractors in such a way as to create an organizational 
conflict of interest.
    Alternative VI (Date). As prescribed in 48 CFR 1309.507-2(a)(7), add 
the following paragraph (b) to the basic clause. If either Alternate III 
or IV or both are used, redesignate this paragraph accordingly.
    (b) The above restrictions shall be included in all subcontracts, 
teaming arrangements, and other agreements calling for performance of 
work which is subject to the organizational conflict of interest 
restrictions identified in this clause, unless excused in writing by the 
Contracting Officer.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.209-72  Restrictions against disclosure.

    As prescribed in 48 CFR 1309.507-2(b), insert the following clause:

               Restrictions Against Disclosure (APR 2010)

    (a) The contractor agrees, in the performance of this contract, to 
keep the information furnished by the Government or acquired/developed 
by the contractor in performance of the contract and designated by the 
Contracting Officer or Contracting Officer's Representative, in the 
strictest confidence. The contractor also agrees not to publish or 
otherwise divulge such information, in whole or in part, in any manner 
or form, nor to authorize or permit others to do so, taking such 
reasonable measures as are necessary to restrict access to such 
information while in the contractor's possession, to those employees 
needing such information to perform the work described herein, i.e., on 
a ``need to know'' basis. The contractor agrees to immediately notify 
the Contracting Officer in writing in the event that the contractor 
determines or has reason to suspect a breach of this requirement has 
occurred.
    (b) The contractor agrees that it will not disclose any information 
described in subsection (a) to any person unless prior written approval 
is obtained from the Contracting Officer. The contractor agrees to 
insert the substance of this clause in any consultant agreement or 
subcontract hereunder.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]

[[Page 724]]



Sec. 1352.209-73  Compliance with the laws.

    As prescribed in 48 CFR 1309.507-2(c), insert the following clause:

                   Compliance With the Laws (APR 2010)

    The contractor shall comply with all applicable laws, rules and 
regulations which deal with or relate to performance in accord with the 
terms of the contract.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.209-74  Organizational conflict of interest.

    As prescribed in 48 CFR 1309.507-2(d), insert the following clause:

             Organizational Conflict of Interest (APR 2010)

    (a) Purpose. The purpose of this clause is to ensure that the 
contractor and its subcontractors:
    (1) Are not biased because of their financial, contractual, 
organizational, or other interests which relate to the work under this 
contract, and
    (2) Do not obtain any unfair competitive advantage over other 
parties by virtue of their performance of this contract.
    (b) Scope. The restrictions described herein shall apply to 
performance or participation by the contractor, its parents, affiliates, 
divisions and subsidiaries, and successors in interest (hereinafter 
collectively referred to as ``contractor'') in the activities covered by 
this clause as a prime contractor, subcontractor, co-sponsor, joint 
venturer, consultant, or in any similar capacity. For the purpose of 
this clause, affiliation occurs when a business concern is controlled by 
or has the power to control another or when a third party has the power 
to control both.
    (c) Warrant and Disclosure. The warrant and disclosure requirements 
of this paragraph apply with full force to both the contractor and all 
subcontractors. The contractor warrants that, to the best of the 
contractor's knowledge and belief, there are no relevant facts or 
circumstances which would give rise to an organizational conflict of 
interest, as defined in FAR Subpart 9.5, and that the contractor has 
disclosed all relevant information regarding any actual or potential 
conflict. The contractor agrees it shall make an immediate and full 
disclosure, in writing, to the Contracting Officer of any potential or 
actual organizational conflict of interest or the existence of any facts 
that may cause a reasonably prudent person to question the contractor's 
impartiality because of the appearance or existence of bias or an unfair 
competitive advantage. Such disclosure shall include a description of 
the actions the contractor has taken or proposes to take in order to 
avoid, neutralize, or mitigate any resulting conflict of interest.
    (d) Remedies. The Contracting Officer may terminate this contract 
for convenience, in whole or in part, if the Contracting Officer deems 
such termination necessary to avoid, neutralize or mitigate an actual or 
apparent organizational conflict of interest. If the contractor fails to 
disclose facts pertaining to the existence of a potential or actual 
organizational conflict of interest or misrepresents relevant 
information to the Contracting Officer, the Government may terminate the 
contract for default, suspend or debar the contractor from Government 
contracting, or pursue such other remedies as may be permitted by law or 
this contract.
    (e) Subcontracts. The contractor shall include a clause 
substantially similar to this clause, including paragraphs (f) and (g), 
in any subcontract or consultant agreement at any tier expected to 
exceed the simplified acquisition threshold. The terms ``contract,'' 
``contractor,'' and ``Contracting Officer'' shall be appropriately 
modified to preserve the Government's rights.
    (f) Prime Contractor Responsibilities. The contractor shall obtain 
from its subcontractors or consultants the disclosure required in FAR 
Part 9.507-1, and shall determine in writing whether the interests 
disclosed present an actual, or significant potential for, an 
organizational conflict of interest. The contractor shall identify and 
avoid, neutralize, or mitigate any subcontractor organizational conflict 
prior to award of the contract to the satisfaction of the Contracting 
Officer. If the subcontractor's organizational conflict cannot be 
avoided, neutralized, or mitigated, the contractor must obtain the 
written approval of the Contracting Officer prior to entering into the 
subcontract. If the contractor becomes aware of a subcontractor's 
potential or actual organizational conflict of interest after contract 
award, the contractor agrees that the Contractor may be required to 
eliminate the subcontractor from its team, at the contractor's own risk.
    (g) Waiver. The parties recognize that this clause has potential 
effects which will survive the performance of this contract and that it 
is impossible to foresee each circumstance to which it might be applied 
in the future. Accordingly, the contractor may at any time seek a waiver 
from the Head of the Contracting Activity by submitting such waiver 
request to the Contracting Officer, including a full written description 
of the requested waiver and the reasons in support thereof.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]

[[Page 725]]



Sec. 1352.209-75  Title 13 and non-disclosure requirements.

    As prescribed in 48 CFR 1309.507-2(e), insert the following clause:

           Title 13 and Non-Disclosure Requirements (APR 2010)

    The Census Bureau's data are protected by Title 13 of the United 
States Code. The contractor may not use Title 13 data for any purpose 
other than the intended purpose for which it is supplied or obtained. 
All contractor personnel who will have access to Title 13 data must take 
an oath and complete the Census Bureau Form BC-1759 (Special Sworn 
Status) that requires nondisclosure of Title 13 data. An authorized 
Census employee or a Notary Public must administer the oath of 
nondisclosure.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.213-70  Evaluation utilizing simplified acquisition 
          procedures.

    As prescribed in 48 CFR 1313.106-2-70, insert the following 
provision:

      Evaluation Utilizing Simplified Acquisition Procedures (Date)

    The Government will issue an order resulting from this request for 
quotation to the responsible offeror whose quotation results in the best 
value to the Government, considering both price and non-price factors. 
The following factors will be used to evaluate quotations:
    [This section is to be tailored to conform to individual 
procurements. Text is provided as an example only. Stating relative 
importance of the evaluation factors is not required.]
    (1) Personnel Qualifications. The experience, education, and 
qualifications of personnel proposed to work on the contract will be 
evaluated to determine their ability to perform their proposed duties.
    (2) Technical Approach and Capability. The offeror's approach to 
performing contract requirements and its capability to successfully 
perform the contract will be evaluated.
    (3) Past Performance. The offeror's past performance on related 
contracts will be evaluated to determine, as appropriate, successful 
performance of contract requirements, quality and timeliness of delivery 
of goods and services, cost management, communications between 
contracting parties, proactive management and customer satisfaction.
    (4) Price.

                             (End of clause)



Sec. 1352.213-71  Instructions for submitting quotations under the 
          simplified acquisition threshold--non-commercial.

    As prescribed in 48 CFR 1313.302-1-70, insert the following 
provision:

Instructions for Submitting Quotations Under the Simplified Acquisition 
                    Threshold--Non-Commercial (Date)

    (a) North American Industry Classification System (NAICS) code and 
small business size standard. The NAICS code and small business size 
standard for this acquisition is --------.
    (b) Submission of quotations. Submit quotations to the office 
specified in this solicitation at or before the exact time specified in 
this solicitation. At a minimum, quotations must show--
    (1) The solicitation number;
    (2) The name, address, and telephone number of the offeror;
    (3) Acknowledgment of solicitation amendments;
    (4) A technical description showing that the offeror can supply the 
requirements in the specifications or statement of work in sufficient 
detail to allow the Government to evaluate the quotation in accordance 
with the evaluation factors stated in the solicitation.
    (5) Past performance information, when included as an evaluation 
factor, to include recent and relevant contracts for the same or similar 
items and reference information (including contract numbers, points of 
contact with telephone numbers and other relevant information).
    (6) Price and any supporting details for the price, as requested in 
the solicitation.
    (c) Offerors are responsible for submitting quotations, and any 
modifications thereto, so as to reach the Government office designated 
in the solicitation by the time specified. The offeror's initial 
quotation should contain the offeror's best terms from a price and 
technical standpoint. The Government may reject any or all quotations if 
such action is in the public interest; accept other than the lowest 
quotation; and waive informalities and minor irregularities in 
quotations received.

                             (End of clause)



Sec. 1352.215-70  Proposal preparation.

    As prescribed in 48 CFR 1315.204-570(a)(1), insert the following 
provision, tailored as applicable:

                       Proposal Preparation (Date)

    (a) General Instructions. Proposals are expected to conform to 
solicitation provisions

[[Page 726]]

and be prepared in accordance with this section. To aid in evaluation, 
the proposal shall be clearly and concisely written, neatly presented, 
indexed (cross-indexed as appropriate), and logically assembled. All 
pages of each part shall be appropriately numbered and identified with 
the name of the offeror, the date of the offer, and the solicitation 
number. Each volume shall be clearly marked by volume number and title.
    (b) Overall Arrangement of Proposal. (1) VOLUME I--BUSINESS PROPOSAL
    (i) Volume I, Business Proposal, consists of the actual offer to 
enter into a contract to perform the desired work. It also includes 
required representations, certifications, and acknowledgments, if 
applicable; justifications for noncompetitive proposed subcontracts; 
identification of technical data to be withheld; and any other required 
administrative information.
    (ii) Format and Content. Volume I, Business Proposal, shall include 
the following documents (in the order listed):
    (A) Proposal Form:
    (1) Use of the Form--The Proposal Form (Standard Form 33 or 1449), 
is to be executed fully and used as the cover sheet (or first page) of 
Volume I. Include three (3) original signed copies of the form in the 
original Volume I.
    (2) Acceptance Period--The acceptance period entered on the Proposal 
Form by the offeror shall not be less than that prescribed in the 
solicitation, which shall apply if no other period is offered.
    (3) Signature Authority--The person signing the Proposal Form must 
have the authority to commit the offeror to all of the provisions of the 
proposal, fully recognizing that the Government has the right, by terms 
of the Solicitation, to make an award without discussion if it so 
elects.
    (B) Other documentation identified in Section (A) above. The offeror 
shall submit one original of Volume I, marked as such.
    (2) VOLUME II--TECHNICAL PROPOSAL
    (i) General. (A) Volume II, technical proposal, consists of the 
offeror's proposal delineating its capabilities and how it intends to 
perform contract requirements. The Technical proposal will be evaluated 
in accord with the criteria contained in Section M.
    (B) In order that the technical proposal may be evaluated strictly 
on the merit of the material submitted, no contractual price information 
is to be included in Volume II. However, the type and quantity of labor 
and materials is to be included in the Technical Proposal, without any 
associated cost information.
    (C) The technical proposal must be typed, double-spaced, with one 
inch margins, using elite font, 12 pitch type (or equivalent) and 
printed, unreduced in size, on 8\1/2\[sec] by 11[sec] paper, not 
exceeding ---- pages, single-sided, exclusive of resumes and related 
corporate experience documentation. Any pages in excess of ---- will be 
disregarded, and will not be included in the proposal evaluation. 
Failure of the offeror to comply with the page limitations, resulting in 
the excess pages not being evaluated, shall not constitute grounds for a 
protest.
    (ii) Format and Content. Volume II, Technical Proposal, shall 
include the following contents:
    (A) Table of Contents
    (B) List of Tables and Figures
    (C) Summary of Technical Proposal
    (D) Technical Proposal
    (E) Exceptions and Deviations. These major headings may be 
subdivided or supplemented by the offeror as appropriate.
    (1) Summary. This section shall provide a summary that addresses 
each of the technical evaluation factors set out in Section M.
    (2) Technical Proposal. The offeror shall clearly address each of 
the technical evaluation criteria in Section M, and, at a minimum, cover 
each subfactor.
    (3) Exceptions and Deviations. This section shall identify and 
explain any exceptions or deviations taken to any part of the 
solicitation or conditional assumptions made with respect to the 
technical requirements of the solicitation. Offerors should note that 
taking exceptions to the Government's requirements may indicate an 
unwillingness or inability to perform the contract, and the proposal may 
be evaluated as such.
    (iii) Specific areas to be addressed:
    [This section is to be tailored to conform to the technical 
evaluation factors. Text is provided as an example. Provide instructions 
concerning what information is required in order to evaluate proposals 
in accord with the evaluation factors. Do not request information that 
is not covered in an evaluation factor.]
    Evaluation Factor 1--Technical Approach. Provide information on how 
the project is to be organized, staffed, and managed that demonstrates 
the offeror's understanding and effective management of important events 
or tasks. If applicable, the offeror shall (i) describe the facilities 
and equipment which will be used in the performance of the contract, and 
(ii) how the management and coordination of consultant and subcontractor 
efforts will be accomplished. Fully discuss how the contract 
requirements will be met and the means used to accomplish them. Merely 
repeating the contract requirements and stating that they will be 
accomplished, without discussing how the offeror will accomplish them, 
is not acceptable.
    Evaluation Factor 2--Experience. In a general fashion, describe the 
offeror's experience and qualifications to perform the contract 
requirements. Explain how the experience provides confidence that the 
offeror can perform all contract requirements.

[[Page 727]]

    Evaluation Factor 3--Key Personnel. Provide the names, titles, and a 
description of the duties of those individuals proposed as key personnel 
to be assigned to the contract. For each key person, submit a resume 
that provides information concerning their education, background, recent 
work experience, and accomplishments. Specify the approximate percentage 
of time each individual will be available for this project, and, if 
necessary, explain why the key person possesses the qualifications to 
perform the proposed position.
    Evaluation Factor 4--Past Performance. Complete the Past Performance 
Questionnaire (Attachment X) for all contracts containing requirements 
similar in scope those in the Statement of Work performed in whole or 
part over the last ---- years. References can include both Government 
and commercial contracts and subcontracts.
    The offeror shall submit one original of Volume II, marked as such, 
and -------- copies.

    (3) Volume III--Price/cost proposal
    (i) Price/Cost proposals must generally adhere to the pricing 
structure established in Section B, Schedule of Prices. The offeror 
shall submit one original of Volume III, marked as such, and -------- 
copies.

[INSERT FOR COST TYPE CONTRACTS:]
    (ii) The offeror must also submit the following detailed information 
to support its proposed costs, as applicable:
    (A) Direct Labor: Breakdown of direct labor cost by named person or 
labor category including number of labor-hours and current actual 
average hourly rates based on a work year of 2,080 hours. Indicate 
whether current rates or escalated rates are used. If escalation is 
included, state the degree (percent) and methodology. Direct labor or 
levels of effort are to be identified as labor-hours and not as a 
percentage of an individual's time. Indicate fringe benefit rate, if 
separate from indirect cost rate.
    (B) Other Direct Costs: Specify the amount proposed for duplication/
reproduction, meetings and conferences, postage, communication and any 
other applicable items. Travel, subsistence and local transportation 
shall be supported with a breakdown, which shall include: number of 
trips anticipated, number of person days, cost-per-trip-per person, 
destination(s) proposed, number of person(s) scheduled for travel, mode 
of transportation, and mileage allowances, if privately-owned vehicles 
will be used.
    (C) Materials: Cost breakdown of materials or equipment must be 
supported with the methodology used and vendor quotations supplied as 
applicable.
    (D) Consultants: If consultants are proposed, state the total 
estimated price of the services to be required and the consultant's 
quoted daily or hourly rate. Include Consulting Agreements entered into 
between consultant(s) and the offeror, or invoices submitted by 
consultant(s) for similar services previously provided to the offeror.
    (E) Subcontracts: If proposed, cost information for each 
subcontractor shall be furnished in the same format and level of detail 
as prescribed for the prime offeror. Additionally, in relation to such 
subcontracts, the offeror shall submit the following information:
    (1) A description of the items to be furnished by the subcontractor;
    (2) Identification of the proposed subcontractor and an explanation 
of why and how the proposed subcontractor was selected, including the 
extent of competition;
    (3) The proposed subcontract price and cost detail and performance/
delivery schedule; and
    (4) Identification of the type of subcontract to be used.
    (F) Indirect Rates: Offerors lacking Government-approved indirect 
cost rates must provide detailed background data indicating the cost 
elements included in the applicable pool and a statement that such 
treatment is in accordance with the company's established accounting 
practice. Offerors with established rate agreements with cognizant 
Federal agencies shall submit one copy of such agreements.
    (G) Profit: Specify the profit proposed and the rationale justifying 
the amount of profit.

[INSERT FOR FIXED-PRICE TYPE CONTRACTS:]
    (iii) Each offeror's price proposal must be based on the offeror's 
own technical proposal, the Government's specifications, and other 
contractual requirements. If the prices to be used are based on a 
published price list or catalog, the offeror shall so state, and provide 
a copy of the document with its price proposal. If the prices are to be 
based on established market prices, not otherwise published, or are 
prices applicable only to the proposed contract, the offeror shall so 
state.
    (iv) The Government expects that this contract will be awarded based 
upon adequate price competition. However, in order to determine that 
offered prices are fair and reasonable, the Government reserves the 
right to request that the offeror to provide cost breakdowns to support 
proposed prices. Information to support unit prices should include, but 
not be limited to, the following:
    (A) Salary/wage information with associated payroll expenses, for 
personnel to be used in performance of the contract;
    (B) Cost for equipment, supplies, and consumable materials;
    (C) A breakout of related support costs, such as equipment 
maintenance, rental, transportation, etc.;
    (D) Overhead costs;
    (E) General Administrative expenses; and
    (F) Profit

[[Page 728]]

                             (End of clause)



Sec. 1352.215-71  Instructions for oral presentations.

    As prescribed in 48 CFR 1315.204-570(a)(2), insert the following 
provision:

               Instructions for Oral Presentations (Date)

    The Government intends to conduct oral presentations with the 
offerors in the competitive range as part of the evaluation process.
    Oral presentations will be conducted at the following location:

[INSERT LOCATION]
    The Contracting Officer will determine the order of oral 
presentations and the schedule. The Contracting Officer will contact 
each offeror to schedule the date and time for oral presentations and 
provide detailed instructions. Once a presentation date and time are 
confirmed, rescheduling is at the discretion of the Contracting Officer.

                             (End of clause)



Sec. 1352.215-72  Inquiries.

    As prescribed in 48 CFR 1315.204-570(a)(3), insert the following 
provision:

                            Inquiries (Date)

    Offerors must submit all questions concerning this solicitation in 
writing to ----. Questions should be received no later than ---- 
calendar days after the issuance date of this solicitation. Any 
responses to questions will be made in writing, without identification 
of the questioner, and will be included in an amendment to the 
solicitation. Even if provided in other form, only the question 
responses included in the amendment to the solicitation will govern 
performance of the contract.

                             (End of clause)



Sec. 1352.215-73  Evaluation quantities--indefinite quantity contract.

    As prescribed in 48 CFR 1315.204-570(b)(1), insert the following 
provision:

       Evaluation Quantities--Indefinite Quantity Contract (Date)

    To evaluate offers for award purposes, the Government will apply the 
offeror's proposed fixed-prices/rates to the estimated quantities 
included in the solicitation (and add to this amount other direct costs, 
if applicable).

                             (End of clause)



Sec. 1352.215-74  Best value evaluation.

    As prescribed in 48 CFR 1315.204-570(b)(2), insert the following 
provision:

                      Best Value Evaluation (Date)

    (a) Award will be made to the offeror: whose offer conforms to the 
solicitation requirements; who is determined responsible in accordance 
with FAR Subpart 9.1 by possessing the financial and other capabilities 
to fulfill the requirements of the contract; and whose proposal is 
judged, by an integrated assessment of price/cost and non-price 
evaluation factors, to provide the best value to the Government in 
accordance with CAR 1352.215-75, Evaluation Criteria.
    (b) The Government intends to award [specify ``a single contract'' 
or ``multiple contracts''] in response to the solicitation. The 
Government reserves the right not to award a contract depending on the 
quality of the proposals submitted and the availability of funds.
    (c) Evaluation of Proposals.
    (1) Initial Evaluation of Proposals. All offers received will be 
evaluated in accordance with the stated evaluation factors. The 
Government reserves the right to make an award without discussions based 
solely upon initial proposals. Therefore, offerors should ensure that 
their initial proposal constitutes their best offer in terms of both 
price and the technical solution being proposed.
    If award is not made upon initial proposals, then the Contracting 
Officer will establish a competitive range comprised of the most highly 
rated proposals. If the Contracting Officer determines that the number 
of proposals that would otherwise be in the competitive range exceeds 
the number at which an efficient competition can be conducted, the 
Contracting Officer may limit the number of proposals in the competitive 
range to the greatest number that will permit an efficient competition 
among the most highly-rated proposals. Only those offerors in the 
competitive range will be offered an opportunity to participate further 
in the procurement.
    (2) Discussions/Final Proposal Revisions. The Contracting Officer 
will engage in discussions with all offerors in the competitive range in 
accordance with FAR 15.306. At the conclusion of discussions, a final 
common cut-off date for submission of final proposal revisions will be 
established. Those offerors remaining in the competitive range will be 
notified to submit Final Proposal Revisions.
    (3) Final Evaluation of Offers. A final proposal evaluation will be 
performed after receipt of Final Proposal Revisions.

[[Page 729]]

                             (End of clause)



Sec. 1352.215-75  Evaluation criteria.

    As prescribed in 48 CFR 1315.204-570(b)(2) and (3), insert the 
following provision:

                       Evaluation Criteria (Date)

    [This section is to be tailored to conform to individual 
procurements. Text is provided as an example only.]
    In determining which proposal provides the best value to the 
Government, non-price (technical) evaluation factors are [significantly 
more important/somewhat more important/approximately equal in 
importance/somewhat less important/significantly less important] than 
evaluated price.
    [Insert relative importance among the technical evaluation factors.]
    Based upon the results of the integrated assessment of the technical 
and cost/price proposals, the Government may make an award to other than 
the lowest-priced offeror or the offeror with the highest technical 
score if the source selection official determines that to do so would 
result in the best value to the Government.
    (a) Technical Evaluation Factors.
    Factor 1--TECHNICAL APPROACH. The proposal will be evaluated on how 
the offeror intends to organize, staff and manage the contract and the 
means that will be used to accomplish the contract requirements. The 
degree to which the proposal demonstrates an understanding of the 
requirements will be evaluated, as well as the offeror's planned 
management of consultants and subcontractors, if applicable.
    Factor 2--EXPERIENCE. The offeror's background, experience, and 
qualifications will be assessed to determine the likelihood that that 
offeror can successfully perform the contract requirements and the 
degree of the risk of non-performance.
    Factor 3--KEY PERSONNEL. The education, experience, and 
accomplishments of key personnel will be evaluated to determine the 
degree to which they possess the qualifications to perform their 
proposed duties under the contract.
    Factor 4--PAST PERFORMANCE. The offeror's past performance on 
related contracts will be evaluated to determine, as appropriate, 
successful performance of contract requirements, quality and timeliness 
of delivery of goods and services, effective management of 
subcontractors, cost management, level of communication between the 
contracting parties, proactive management and customer satisfaction.
    The Government reserves the right to assess the past performance of 
proposed subcontractors.
    The Government will use its discretion to determine the sources of 
past performance information used in the evaluation, and the information 
may be obtained from references provided by the offeror, the agency's 
knowledge of contractor performance, other government agencies or 
commercial entities, or past performance databases.
    If an offeror does not have a history of relevant contract 
experience, or if past performance information is not available, the 
offeror will receive a neutral past performance rating; however, an 
offeror without a history of relevant experience may receive a lowered 
rating for the experience evaluation factor.
    (b) Cost/Price Evaluation.
    (1) The proposed prices/costs will be evaluated but not scored. The 
cost evaluation will determine whether the proposed costs are realistic, 
complete, and reasonable in relation to the solicitation requirements. 
Proposed costs must be entirely compatible with the technical proposal.
    (2) The Government may use the results of cost/price realism 
analysis to adjust the offeror's proposal to a most probable cost to the 
Government. The analysis may include information from a government 
auditing agency, Government technical personnel, and other sources.

                             (End of clause)



Sec. 1352.215-76  Cost or pricing data.

    As prescribed in 48 CFR 1315.204-570(b)(4), insert the following 
provision:

                          Cost or Pricing Data

     Additional Instructions for Preparation of Cost/Price Proposals

    (a) General. In addition to the information required by CAR 
1352.215-70, the cost/price proposal must contain an explanation of the 
offeror's and proposed subcontractors' fully burdened rates, including 
direct salary rates, overhead rates, and profit; and information 
regarding other direct costs.
    (b) Specific Requirements. (1) Direct Salary Rates: The offeror 
shall list the categories of professional or technical personnel 
required to perform the Statement of Work. A brief definition of the 
education and experience requirements which qualify an employee for 
inclusion in a listed category should be provided. Further, if some 
proposed labor categories are classified by multiple grades within a 
given discipline (e.g., Architect I and II, or Senior and Junior 
Engineer), a brief explanation as to how they are differentiated shall 
be provided.
    (2) The offeror, and major subcontractors, should provide individual 
rates for key personnel. Designation of an individual as a key person is 
subject to agreement of the parties. Where no key personnel are listed, 
category average rates are appropriate. Rates should

[[Page 730]]

be provided by year for the life of the contract. If rates are 
escalated, the degree (percent) and methodology must be shown. 
Escalation increases should reflect recent experience or established 
personnel policy. Types of salary increases given--merit, cost of 
living, etc.--should be discussed.
    (3) Overhead Costs. Generally, the offeror's accounting system and 
estimating practices will determine the method used to allocate overhead 
costs. The offeror's established practices, if in accordance with 
generally accepted accounting principles, will be accepted. Proposed 
overhead rates should represent the offeror's best estimate of the rates 
to be experienced during the contract period as projected by company 
budgets or by recent experience adjusted for factors which will 
influence trends. A narrative statement outlining the offeror's policies 
and practices for accumulating overhead costs and the method used to 
compute the proposed rate or rates is required. In the case of multi-
branch firms, joint ventures or affiliates, it is expected that overhead 
costs applicable to the specific location(s) where work is to be 
performed will be proposed. Company-wide, joint venture, or affiliate 
rate averages may not be appropriate. The rates should be tailored to 
the work location(s).
    (4) Profit. (i) A fair and reasonable provision for profit cannot be 
made by simply applying a certain predetermined percentage to the total 
estimated cost. Rather, profit should be established as a percentage/
dollar amount after considering such factors as:
    (A) Degree of risk;
    (B) Nature of the work to be performed;
    (C) Joint venture responsibilities;
    (D) Extent of offeror's investment;
    (E) Subcontracting of work; and
    (F) Other criteria discussed in FAR 15.404-4.
    (ii) Separate percentage rates for profit are also required for 
major subcontractors.
    (5) Markup. The offeror may request a markup on subcontract labor. 
If it does so, it should state the percentage and provide a 
justification for that figure.
    (6) Other Direct Costs. The offeror shall briefly describe the 
following:
    (i) Travel/Subsistence costs;
    (ii) Subcontractor costs; and
    (iii) How subcontracting costs were analyzed.
    (c) Audit Reports. If the offeror or any subcontractor has been 
audited by a Government agency within the last two years, or has 
approved indirect cost rates, provide a copy of the audit report, or, if 
not available, the name, address, and telephone number of the audit 
office. Similarly, information on any Government-approved indirect cost 
rates should be provided.

                             (End of clause)



Sec. 1352.216-70  Estimated and allowable costs.

    As prescribed in 48 CFR 1316.307(a), insert the following clause:

                  Estimated and Allowable Costs (Date)

    (a) Estimated Costs. The estimated cost of this contract is $------
-- [insert total cost of contract], which consists of $-------- [insert 
amount of cost that is reimbursable] for reimbursable costs and $------
-- [insert amount of fixed fee] for fixed/incentive fee. These costs 
shall be subject to the provisions of FAR clause 52.232-20, ``Limitation 
of Cost,'' FAR clause 52.216-7, ``Allowable Cost and Payments,'' and FAR 
clause 52.216-8, ``Fixed Fee.''
    (b) Subject to Availability of Funds [Insert paragraph (b) when the 
contract is issued subject to the availability of funds].
    ``The amount of funding for this contract is $-------- [insert 
amount being funded], which consists of $-------- [insert amount of 
reimbursable costs funded] for reimbursable costs and $ -------- [insert 
amount of fixed fee funded] for Fixed/Incentive Fee. These costs shall 
be subject to the provisions of FAR 52.232-22, ``Limitations of Funds.'' 
''
    (c) Allowable Costs.
    (1) Final annual indirect cost rate(s) and the appropriate base(s) 
shall be established in accordance with FAR Subpart 42.7, in effect for 
the period covered by the indirect cost rate proposal.
    (2) Until final annual indirect cost rates are established for any 
period, the Government shall reimburse the contractor at billing rates 
established by the Contracting Officer (or cognizant Federal agency 
official) or auditor in accordance with FAR 42.704, subject to 
adjustment when the final rates are established. The established billing 
rates are currently as follows:
-------------------- [Insert billing rate]

                             (End of clause)



Sec. 1352.216-71  Level of effort (cost-plus-fixed-fee, term contract).

    As prescribed in 48 CFR 1316.307(b), insert the following clause:

       Level of Effort (Cost-Plus-Fixed-Fee, Term Contract) (Date)

    (a) In performance of the effort directed in this contract, the 
contractor shall provide the total of Direct Productive Labor Hours 
(DPLH) as specified in Part I, Section B during the term specified in 
Section --------. DPLH is defined as actual work hours exclusive of 
vacation, holidays, sick leave, and other absences.

[[Page 731]]

    (b) Only the DPLH categories indicated below shall be charged 
directly to the contract. It is estimated that the DPLH will be expended 
approximately as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                 Option period    Option period
               Labor category                   Base period    Option period I         II              III
----------------------------------------------------------------------------------------------------------------
xxxxxxxxxx..................................            xxxx             xxxx             xxxx             xxxx
xxxxxxxxxx..................................            xxxx             xxxx             xxxx             xxxx
    Total Direct Labor......................            xxxx             xxxx             xxxx             xxxx
----------------------------------------------------------------------------------------------------------------

    (c) The hours specified above are provided as estimates only. If the 
actual amount of hours incurred falls within 90% to 110% of this 
estimate, the fee shall not be adjusted.
    (d) In the event that the contractor shall be required to provide 
less than 90% of the estimated DPLH, the fixed fee of the contract shall 
be equitably adjusted by unilateral modification to the contract. The 
fixed fee adjustment shall be based solely upon the difference between 
the DPLH actually provided and 90% of the estimated DPLH, calculated as 
follows:

Adjusted Fixed Fee = (Actual DPLH/(.9 x Estimated DPLH)) x Specified 
Fixed Fee

    (e) In the event that the contractor shall be required to provide 
more than 110% of the estimated DPLH, the fixed fee of the Contract 
shall be equitably adjusted by unilateral modification to the Contract. 
The fixed fee adjustment shall be based solely upon the difference 
between the DPLH actually provided and 110% of the estimated DPLH, 
calculated as follows:

Adjusted Fixed Fee = (Actual DPLH/(1.1 x Estimated DPLH)) x Specified 
Fixed Fee

    (f) These terms and conditions do not supersede the requirements of 
either FAR clause 52.232-20 ``Limitation of Cost'' or FAR clause 52.232-
22 ``Limitation of Funds.''

                             (End of clause)



Sec. 1352.216-72  Determination of award fee.

    As prescribed in 48 CFR 1316.405-2, insert the following clause:

                    Determination of Award Fee (Date)

    Based upon the quality of its performance and the results of the 
Government's performance evaluation, the contractor may earn an award 
fee.
    (a) The total amount of award fee available under this contract is 
assigned according to the following:
    [Insert appropriate information]
    (b) A Performance Evaluation Plan shall be unilaterally established 
by the Government as part of the contract and used for the determination 
of award fees. This plan shall include the criteria that will be used to 
evaluate the contractor's performance and to determine the percentage of 
award fee (if any) available for each performance period.
    (c) The criteria contained within the Performance Evaluation Plan 
may relate to:
    (1) Quality of performance of the contract requirements;
    (2) Effective management of the contract; and
    (3) Cost controls.
    (d) The Performance Evaluation Plan may be revised unilaterally by 
the Government at any time during the period of performance, however 
unless mutually-agreed to a revision shall not affect the current 
evaluation period. Notification of such changes shall be provided to the 
contractor [insert number] calendar days prior to the start of the 
evaluation period to which the change will apply.
    (e) At the conclusion of each evaluation period, and in accordance 
with the performance evaluation plan, a determination of the amount of 
the award fee earned shall be made in writing to the contractor by the 
Government Fee Determination Official (FDO). The FDO's unilateral 
determination of the amount of award fee earned in any evaluation period 
or a determination that no fee was earned shall be conclusive.
    (f) The contractor may submit a self-evaluation of its performance 
in an evaluation period. The FDO shall consider the self-evaluation, as 
the FDO deems appropriate.
    (g) The contractor shall submit a voucher for payment of any earned 
award fee.

                             (End of clause)



Sec. 1352.216-73  Distribution of award fee.

    As prescribed in 48 CFR 1316.406, insert the following clause:

                  Distribution of Award Fee (APR 2010)

    (a) The total amount of award fee available under this contract is 
assigned according to the following:
    [Insert appropriate information]
    (b) Payment of the base fee and award fee shall be made, provided 
that after payment of 85 percent of the base fee and potential award 
fee, the Government may withhold further payment of the base fee and 
award fee until a reserve is set aside in an amount that the Government 
considers necessary to protect its interest. This reserve shall not

[[Page 732]]

exceed 15 percent of the total base fee and potential award fee.
    (c) In the event of contract termination for convenience, either in 
whole or in part, the amount of award fee available shall represent a 
prorated distribution associated with evaluation period activities or 
events as determined by the Government.
    (d) The Government will promptly make payment of any award fee upon 
submission by the contractor to the Contracting Officer's authorized 
representative of a public voucher or invoice in the amount of the total 
fee earned for the period evaluated. Payment may be made without 
executing a contract modification.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.216-74  Task orders.

    As prescribed in 48 CFR 1316.501-2-70, insert the following clause:

                         Task Orders (APR 2010)

    (a) In task order contracts, all work shall be initiated only by 
issuance of fully executed task orders issued by the Contracting 
Officer. The work to be performed under these orders must be within the 
scope of the contract. The Government is only liable for labor hours and 
costs expended under the terms and conditions of this contract to the 
extent that a fully executed task order has been issued and covers the 
required work and costs. Charges for any work not authorized shall be 
disallowed.
    (b) For each task order under the contract, the Contracting Office 
shall send a request for proposal to the contractor(s). The request will 
contain a detailed description of the tasks to be achieved, a schedule 
for completion of the task order, and deliverables to be provided by the 
contractor.
    (c) The contractor shall submit a proposal defining the technical 
approach to be taken to complete the task order, work schedule and 
proposed cost/price.
    (d) After any necessary negotiations, the contractor shall submit a 
final proposal.
    (e) Task orders will be considered fully executed upon signature of 
the Contracting Officer. The contractor shall begin work on the task 
order in accordance with the effective date of the order.
    (f) The contractor shall notify the Contracting Officer of any 
instructions or guidance given that may impact the cost, schedule or 
deliverables of the task order. A formal modification to the task order 
must be issued by the Contracting Officer before any changes can be 
made.
    (g) Task orders may be placed during the period of performance of 
the contract. Labor rates applicable to hours expended in performance of 
an order will be the contract rates that are in effect at the time the 
task order is issued.
    (h) If multiple awards are made by the Government, the CO shall 
provide each awardee a fair opportunity to be considered for each task 
order over the micro-purchase threshold unless one of the exceptions at 
FAR 16.505(b) applies.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.216-75  Minimum and maximum contract amounts.

    As prescribed in 48 CFR 1316.506(a), insert the following clause:

             Minimum and Maximum Contract Amounts (APR 2010)

    During the term of the contract, the Government shall place orders 
totaling a minimum of --------. The amount of all orders shall not 
exceed --------.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.216-76  Placement of orders.

    As prescribed in 48 CFR 1316.506(b), insert the following clause:

                     Placement of Orders (APR 2010)

    (a) The contractor shall provide goods and/or services under this 
contract only as directed in orders issued by authorized individuals. In 
accordance with FAR 16.505, each order will include:
    (1) Date of order;
    (2) Contract number and order number;
    (3) Item number and description, quantity, and unit price or 
estimated cost or fee;
    (4) Delivery or performance date;
    (5) Place of delivery or performance (including consignee);
    (6) Packaging, packing, and shipping instructions, if any;
    (7) Accounting and appropriation data;
    (8) Method of payment and payment office, if not specified in the 
contract;
    (9) Any other pertinent information.
    (b) In accordance with FAR 52.216-18, Ordering, the following 
individuals (or activities) are authorized to place orders against this 
contract:
________________________________________________________________________
________________________________________________________________________


[[Page 733]]

________________________________________________________________________
    (c) If multiple awards have been made, the contact information for 
the DOC task and delivery order ombudsman is --------.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.216-77  Ceiling price.

    As prescribed in 48 CFR 1316.601-70 and 1316.602-70, insert the 
following clause:

                        Ceiling Price (APR 2010)

    The ceiling price of this contract is $--------. The contractor 
shall not make expenditures nor incur obligations in the performance of 
this contract which exceed the ceiling price specified herein, except at 
the contractor's own risk.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.219-70  Section 8(a) direct award (Deviation).

    As prescribed in 48 CFR 1319.811-3(a), insert the following clause:

                Section 8(A) Direct Award (Dl) (APR 2010)

    (a) This contract is issued as a direct award between the 
contracting activity and the 8(a) contractor pursuant to a Partnership 
Agreement between the Small Business Administration (SBA) and the 
Department of Commerce (DOC). Accordingly, the SBA, even if not 
identified in Section A of this contract, is the prime contractor and 
retains responsibility for 8(a) certification, 8(a) eligibility 
determinations and related issues, and providing counseling and 
assistance to the 8(a) contractor under the 8(a) program. The cognizant 
SBA district office is:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

    [To be completed by the Contracting Officer at time of award]
    (b) The contracting activity is responsible for administering the 
contract and taking any action on behalf of the Government under the 
terms and conditions of the contract. However, the contracting activity 
shall give advance notice to the SBA before it issues a final notice 
terminating performance, either in whole or in part, under the contract. 
The contracting activity shall also coordinate with SBA prior to 
processing any novation agreement. The contracting activity may assign 
contract administration functions to a contract administration office.
    (c) The 8(a) contractor agrees:
    (1) To notify the Contracting Officer, simultaneously with its 
notification to SBA (as required by SBA's 8(a) regulations), when the 
owner or owners upon whom 8(a) eligibility is based plan to relinquish 
ownership or control of the concern. Consistent with 15 U.S.C. 
637(a)(21), transfer of ownership or control shall result in termination 
of the contract for convenience, unless SBA waives the requirement prior 
to the actual relinquishing of ownership or control; and
    (2) To adhere to the requirements of FAR 52.219-14, Limitations on 
Subcontracting.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.219-71  Notification to delay performance (Deviation).

    As prescribed in 48 CFR 1319.811-3(b), insert the following clause:

        Notification To Delay Performance (Deviation) (APR 2010)

    The contractor shall not begin performance under this purchase order 
until 2 working days have passed from the date of its receipt. Unless 
the contractor receives notification from the Small Business 
Administration that it is ineligible for this 8(a) award, or otherwise 
receives instructions from the Contracting Officer, performance under 
this purchase order may begin on the third working day following receipt 
of the purchase order. If a determination of ineligibility is issued 
within the 2-day period, the purchase order shall be considered 
cancelled.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.219-72  Notification of competition limited to eligible 8(a) 
          concerns, Alternate III (Deviation).

    As prescribed in 48 CFR 1319.811-3 (c), insert the following clause:

Notification of Competition Limited to Eligible 8(a) Concerns, Alternate 
                       III (Deviation) (APR 2010)

    (a) Offers are solicited only from small business concerns expressly 
certified by the Small Business Administration (SBA) for participation 
in the SBA's 8(a) Program and which meet the following criteria at the 
time of submission of offers--
    (1) The Offeror is in conformance with the 8(a) support limitation 
set forth in its approved business plan; and

[[Page 734]]

    (2) The Offeror is in conformance with the Business Activity Targets 
set forth in its approved business plan or any remedial action directed 
by the SBA.
    (b) By submission of its offer, the Offeror represents that it meets 
all of the criteria set forth in paragraph (a) of this clause.
    (c) Any award resulting from this solicitation shall be made 
directly by the Contracting Officer to the successful 8(a) offeror 
selected through the evaluation criteria set forth in this solicitation.
    (d)(1) Agreement. A small business concern submitting an offer in 
its own name shall furnish, in performing the contract, only end items 
manufactured or produced by small business concerns in the United States 
or its outlying areas. If this procurement is processed under simplified 
acquisition procedures and the total amount of this contract does not 
exceed $25,000, a small business concern may furnish the product of any 
domestic firm. This paragraph does not apply to construction or service 
contracts.
    (2) ---------------- [insert name of contractor] will notify the --
-------------- [insert name of contracting agency] Contracting Officer 
in writing immediately upon entering an agreement (either oral or 
written) to transfer all or part of its stock or other ownership 
interest to any other party.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.227-70  Rights in data, assignment of copyright.

    As prescribed in 48 CFR 1327.404-4(a), insert the following clause:

           Rights in Data, Assignment of Copyright (APR 2010)

    In accordance with 48 CFR 52.227-17, Rights in Data--Special Works, 
the contractor agrees to assign copyright to data, including reports and 
other copyrightable materials, first produced in performance of this 
contract to the United States Government, as represented by the 
Secretary of Commerce.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.228-70  Insurance coverage.

    As prescribed in 48 CFR 1328.310-70(a), insert the following clause:

                      Insurance Coverage (APR 2010)

    (a) Workers Compensation and Employer's Liability. The contractor is 
required to comply with applicable Federal and State workers' 
compensation and occupational disease statutes. If occupational diseases 
are not compensable under those statutes, they shall be covered under 
the employer's liability section of the insurance policy, except when 
contract operations are so commingled with a contractor's commercial 
operations that it would not be practical to require this coverage. 
Employer's liability coverage of at least $100,000 shall be required, 
except in states with exclusive or monopolistic funds that do not permit 
workers' compensation to be written by private carriers.
    (b) General liability. (1) The contractor shall have bodily injury 
liability insurance coverage written on the comprehensive form of policy 
of at least $500,000 per occurrence.
    (2) When special circumstances apply in accordance with FAR 28.307-
2(b), Property Damage Liability Insurance shall be required in the 
amount of $-------- [insert zero unless special circumstances apply, if 
applicable, insert dollar amount.].
    (c) Automobile liability. The contractor shall have automobile 
liability insurance written on the comprehensive form of policy. The 
policy shall provide for bodily injury and property damage liability 
covering the operation of all automobiles used in connection with 
performing the contract. Policies covering automobiles operated in the 
United States shall provide coverage of at least $200,000 per person and 
$500,000 per occurrence for bodily injury and $20,000 per occurrence for 
property damage.
    (d) Aircraft public and passenger liability. When aircraft are used 
in connection with performing the contract, the contractor shall have 
aircraft public and passenger liability insurance. Coverage shall be at 
least $200,000 per person and $500,000 per occurrence for bodily injury, 
other than passenger liability, and $200,000 per occurrence for property 
damage. Coverage for passenger liability bodily injury shall be at least 
$200,000 multiplied by the number of seats or passengers, whichever is 
greater.
    (e) Vessel liability. When contract performance involves use of 
vessels, the Contractor shall provide, vessel collision liability and 
protection and indemnity liability insurance as determined by the 
Government.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.228-71  Deductibles under required insurance coverage--cost 
          reimbursement.

    As prescribed in 48 CFR 1328.310-70(c), insert the following clause:

[[Page 735]]

 Deductibles Under Required Insurance Coverage--Cost Reimbursement (APR 
                                  2010)

    (a) The contractor is required to present evidence of the amount of 
any deductibles in its insurance coverage.
    (b) For any insurance required pursuant to 1352.228-70, Insurance 
Coverage, the contractor's deductible is not allowable as a direct or 
indirect cost under this contract. The Government is not liable, and 
cannot be invoiced, for any losses up to the minimum amounts of coverage 
required in paragraphs (a) through (d) of clause 1352.228-70. If the 
contractor obtains an insurance policy with deductibles, the contractor, 
and not the Government, is responsible for any deductible amount up to 
the minimum amounts of coverage stated.
    (c) If the contractor fails to follow all procedures stated in this 
subsection and in FAR 52.228-7(g), any amounts above the amount of the 
obtained insurance coverage which are not covered by insurance will not 
be reimbursable under the contract.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.228-72  Deductibles under required insurance coverage--fixed 
          price.

    As prescribed in 48 CFR 1328.310-70(d), insert the following clause:

  Deductibles Under Required Insurance Coverage--Fixed Price (APR 2010)

    When the Government is injured, wholly or partially as a result of 
the contractor's actions and such actions are covered by the insurance 
required by 1352.228-70, Insurance Coverage, the Government is entitled 
to recover from the contractor the full amount of any such injury 
attributable to the contractor regardless of a deductible. The 
Contracting Officer may offset the amount of recovery against any 
payment due to the contractor.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.228-73  Loss of or damage to leased aircraft

    As prescribed in 48 CFR 1328.310-70(e) and 1328.310-70(f), insert 
the following clause:

             Loss of or Damage to Leased Aircraft (APR 2010)

    (a) The Government assumes all risk of loss of, or damage (except 
normal wear and tear) to, the leased aircraft during the term of this 
lease while the aircraft is in the possession of the Government.
    (b) In the event of damage to the aircraft, the Government, at its 
option, shall make the necessary repairs with its own facilities or by 
contract, or pay the contractor the reasonable cost of repair of the 
aircraft.
    (c) In the event the aircraft is lost or damaged beyond repair, the 
Government shall pay the contractor a sum equal to the fair market value 
of the aircraft at the time of such loss or damage, which value may be 
specifically agreed to in clause 1252.228-74, Fair Market Value of 
Aircraft, less the salvage value of the aircraft. However, the 
Government may retain the damaged aircraft or dispose of it as it 
wishes. In that event, the contractor will be paid the fair market value 
of the aircraft as stated in the clause.
    (d) The contractor agrees that the contract price does not include 
any cost attributable to hull insurance or to any reserve fund it has 
established to protect its interest in the aircraft. If, in the event of 
loss or damage to the leased aircraft, the contractor receives 
compensation for such loss or damage in any form from any source, the 
amount of such compensation shall be:
    (1) Credited to the Government in determining the amount of the 
Government's liability; or
    (2) For an increment of value of the aircraft beyond the value for 
which the Government is responsible.
    (e) In the event of loss of or damage to the aircraft, the 
Government shall be subrogated to all rights of recovery by the 
contractor against third parties for such loss or damage and the 
contractor shall promptly assign such rights in writing to the 
Government.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.228-74  Fair market value of aircraft.

    As prescribed in 48 CFR 1328.310-70(e) and 48 CFR 1328.310-70(g) 
insert the following in all applicable contracts for leased aircraft:

                Fair Market Value of Aircraft (APR 2010)

    For purposes of the clause entitled ``Loss of or Damage to Leased 
Aircraft,'' it is agreed that the fair market value of the aircraft to 
be used in the performance of this contract shall be the lesser of the 
two values

[[Page 736]]

set out in paragraphs (a) and (b) of this clause:
    (a) $--------; or
    (b) If the contractor has insured the same aircraft against loss or 
destruction in connection with other operations, the amount of such 
insurance coverage on the date of the loss or damage is the maximum 
amount for which the Government may be responsible under this contract.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.228-75  Risk and indemnities.

    As prescribed in 48 CFR 1328.310-70(e) and 48 CFR 1328.310-70(h), 
insert the following in all applicable contracts for leased aircraft:

                     Risk and Indemnities (APR 2010)

    The contractor hereby agrees to indemnify and hold harmless the 
Government, its officers and employees from and against all claims, 
demands, damages, liabilities, losses, suits and judgments (including 
all costs and expenses incident thereto) which may be suffered by, 
accrue against, be charged to or recoverable from the Government, its 
officers and employees by reason of injury to or death of any person 
other than officers, agents, or employees of the Government or by reason 
of damage to property of others of whatsoever kind (other than the 
property of the Government, its officers, agents or employees) arising 
out of the operation of the aircraft. In the event the contractor holds 
or obtains insurance in support of this covenant, evidence of insurance 
shall be delivered to the Contracting Officer.

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.228-76  Approval of group insurance plans.

    As prescribed in 48 CFR 1328.310-70(i), insert the following clause:

              Approval of Group Insurance Plans (APR 2010)

    Under cost-reimbursement contracts, before buying insurance under a 
group insurance plan, the contractor shall submit the plan for approval 
to the Contracting Officer. Any change in benefits provided under an 
approved plan that can reasonably be expected to increase significantly 
the cost to the Government shall require similar approval.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 352.231-70  Precontract costs.

    As prescribed in 48 CFR 1331.205-32, insert the following clause:

                      Precontract Costs (APR 2010)

    The contractor is entitled to reimbursement for allowable, 
allocable, and reasonable costs incurred during the period of -------- 
to the award date of this contract in an amount not to exceed $--------.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.231-71  Duplication of effort.

    As prescribed in 48 CFR 1331.205-70, insert the following clause:

                    Duplication of Effort (APR 2010)

    The contractor hereby certifies that costs for work to be performed 
under this contract and any subcontract hereunder are not duplicative of 
any costs charged against any other Government contract, subcontract, or 
other Government source. The contractor agrees to advise the Contracting 
Officer, in writing, of any other Government contract or subcontract it 
has performed or is performing which involves work directly related to 
the purpose of this contract. The contractor also certifies and agrees 
that any and all work performed under this contract shall be directly 
and exclusively for the use and benefit of the Government, and not 
incidental to any other work, pursuit, research, or purpose of the 
contractor, whose responsibility it will be to account for it 
accordingly.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.233-70  Agency protests.

    As prescribed in 48 CFR 1333.103(a), insert the following provision:

                       Agency Protests (APR 2010)

    (a) An agency protest may be filed with either: (1) The contracting 
officer, or (2) at a level above the contracting officer, with the 
appropriate agency Protest Decision Authority. See 64 FR 16,651 (April 
6, 1999).
    (b) Agency protests filed with the Contracting Officer shall be sent 
to the following

[[Page 737]]

address: [Insert Contracting Officer name and Address]
    (c) Agency protests filed with the agency Protest Decision Authority 
shall be sent to the following address: [Insert appropriate Protest 
Decision Authority name and Address]
    (d) A complete copy of all agency protests, including all 
attachments, shall be served upon the Contract Law Division of the 
Office of the General Counsel within one day of filing a protest with 
either the Contracting Officer or the Protest Decision Authority.
    (e) Service upon the Contract Law Division shall be made as follows: 
U.S. Department of Commerce, Office of the General Counsel, Chief, 
Contract Law Division, Room 5893, Herbert C. Hoover Building, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230. FAX: (202) 
482-5858.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.233-71  GAO and Court of Federal Claims protests.

    As prescribed in 48 CFR 1333.104-70(a), insert the following 
provision:

           GAO and Court of Federal Claims Protests (APR 2010)

    (a) A protest may be filed with either the Government Accountability 
Office (GAO) or the Court of Federal Claims unless an agency protest has 
been filed.
    (b) A complete copy of all GAO or Court of Federal Claims protests, 
including all attachments, shall be served upon (i) the Contracting 
Officer, and (ii) the Contract Law Division of the Office of the General 
Counsel, within one day of filing a protest with either GAO or the Court 
of Federal Claims.
    (c) Service upon the Contract Law Division shall be made as follows: 
U.S. Department of Commerce, Office of the General Counsel, Chief, 
Contract Law Division, Room 5893, Herbert C. Hoover Building, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230. FAX: (202) 
482-5858.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.235-70  Protection of human subjects.

    As prescribed in 48 CFR 1335.006(a), insert the following provision:

                 Protection of Human Subjects (APR 2010)

    (a) Research involving human subjects is not permitted under this 
award unless expressly authorized in writing by the Contracting Officer. 
Such authorization will specify the details of the approved research 
involving human subjects and will be incorporated by reference into this 
contract.
    (b) The Federal Policy for the Protection of Human Subjects (the 
``Common Rule''), adopted by the Department of Commerce at 15 CFR part 
27, requires contractors to maintain appropriate policies and procedures 
for the protection of human subjects in research. The Common Rule 
defines a ``human subject'' as a living individual about whom an 
investigator conducting research obtains data through intervention or 
interaction with the individual, or identifiable private information. 
The term ``research'' means a systematic investigation, including 
research development, testing and evaluation, designed to develop or 
contribute to generalizable knowledge. The Common Rule also sets forth 
categories of research that may be considered exempt from 15 CFR part 
27. These categories may be found at 15 CFR 27.101(b).
    (c) In the event the human subjects research involves pregnant 
women, prisoners, or children, the contractor is also required to follow 
the guidelines set forth at 45 CFR part 46 subpart B, C and D, as 
appropriate, for the protection of members of a protected class.
    (d) Should research involving human subjects be included in the 
proposal, prior to issuance of an award, the contractor shall submit the 
following documentation to the Contracting Officer:
    (1) Documentation to verify that contractor has established a 
relationship with an appropriate Institutional Review Board (``cognizant 
IRB''). An appropriate IRB is one that is located within the United 
States and within the community in which the human subjects research 
will be conducted;
    (2) Documentation to verify that the cognizant IRB possesses a valid 
registration with the United States Department of Health and Human 
Services' Office for Human Research Protections (``OHRP'');
    (3) Documentation to verify that contractor has a valid Federal-wide 
Assurance (FWA) issued by OHRP.
    (e) Prior to starting any research involving human subjects, the 
contractor shall submit appropriate documentation to the Contracting 
Officer for institutional review and approval. This documentation may 
include:
    (1) Copies of the human subjects research protocol, all 
questionnaires, surveys, advertisements, and informed consent forms 
approved by the cognizant IRB;
    (2) Documentation of approval for the human subjects research 
protocol, questionnaires, surveys, advertisements, and informed consent 
forms by the cognizant IRB;
    (3) Documentation of continuing IRB approval by the cognizant IRB at 
appropriate

[[Page 738]]

intervals as designated by the IRB, but not less than annually; and/or
    (4) Documentation to support an exemption for the project from the 
Common Rule [Note: this option is not available for activities that fall 
under 45 CFR part 46 subpart C].
    (f) In addition, if the contractor modifies a human subjects 
research protocol, questionnaire, survey, advertisement, or informed 
consent form approved by the cognizant IRB, the contractor shall submit 
a copy of all modified material along with documentation of approval for 
said modification by the cognizant IRB to the Contracting Officer for 
institutional review and approval. The contractor shall not implement 
any IRB approved-modification without written approval by the 
Contracting Officer.
    (g) No work involving human subjects may be undertaken, conducted, 
or costs incurred and/or charged to the project, until the Contracting 
Officer approves the required appropriate documentation in writing.

                           (End of provision)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.235-71  Protection of human subjects--exemption.

    As prescribed in 48 CFR 1335.006(b), insert the following clause:

                 Protection of Human Subjects (APR 2010)

    (a) Contractor has satisfied the requirements set forth in 
solicitation --------, related to the Protection of Human 
Subjects in research. The Government has determined that the research 
involving human subjects to be conducted under this contract is exempt 
from the requirements of the Common Rule for the Protection of Human 
Subjects. The exemption memorandum executed by the Government and the 
attachments are hereby incorporated by reference into this contract. If 
contractor uses an informed consent form for the exempt research, 
contractor must use the informed consent form contained in the 
attachments in its conduct of research involving human subjects under 
this contract.
    (b) If the conditions upon which the exemption is based should 
change in any way, contractor shall immediately notify the Contracting 
Officer in writing of the specified change. The Government will review 
the change and make a determination as to whether the change requires a 
change to the exemption approval. Contractor shall not proceed until 
notified in writing of the Contracting Officer's approval. Contractor 
shall obtain prior written approval from the Contracting Officer for any 
change to the existing human subjects protocol or informed consent form 
before proceeding.
    (c) No other research involving human subjects is permitted under 
this award unless expressly authorized in writing by the Contracting 
Officer. Such writing will specify the details of the approved research 
involving human subjects and will be incorporated by reference into this 
contract.
    (d) The Federal Policy for the Protection of Human Subjects (the 
``Common Rule''), adopted by the Department of Commerce at 15 CFR Part 
27, requires contractors to maintain appropriate policies and procedures 
for the protection of human subjects in research. The Common Rule 
defines a ``human subject'' as a living individual about whom an 
investigator conducting research obtains data through intervention or 
interaction with the individual, or identifiable private information. 
The term ``research'' means a systematic investigation, including 
research development, testing and evaluation, designed to develop or 
contribute to generalizable knowledge.
    (e) The Common Rule also sets forth categories of research that may 
be considered exempt from this policy. These categories may be found at 
15 CFR 27.101(b).
    (f) In the event the human subjects research involves pregnant 
women, prisoners, or children, contractor is also required to follow the 
guidelines set forth at 45 CFR part 46 subpart B, C and D, as 
appropriate, for the protection of members of a protected class.
    (g) Should additional research involving human subjects be required 
under the contract, prior to beginning such research, contractor shall 
submit the following documentation to the Contracting Officer:
    (1) Documentation to verify that contractor has established a 
relationship with an appropriate Institutional Review Board (``cognizant 
IRB''). An appropriate IRB is one that is located within the United 
States and within the community in which the human subjects research 
will be conducted;
    (2) Documentation to verify that the cognizant IRB is registered 
with the United States Department of Health and Human Services' Office 
for Human Research Protections (``OHRP'') and is designated as 
contractor's cognizant IRB;
    (3) Documentation to verify that contractor has a valid Federal-wide 
Assurance (FWA) issued by OHRP; or
    (4) Documentation necessary to support a determination that the 
research is exempt from the requirements of the Common Rule for the 
Protection of Human Subjects.
    (h) Prior to starting any additional research involving human 
subjects, the contractor shall submit appropriate documentation to the 
Contracting Officer for institutional review and approval or exemption 
determination. This documentation may include:

[[Page 739]]

    (1) Copies of the human subjects research protocol, all 
questionnaires, surveys, advertisements, and informed consent forms 
approved by the cognizant IRB;
    (2) Documentation of approval for the human subjects research 
protocol, questionnaires, surveys, advertisements, and informed consent 
forms by the cognizant IRB;
    (3) Documentation of continuing IRB approval by the cognizant IRB at 
appropriate intervals as designated by the IRB, but not less than 
annually; and/or
    (4) Documentation to support an exemption for the project from the 
Common Rule [Note: this option is not available for activities that fall 
under 45 CFR part 46 subpart C].
    (i) In addition, if the contractor modifies a human subjects 
research protocol, questionnaire, survey, advertisement, or informed 
consent form approved by the cognizant IRB, the contractor shall submit 
a copy of all modified material along with documentation of approval for 
said modification by the cognizant IRB to the Contracting Officer for 
institutional review and approval. The contractor may not implement any 
IRB approved modification without written approval by the Contracting 
Officer.
    No work involving human subjects may be undertaken, conducted, or 
costs incurred and/or charged to the project, until the Contracting 
Officer approves the required appropriate documentation in writing.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.235-72  Protection of human subjects--institutional approval.

    As prescribed in 48 CFR 1335.006(c), insert the following clause:

     Protection of Human Subjects--Institutional Approval (APR 2010)

    (a) This contract/order includes non-exempt human subjects research 
that must be conducted pursuant to the requirements of the Federal 
Policy for the Protection of Human Subjects (the ``Common Rule''), 
adopted by the Department of Commerce at 15 CFR part 27. Contractor has 
submitted documentation establishing review and approval of the human 
subjects research protocol, including all informed consent forms, 
advertisements, and other recruitment materials, by a qualified 
Institutional Review Board (IRB) that has a current Federal-wide 
Assurance (FWA) issued by the Department of Health and Human Services 
(DHHS).
    (b) By accepting this contract/order, the contractor certifies the 
accuracy of the documentation provided to its cognizant IRB and to the 
Government in support of the human subjects research specified therein. 
Based upon the contractor's documentation, and following the Government 
institutional review thereof, the following specific involvement of 
human subjects in research is hereby approved by the Contracting 
Officer:

 Name of IRB:___________________________________________________________
(IRB  --------)
 Title of IRB Protocol:_________________________________________________
 Recruiting Letter Approval Date (if appropriate):______________________
 Consent Form Approval Date:____________________________________________
 Assurance of Compliance Number:________________________________________

    (c) Unless incorporated by written contract modification approved by 
the Contracting Officer, no other involvement of human subjects in 
research under this contract may be undertaken or conducted, or costs 
incurred and/or charged to the project, except as specified in the study 
plan reviewed and approved by the cognizant IRB and Government. 
Therefore, if the contractor modifies a human subjects research 
protocol, advertisement, or informed consent form approved by the 
cognizant IRB, contractor shall submit a copy of all modified material, 
along with documentation of approval for said modification by the 
cognizant IRB, to the Contracting Officer for agency institutional 
review and approval. Contractor may not implement any IRB-approved 
modification without written approval by the Contracting Officer.
    Documentation of continuing IRB approval is required each year by 
the renewal date assigned by the cognizant IRB. Documentation of 
continuing IRB approval must be submitted to the Government for review 
and approval as soon as it occurs. Continuing approval of the human 
subjects research must be obtained from the cognizant IRB and provided 
to the Government until the research is completed or terminated. The 
contractor may proceed with previously approved human subjects research, 
if any, under this contract while the Government is conducting 
continuing review and approval of the human subjects research protocol. 
In the event that the Government determines, during the course of its 
review, that the human subjects research in this contract is not in 
compliance with the regulations set forth at 15 CFR part 27, or this 
contract, the Contracting Officer may take the appropriate enforcement 
action, including disallowing costs, suspending or terminating the human 
subjects protocol or the contract, by notifying the contractor in 
writing.
    (d) It is incumbent upon contractor to ensure that continuing IRB 
review approval occurs in accordance with 15 CFR part 27. In the event 
that continuing review approval does not occur as set forth by 15 CFR 
part 27, contractor is to notify the Contracting Officer immediately.

[[Page 740]]

    (e) Contractor must report all adverse events to the cognizant IRB 
and to the Contracting Officer. In the event that adverse events are 
reported to the cognizant IRB and the Contracting Officer, the 
Government may suspend this contract pending a full review of the 
adverse event by the cognizant IRB.
    (f) If the conditions upon which IRB approval is based should change 
in any way, contractor shall immediately notify the Contracting Officer, 
in writing, of the specified change.
    (g) Failure to comply with this contract clause will be considered 
material noncompliance with the contract, and the Contracting Officer 
may take appropriate enforcement action, including disallowing costs, 
suspension or termination of the contract.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.235-73  Research involving human subjects--after initial 
          contract award.

    As prescribed in 48 CFR 1335.006(d), insert the following clause:

  Research Involving Human Subjects--After Initial Contract Award (APR 
                                  2010)

    (a) No research involving human subjects is currently included in 
this contract/task order, and no research involving human subjects is 
permitted under this contract/task order unless expressly authorized, in 
writing, by the Contracting Officer.
    (b) The Federal Policy for the Protection of Human Subjects (the 
``Common Rule''), adopted by the Department of Commerce at 15 CFR part 
27, requires that contractors maintain appropriate policies and 
procedures for the protection of human subjects in research. The Common 
Rule defines a ``human subject'' as a living individual about whom an 
investigator conducting research obtains data through intervention or 
interaction with the individual, or identifiable private information. 
The term ``research'' means a systematic investigation, including 
research, development, testing and evaluation, designed to develop or 
contribute to generalizable knowledge.
    (c) The Common Rule also sets forth categories of research that may 
be considered exempt from this policy. These categories are specified at 
15 CFR 27.101(b).
    (d) In the event that human subjects research involves pregnant 
women, prisoners, or children, the contractor is also required to follow 
the guidelines set forth at 45 CFR part 46 subparts B, C and D, as 
appropriate, for the protection of members of a protected class.
    (e) Should research involving human subjects become necessary for 
carrying out this contract/task order, prior to undertaking or 
conducting such human subjects research, contractor shall submit the 
following documentation to the Contracting Officer:
    (1) Documentation to verify that contractor has established a 
relationship with an appropriate Institutional Review Board (``cognizant 
IRB''). An appropriate IRB is one that is located within the United 
States and within the community in which the human subjects research 
will be conducted;
    (2) Documentation to verify that the cognizant IRB is registered 
with the United States Department of Health and Human Services' Office 
for Human Research Protections (``OHRP'');
    (3) Documentation to verify that contractor has a valid Federal-wide 
Assurance (FWA) issued by the OHRP.
    (f) Prior to starting any research involving human subjects, 
contractor shall submit appropriate documentation to the Contracting 
Officer for Government institutional review and approval. This 
documentation may include:
    (1) Copies of the human subjects research protocol, advertisements, 
recruitment material, and informed consent forms approved by the 
cognizant IRB;
    (2) Documentation of approval for the human subjects research 
protocol, advertisements, recruitment material, and informed consent 
forms by the cognizant IRB;
    (3) Documentation of continuing IRB approval by the cognizant IRB at 
appropriate intervals as designated by the IRB, but not less than 
annually; and/or
    (4) Documentation to support an exemption for the project from the 
Common Rule [Note: this option is not available for activities that fall 
under 45 CFR part 46 subpart C].
    (g) In addition, if contractor modifies a human subjects research 
protocol, advertisement, recruitment material, or informed consent form 
approved by the cognizant IRB, contractor shall submit a copy of all 
modified material, along with documentation of approval for said 
modification by the cognizant IRB, to the Contracting Officer for Agency 
institutional review and approval. Contractor may not implement any IRB-
approved modification without written approval by the Contracting 
Officer.
    (h) No work involving human subjects may be undertaken, conducted, 
or costs incurred and/or charged to the project, until the Contracting 
Officer approves the required appropriate documentation in writing.

[[Page 741]]

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.237-70  Security processing requirements--high or moderate 
          risk contracts.

    As prescribed in 48 CFR 1337.110-70 (b), insert the following 
clause:

 Security Processing Requirements--High or Moderate Risk Contracts (APR 
                                  2010)

    (a) Investigative Requirements for High and Moderate Risk Contracts. 
All contractor (and subcontractor) personnel proposed to be employed 
under a High or Moderate Risk contract shall undergo security processing 
by the Department's Office of Security before being eligible to work on 
the premises of any Department of Commerce owned, leased, or controlled 
facility in the United States or overseas, or to obtain access to a 
Department of Commerce IT system. All Department of Commerce security 
processing pertinent to this contract will be conducted at no cost to 
the contractor. The level of contract risk will determine the type and 
scope of such processing, as noted below.
    (1) Investigative requirements for Non-IT Service Contracts are:
    (i) High Risk--Background Investigation (BI).
    (ii) Moderate Risk--Moderate Background Investigation (MBI).
    (2) Investigative requirements for IT Service Contracts are:
    (i) High Risk IT--Background Investigation (BI).
    (ii) Moderate Risk IT--Background Investigation (BI).
    (b) In addition to the investigations noted above, non-U.S. citizens 
must have a pre-appointment check that includes an Immigration and 
Customs Enforcement agency check.
    (c) Additional Requirements for Foreign Nationals (Non-U.S. 
Citizens). To be employed under this contract within the United States, 
non-U.S. citizens must have:
    (1) Official legal status in the United States;
    (2) Continuously resided in the United States for the last two 
years; and
    (3) Obtained advance approval from the servicing Security Officer of 
the contracting operating unit in consultation with the DOC Office of 
Security (OSY) headquarters. (OSY routinely consults with appropriate 
agencies regarding the use of non-U.S. citizens on contracts and can 
provide up-to-date information concerning this matter.)
    (d) Security Processing Requirement. Processing requirements for 
High and Moderate Risk Contracts are as follows:
    (1) The contractor must complete and submit the following forms to 
the Contracting Officer's Representative (COR):
    (i) Standard Form 85P (SF-85P), Questionnaire for Public Trust 
Positions;
    (ii) FD-258, Fingerprint Chart with OPM's designation in the ORI 
Block; and
    (iii) Credit Release Authorization.
    (2) The Sponsor will ensure that these forms have been properly 
completed, initiate the CD-254, Contract Security Classification 
Specification, and forward the documents to the cognizant Security 
Officer.
    (3) Upon completion of security processing, the Office of Security, 
through the servicing Security Officer and the Sponsor, will notify the 
contractor in writing of an individual's eligibility to be provided 
access to a Department of Commerce facility or Department of Commerce IT 
system.
    (4) Security processing shall consist of limited personal background 
inquiries pertaining to verification of name, physical description, 
marital status, present and former residences, education, employment 
history, criminal record, personal references, medical fitness, 
fingerprint classification, and other pertinent information. For non-
U.S. citizens, the Sponsor must request an Immigration and Customs 
Enforcement agency check. It is the option of the Office of Security to 
repeat the security processing on any contract employee at its 
discretion.
    (e) Notification of Disqualifying Information. If the Office of 
Security receives disqualifying information on a contract employee, the 
COR will be notified. The Sponsor, in coordination with the Contracting 
Officer, will immediately remove the contract employee from duties 
requiring access to Departmental facilities or IT systems. Contract 
employees may be barred from working on the premises of a facility for 
any of the following:
    (1) Conviction of a felony crime of violence or of a misdemeanor 
involving moral turpitude;
    (2) Falsification of information entered on security screening forms 
or on other documents submitted to the Department;
    (3) Improper conduct once performing on the contract, including 
criminal, infamous, dishonest, immoral, or notoriously disgraceful 
conduct or other conduct prejudicial to the Government, regardless of 
whether the conduct was directly related to the contract;
    (4) Any behavior judged to pose a potential threat to Departmental 
information systems, personnel, property, or other assets.
    (f) Failure to comply with security processing requirements may 
result in termination of the contract or removal of contract employees 
from Department of Commerce facilities or denial of access to IT 
systems.
    (g) Access to National Security Information. Compliance with these 
requirements

[[Page 742]]

shall not be construed as providing a contract employee clearance to 
have access to national security information.
    (h) The contractor shall include the substance of this clause, 
including this paragraph, in all subcontracts.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.237-71  Security processing requirements--low risk contracts.

    As prescribed in 48 CFR 1337.110-70(c), insert the following clause:

     Security Processing Requirements--Low Risk Contracts (APR 2010)

    (a) Investigative Requirements for Low Risk Contracts. All 
contractor (and subcontractor) personnel proposed to be employed under a 
Low Risk contract shall undergo security processing by the Department's 
Office of Security before being eligible to work on the premises of any 
Department of Commerce owned, leased, or controlled facility in the 
United States or overseas, or to obtain access to a Department of 
Commerce IT system. All Department of Commerce security processing 
pertinent to this contract will be conducted at no cost to the 
contractor.
    (b) Investigative requirements for Non-IT Service Contracts are:
    (1) Contracts more than 180 days--National Agency Check and 
Inquiries (NACI).
    (2) Contracts less than 180 days--Special Agency Check (SAC).
    (c) Investigative requirements for IT Service Contracts are:
    (1) Contracts more than 180 days--National Agency Check and 
Inquiries (NACI).
    (2) Contracts less than 180 days--National Agency Check and 
Inquiries (NACI).
    (d) In addition to the investigations noted above, non-U.S. citizens 
must have a background check that includes an Immigration and Customs 
Enforcement agency check.
    (e) Additional Requirements for Foreign Nationals (Non-U.S. 
Citizens). Non-U.S. citizens (lawful permanent residents) to be employed 
under this contract within the United States must have:
    (1) Official legal status in the United States;
    (2) Continuously resided in the United States for the last two 
years; and
    (3) Obtained advance approval from the servicing Security Officer in 
consultation with the Office of Security headquarters.
    (f) DOC Security Processing Requirements for Low Risk Non-IT Service 
Contracts. Processing requirements for Low Risk non-IT Service Contracts 
are as follows:
    (1) Processing of a NACI is required for all contract employees 
employed in Low Risk non-IT service contracts for more than 180 days. 
The Contracting Officer's Representative (COR) will invite the 
prospective contractor into e-QIP to complete the SF-85. The contract 
employee must also complete fingerprinting.
    (2) Contract employees employed in Low Risk non-IT service contracts 
for less than 180 days require processing of Form OFI-86C Special 
Agreement Check (SAC), to be processed. The Sponsor will forward a 
completed Form OFI-86C, FD-258, Fingerprint Chart, and Credit Release 
Authorization to the servicing Security Officer, who will send the 
investigative packet to the Office of Personnel Management for 
processing.
    (3) Any contract employee with a favorable SAC who remains on the 
contract over 180 days will be required to have a NACI conducted to 
continue working on the job site.
    (4) For Low Risk non-IT service contracts, the scope of the SAC will 
include checks of the Security/Suitability Investigations Index (SII), 
other agency files (INVA), Defense Clearance Investigations Index 
(DCII), FBI Fingerprint (FBIF), and the FBI Information Management 
Division (FBIN).
    (5) In addition, for those individuals who are not U.S. citizens 
(lawful permanent residents), the Sponsor may request a Customs 
Enforcement SAC on Form OFI-86C, by checking Block 7, Item I. 
In Block 13, the Sponsor should enter the employee's Alien Registration 
Receipt Card number to aid in verification.
    (6) Copies of the appropriate forms can be obtained from the Sponsor 
or the Office of Security. Upon receipt of the required forms, the 
Sponsor will forward the forms to the servicing Security Officer. The 
Security Officer will process the forms and advise the Sponsor and the 
Contracting Officer whether the contract employee can commence work 
prior to completion of the suitability determination based on the type 
of work and risk to the facility (i.e., adequate controls and 
restrictions are in place). The Sponsor will notify the contractor of 
favorable or unfavorable findings of the suitability determinations. The 
Contracting Officer will notify the contractor of an approved contract 
start date.
    (g) Security Processing Requirements for Low Risk IT Service 
Contracts. Processing of a NACI is required for all contract employees 
employed under Low Risk IT service contracts.
    (1) Contract employees employed in all Low Risk IT service contracts 
will require a National Agency Check and Inquiries (NACI) to be 
processed. The Contracting Officer's Representative (COR) will invite 
the prospective contractor into e-QIP to complete the SF-85. 
Fingerprints and a Credit Release Authorization must be completed within 
three working days from start of work, and provided to the Servicing 
Security Officer,

[[Page 743]]

who will forward the investigative package to OPM.
    (2) For Low Risk IT service contracts, individuals who are not U.S. 
citizens (lawful permanent residents) must undergo a NACI that includes 
an agency check conducted by the Immigration and Customs Enforcement 
Service. The Sponsor must request the ICE check as a part of the NAC.
    (h) Notification of Disqualifying Information. If the Office of 
Security receives disqualifying information on a contract employee, the 
Sponsor and Contracting Officer will be notified. The Sponsor shall 
coordinate with the Contracting Officer for the immediate removal of the 
employee from duty requiring access to Departmental facilities or IT 
systems. Contract employees may be barred from working on the premises 
of a facility for any of the following reasons:
    (1) Conviction of a felony crime of violence or of a misdemeanor 
involving moral turpitude.
    (2) Falsification of information entered on security screening forms 
or of other documents submitted to the Department.
    (3) Improper conduct once performing on the contract, including 
criminal, infamous, dishonest, immoral, or notoriously disgraceful 
conduct or other conduct prejudicial to the Government regardless of 
whether the conduct was directly related to the contract.
    (4) Any behavior judged to pose a potential threat to Departmental 
information systems, personnel, property, or other assets.
    (i) Failure to comply with security processing requirements may 
result in termination of the contract or removal of contract employees 
from Department of Commerce facilities or denial of access to IT 
systems.
    (j) Access to National Security Information. Compliance with these 
requirements shall not be construed as providing a contract employee 
clearance to have access to national security information.
    (k) The contractor shall include the substance of this clause, 
including this paragraph, in all subcontracts.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.237-72  Security processing requirements--national security 
          contracts.

    As prescribed in 48 CFR 1337.110-70(d), use the following clause:

Security Processing Requirements--National Security Contracts (APR 2010)

    (a) Security Investigative Requirements for National Security 
Contracts. National Security Contracts require contractor employees to 
gain access to national security information in the performance of their 
work. Regardless of the contractor employees' location, appropriate 
security access and fulfillment of cleared facility requirements, as 
determined by the National Industrial Security Program (NISP) Operation 
Manual must be met. All contractors are subject to the appropriate 
investigations indicated below and may be granted appropriate security 
access by the Office of Security based on favorable results. No national 
security material or documents shall be removed from a Department of 
Commerce facility. The circumstances of the work performance must allow 
the Department of Commerce to retain control over national security 
information and keep the number of contract personnel with access to the 
information to a minimum.
    (b) All employees working on Special or Critical Sensitive contracts 
require an updated personnel security background investigation every 
five (5) years. Employees on Non-Critical Sensitive contracts will 
require an updated personnel security background investigation every ten 
(10) years.
    (c) Security procedures. Position sensitivity/risk assessments must 
be conducted on all functions that are performed under the contract. 
Risk assessments for contractor employees are determined in the same 
manner as assessment of those functions performed by government 
employees. The Contracting Officer and Contracting Officer's 
Representative should determine the level of sensitivity or risk with 
the assistance of the servicing Security Officer.
    (1) Contractor employees working on National Security Contracts must 
have a completed investigation and be granted an appropriate security 
level clearance by the Office of Security before start of work.
    (2) The Contracting Officer's Representative must send the contract 
employee's existing security clearance information, if applicable, or 
appropriate investigative request package, to the servicing Security 
Officer, who will review and forward it to the Office of Security.
    (3) The Office of Security must confirm that contract employees have 
the appropriate security clearance before starting any work under a 
National Security Contract.
    (d) Security forms required. For Critical-Sensitive positions with 
Top Secret access, Critical-Sensitive positions with Secret access, and 
Non-Critical Sensitive positions with Secret or Confidential access, the 
following forms are required:
    (1) Form SF-86, Questionnaire for National Security Positions, 
marked ``CON'' in Block 1, Position Title, to distinguish it as a 
contractor case;
    (2) Form FD-258, Fingerprint Chart, with OPM's designation in the 
ORI Block; and
    (3) Credit Release Authorization Form.

[[Page 744]]

    (e) Contracting Officer's Representative Responsibilities are:
    (1) Coordinate submission of a proper investigative request package 
with the servicing Security Officer, the Contracting Officer, and the 
contractor.
    (2) Review the request package for completeness, ensuring that the 
subject of each package is identified as a contract employee, the name 
of the contractor is identified, and that each package clearly indicates 
the contract sensitivity designation.
    (3) Send the request package to the servicing Security Officer for 
investigative processing.
    (f) Servicing Security Officer Responsibilities are:
    (1) Review the package for completeness.
    (2) Ensure that the forms are complete and contain all the pertinent 
information necessary to request the background investigation.
    (3) Forward the request for investigation to the Defense 
Investigative Service Coordinating Office (DISCO).
    (4) Maintain records of contractor personnel in their units subject 
to the NISP.
    (5) Ensure that all contractor personnel have been briefed on the 
appropriate procedures for handling and safeguarding national security 
information.
    (g) The contractor shall include the substance of this clause, 
including this paragraph, in all subcontracts.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.237-73  Foreign national visitor and guest access to 
          departmental resources.

    As prescribed in 48 CFR 1337.110-70 (e), insert the following 
clause:

Foreign National Visitor and Guest Access to Departmental Resources (APR 
                                  2010)

    (a) The contractor shall comply with the provisions of Department 
Administrative Order 207-12, Foreign National Visitor and Guest Access 
Program; Bureau of Industry and Security Export Administrative 
Regulations Part 734, and [insert operating unit counsel specific 
procedures]. The contractor shall provide the Government with notice of 
foreign nationals requiring access to any Department of Commerce 
facility or through a Department of Commerce IT system.
    (b) The contractor shall identify each foreign national who requires 
access to any Departmental resources, and shall provide all requested 
information in writing to the Contracting Officer's Representative.
    (c) The contractor shall include the substance of this clause, 
including this paragraph, in all subcontracts.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.237-74  Progress reports.

    As prescribed in 48 CFR 1337.110-71(a), insert the following clause:

                       Progress Reports (APR 2010)

    The contractor shall submit, to the Government, a progress report 
every -------- [insert time period] month(s) after the effective date of 
the contract, and every ---------------- [insert time period] thereafter 
during the period of performance. The contractor shall deliver progress 
reports that summarize the work completed during the performance period, 
the work forecast for the following period, and state the names, titles 
and number of hours expended for each of the contractor's professional 
personnel assigned to the contract, including officials of the 
contractor. The report shall also include any additional information--
including findings and recommendations--that may assist the Government 
in evaluating progress under this contract. The first report shall 
include a detailed work outline of the project and the contractor's 
planned phasing of work by reporting period.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.237-75  Key personnel.

    As prescribed in 48 CFR 1337.110-71(b), insert the following clause:

                        Key Personnel (APR 2010)

    (a) The contractor shall assign to this contract the following key 
personnel:
    (Name) (Position Title)
    (Name) (Position Title)
    (b) The contractor shall obtain the consent of the Contracting 
Officer prior to making key personnel substitutions. Replacements for 
key personnel must possess qualifications equal to or exceeding the 
qualifications of the personnel being replaced, unless an exception is 
approved by the Contracting Officer.
    (c) Requests for changes in key personnel shall be submitted to the 
Contracting Officer at least 15 working days prior to making any 
permanent substitutions. The request should

[[Page 745]]

contain a detailed explanation of the circumstances necessitating the 
proposed substitutions, complete resumes for the proposed substitutes, 
and any additional information requested by the Contracting Officer. The 
Contracting Officer will notify the contractor within 10 working days 
after receipt of all required information of the decision on 
substitutions. The contract will be modified to reflect any approved 
changes.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.239-70  Software license addendum.

    As prescribed in 48 CFR 1339.107, insert the following clause:

                  Software License Addendum (APR 2010)

    (a) This Addendum incorporates certain terms and conditions relating 
to Federal procurement actions. The terms and conditions of this 
Addendum take precedence over the terms and conditions contained in any 
license agreement or other contract documents entered into between the 
parties.
    (b) Governing Law: Federal procurement law and regulations, 
including the Contract Disputes Act, 41 U.S.C. Section 601 et. seq., and 
the Federal Acquisition Regulation (FAR), govern the agreement between 
the parties. Litigation arising out of this contract may be filed only 
in those fora that have jurisdiction over Federal procurement matters.
    (c) Attorney's Fees: Attorney's fees are payable by the Federal 
government in any action arising under this contract only pursuant to 
the Equal Access in Justice Act, 5 U.S.C. Section 504.
    (d) No Indemnification: The Federal government will not be liable 
for any claim for indemnification; such payments may violate the Anti-
Deficiency Act, 31 U.S.C. Section 1341(a).
    (e) Assignment: Payments may only be assigned in accordance with the 
Assignment of Claims Act, 31 U.S.C. Section 3727, and FAR Subpart 32.8, 
``Assignment of Claims.''
    (f) Invoices: Invoices will be handled in accordance with the Prompt 
Payment Act (31 U.S.C. Section 3903) and Office of Management and Budget 
(OMB) Circular A-125, Prompt Payment.
    (g) Patent and Copyright Infringement: Patent or copyright 
infringement suits brought against the United States as a party may only 
be defended by the U.S. Department of Justice (28 U.S.C. Section 516).
    (h) Renewal of Support after Expiration of this Award: Service will 
not automatically renew after expiration of the initial term of this 
agreement.
    (i) Renewal may only occur in accord with (1) the mutual agreement 
of the parties; or (2) an option renewal clause allowing the Government 
to unilaterally exercise one or more options to extend the term of the 
agreement.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.239-71  Electronic and information technology.

    As prescribed in 48 CFR 1339.270(a), insert the following provision:

            Electronic and Information Technology (APR 2010)

    (a) To be considered eligible for award, offerors must propose 
electronic and information technology (EIT) that meet the applicable 
Access Board accessibility standards at 36 CFR 1194 designated below:

------ 1194.21 Software applications and operating systems
------ 1194.22 Web-based intranet and internet information and 
applications
------ 1194.23 Telecommunications products
------ 1194.24 Video and multimedia products
------ 1194.25 Self-contained, closed products
------ 1194.26 Desktop and portable computers
------ 1194.31 Functional performance criteria
------ 1194.41 Information, documentation and support

    (b) The standards do not require the installation of specific 
accessibility-related software or the attachment of an assistive 
technology device, but merely require that the EIT be compatible with 
such software and devices so that it can be made accessible if so 
required by the agency in the future.
    (c) Alternatively, offerors may propose products and services that 
provide equivalent facilitation. Such offers will be considered to have 
met the provisions of the Access Board standards for the feature or 
components providing equivalent facilitation. If none of the offers that 
meet all applicable provisions of the standards could be accepted 
without imposing an undue burden on the agency or component, or if none 
of the offerors propose products or services that fully meet all of the 
applicable Access Board's provisions, those offerors whose products or 
services meet some of the applicable provisions will be considered 
eligible for award. Awards will not be made to an offeror meeting all or 
some of the applicable Access Board provisions if award would impose an 
undue burden upon the agency.

[[Page 746]]

    (d) Offerors must submit representation information concerning their 
products by completing the VPAT template at http://www.Section508.gov.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.239-72  Security requirements for information technology 
          resources.

    As prescribed in 48 CFR 1339.270(b), insert the following clause:

  Security Requirements for Information Technology Resources (APR 2010)

    (a) Applicability. This clause is applicable to all contracts that 
require contractor electronic access to Department of Commerce sensitive 
non-national security or national security information contained in 
systems, or administrative control of systems by a contractor that 
process or store information that directly supports the mission of the 
Agency.
    (b) Definitions. For purposes of this clause, the term ``Sensitive'' 
is defined by the guidance set forth in the Computer Security Act of 
1987 (Pub. L. 100-235), including the following definition of the term:
    (1) Sensitive information is `` * * * any information, the loss, 
misuse, or unauthorized access to, or modification of which could 
adversely affect the national interest or the, conduct of Federal 
programs, or the privacy to which individuals are entitled under section 
552a of title 5, United States Code (The Privacy Act), but which has not 
been specifically authorized under criteria established by an Executive 
Order or an Act of Congress to be kept secret in the interest of 
national defense or foreign policy.''
    (2) For purposes of this clause, the term ``National Security'' is 
defined by the guidance set forth in:
    (i) The DOC IT Security Program Policy and Minimum Implementation 
Standards, Section 4.3.
    (ii) The DOC Security Manual, Chapter 18.
    (iii) Executive Order 12958, as amended, Classified National 
Security Information. Classified or national security information is 
information that has been specifically authorized to be protected from 
unauthorized disclosure in the interest of national defense or foreign 
policy under an Executive Order or Act of Congress.
    (3) Information technology resources include, but are not limited 
to, hardware, application software, system software, and information 
(data). Information technology services include, but are not limited to, 
the management, operation (including input, processing, transmission, 
and output), maintenance, programming, and system administration of 
computer systems, networks, and telecommunications systems.
    (c) The contractor shall be responsible for implementing sufficient 
Information Technology security, to reasonably prevent the compromise of 
DOC IT resources for all of the contractor's systems that are 
interconnected with a DOC network or DOC systems that are operated by 
the contractor.
    (d) All contractor personnel performing under this contract and 
contractor equipment used to process or store DOC data, or to connect to 
DOC networks, must comply with the requirements contained in the DOC 
Information Technology Management Handbook (see DOC, Office of the Chief 
Information Officer Web site), or equivalent/more specific agency or 
operating unit counsel guidance as specified immediately hereafter 
[insert agency or operating unit counsel specific guidance, if 
applicable].
    (e) Contractor personnel requiring a user account for access to 
systems operated by the contractor for DOC or interconnected to a DOC 
network to perform contract services shall be screened at an appropriate 
level in accordance with Commerce Acquisition Manual 1337.70, Security 
Processing Requirements for Service Contracts.
    (f) Within 5 days after contract award, the contractor shall certify 
in writing to the COR that its employees, in performance of the 
contract, have completed initial IT security orientation training in DOC 
IT Security policies, procedures, computer ethics, and best practices, 
in accordance with DOC IT Security Program Policy, chapter 15, section 
15.3. The COR will inform the contractor of any other available DOC 
training resources. Annually thereafter the contractor shall certify in 
writing to the COR that its employees, in performance of the contract, 
have completed annual refresher training as required by section 15.4 of 
the DOC IT Security Program Policy.
    (g) Within 5 days of contract award, the contractor shall provide 
the COR with signed acknowledgement of the provisions as contained in 
Commerce Acquisition Regulation (CAR), 1352.209-72, Restrictions Against 
Disclosures.
    (h) The contractor shall afford DOC, including the Office of 
Inspector General, access to the contractor's and subcontractor's 
facilities, installations, operations, documentation, databases, and 
personnel used in performance of the contract. Access shall be provided 
to the extent required to carry out a program of IT inspection, 
investigation, and audit to safeguard against threats and hazards to the 
integrity, availability, and confidentiality of DOC data or to the 
function of computer systems operated on behalf of DOC, and to preserve 
evidence of computer crime.
    (i) For all contractor-owned systems for which performance of the 
contract requires

[[Page 747]]

interconnection with a DOC network on which DOC data will be stored or 
processed, the contractor shall provide, implement, and maintain a 
System Accreditation Package in accordance with the DOC IT Security 
Program Policy. Specifically, the contractor shall:
    (1) Within 14 days after contract award, submit for DOC approval a 
System Certification Work Plan, including project management information 
(at a minimum the tasks, resources, and milestones) for the 
certification effort, in accordance with DOC IT Security Program Policy 
and [Insert agency or operating unit counsel specific guidance, if 
applicable]. The Certification Work Plan, approved by the COR, in 
consultation with the DOC IT Security Officer, or Agency/operating unit 
counsel IT Security Manager/Officer, shall be incorporated as part of 
the contract and used by the COR to monitor performance of certification 
activities by the contractor of the system that will process DOC data or 
connect to DOC networks. Failure to submit and receive approval of the 
Certification Work Plan may result in termination of the contract.
    (2) Upon approval, follow the work plan schedule to complete system 
certification activities in accordance with DOC IT Security Program 
Policy Section 6.2, and provide the COR with the completed System 
Security Plan and Certification Documentation Package portions of the 
System Accreditation Package for approval and system accreditation by an 
appointed DOC official.
    (3) Upon receipt of the Security Assessment Report and Authorizing 
Official's written accreditation decision from the COR, maintain the 
approved level of system security as documented in the Security 
Accreditation Package, and assist the COR in annual assessments of 
control effectiveness in accordance with DOC IT Security Program Policy, 
Section 6.3.1.1.
    (j) The contractor shall incorporate this clause in all subcontracts 
that meet the conditions in paragraph (a) of this clause.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.242-70  Postaward conference.

    As prescribed in 48 CFR 1342.503-70, insert the following provision:

                     Postaward Conference (APR 2010)

    A postaward conference with the successful offeror may be required. 
If required, the Contracting Officer will contact the contractor within 
10 days of contract award to arrange the conference.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.245-70  Government furnished property.

    As prescribed in 48 CFR 1345.107-70, insert the following clause:

                Government Furnished Property (APR 2010)

    The Government will provide the following item(s) of Government 
property to the contractor . The contractor shall be accountable for, 
and have stewardship of, the property in the performance of this 
contract. This property shall be used and maintained by the contractor 
in accordance with provisions of the ``Government Property'' clause 
included in this contract.

----------------------------------------------------------------------------------------------------------------
                                                                                           Property/Tag No. (if
            Item No.                Description          Quantity        Delivery date          applicable)
----------------------------------------------------------------------------------------------------------------
                                 .................  .................  .................  ......................
----------------------------------------------------------------------------------------------------------------

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.246-70  Place of acceptance.

    As prescribed in 1346.503, insert the following clause:

                     Place of Acceptance (APR 2010)

    (a) The Contracting Officer or the duly authorized representative 
will accept supplies and services to be provided under this contract.
    (b) The place of acceptance will be:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.270-70  Period of performance.

    As prescribed in 48 CFR 1370.101, insert the following clause:

[[Page 748]]

                    Period of Performance (APR 2010)

    (a) The base period of performance of this contract is from -------- 
through --------. If an option is exercised, the period of performance 
shall be extended through the end of that option period.
    (b) The option periods that may be exercised are as follows:

------------------------------------------------------------------------
                    Period                       Start date    End date
------------------------------------------------------------------------
Option I......................................  ...........
Option II.....................................  ...........
Option III....................................  ...........
Option IV.....................................  ...........  ...........
------------------------------------------------------------------------

    (c) The notice requirements for unilateral exercise of option 
periods are set out in FAR 52.217-9.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.270-71  Pre-bid/pre-proposal conference and site visit.

    As prescribed in 48 CFR 1370.102, insert the following provision:

        Pre-Bid/Pre-Proposal Conference and Site Visit (APR 2010)

    (a) The Government is planning a pre-proposal conference, during 
which potential contractors may obtain a better understanding of the 
work required.
    (b) Offerors are encouraged to submit all questions in writing at 
least [----] days prior to the conference. Questions will be considered 
at any time prior to, or during, the conference; however, offerors will 
be asked to confirm verbal questions in writing. Subsequent to the 
conference, an amendment to the solicitation containing an abstract of 
the questions and the Government's answers, and a list of attendees, 
will be made publicly available.
    (c) In order to facilitate conference preparations, contact the 
person identified in [Block --] on Standard Form [--] of this 
solicitation to make arrangements for security processing for entry of 
attendees into the Government facility.
    (d) In no event shall failure to attend the pre-proposal conference 
constitute grounds supporting a protest or contract claim.
    (e) Offerors are cautioned that, notwithstanding any remarks, 
clarifications, or responses provided at the conference, all terms and 
conditions of the solicitation remain unchanged unless they are changed 
by written amendment. It is the responsibility of each offeror, prior to 
submitting a proposal, to seek clarification of any perceived ambiguity 
in the solicitation or created by an amendment of the solicitation.

    (f) The pre-proposal conference will be held:

 Date:__________________________________________________________________
 Time:__________________________________________________________________
 Location:______________________________________________________________
    [Instructions: If the conference also includes a site or equipment 
inspection visit, insert the following paragraph]:
    (g) During the conference, an opportunity to visit the site of the 
work, and, if applicable, inspect equipment on which maintenance or 
repairs are to be performed will be offered to attendees.
    (h) Offerors are expected to satisfy themselves regarding all 
conditions that may affect the work required or the cost of contract 
performance. In no event shall failure to inspect the site and/or 
equipment constitute grounds for any protest or contract claim.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-70  Inspection and manner of doing work.

    As prescribed in 48 CFR 1371.101, insert the following clause:

             Inspection and Manner of Doing Work (APR 2010)

    (a) All work and material shall be subject to the approval of the 
Contracting Officer or duly authorized representative. Work shall be 
performed in accordance with the plans and specifications of this 
contract as modified by any contract modification.
    (b) Unless otherwise specifically provided for in the contract, all 
operational practices of the contractor and all workmanship and 
material, equipment and articles used in the performance of work shall 
be in accordance with American Bureau of Shipping ``Rules for Building 
and Classing Steel Vessels'', U.S. Coast Guard Marine Engineering 
Regulations and Material Specifications (46 CFR Subchapter F), U.S. 
Coast Guard Electrical Engineering Regulations (46 CFR Subchapter J), 
and U.S. Public Health Service ``Handbook on Sanitation of Vessel 
Construction'', in effect at the time of the contract award; and the 
best commercial maritime practices, except where military specifications 
are specified, in which case such standards of material and workmanship 
shall be followed.
    (c) All material and workmanship shall be subject to inspection and 
test at all times during the contractor's performance of the work to 
determine their quality and suitability for the purpose intended and 
compliance with the contract. In case any material or workmanship 
furnished by the contractor is found to be defective prior to redelivery 
of

[[Page 749]]

the vessel, or not in accordance with the requirements of the contract, 
the Government shall have the right prior to redelivery of the vessel to 
reject such material or workmanship, and to require its correction or 
replacement by the contractor at the contractor's cost and expense. This 
Government right is in addition to its rights under any Guarantee clause 
in this contract. If the contractor fails to proceed promptly with the 
replacement or correction of such material or workmanship, as required 
by the Contracting Officer, the Government may, by contract or 
otherwise, replace or correct such material or workmanship and charge to 
the contractor the excess cost to the Government. The contractor shall 
provide and maintain an inspection system acceptable to the Government 
covering the work specified in the contract. Records of all inspection 
work by the contractor shall be kept complete and available to the 
Government during the performance of the contract and for a period of 
two (2) years after delivery of the vessel to the Government.
    (d) No welding, including tack welding and brazing, shall be 
permitted in connection with repairs, completions, alterations, or 
addition to hulls, machinery or components of vessels unless the welder 
is, at the time, qualified to the standards established by the U.S. 
Coast Guard, the American Bureau of Shipping, or the Department of the 
Navy. The welder's qualifications shall be appropriate for the 
particular service application, filler material type, position of 
welding, and welding process involved in the work being undertaken. A 
welder may be required to re-qualify if the Contracting Officer believes 
there is a reasonable doubt concerning the welder's ability. Welders' 
qualifications for this purpose shall be governed by the U.S. Coast 
Guard Marine Engineering Regulations and Material Specifications (46 CFR 
Subchapter F). When a welding process other than manual shielded arc is 
proposed or required, the contractor or fabricator shall submit 
procedure qualification tests for approval prior to production welding. 
Procedure qualification tests shall be conducted in accordance with the 
United States Coast Guard Marine Engineering Regulations and Material 
Specifications (46 CFR Subchapter F).
    (e) The contractor shall exercise reasonable care to protect the 
vessel from fire, and the contractor shall maintain a reasonable system 
of inspection over the activities of welders, burners, riveters, 
painters, plumbers and similar workers, particularly where such 
activities are undertaken in the vicinity of the vessel's fuel oil 
tanks, magazines or storerooms containing flammable material. A 
reasonable number of hose lines shall be maintained by the contractor 
ready for immediate use on the vessel at all times while the vessel is 
berthed alongside the contractor's pier or in dry dock or on a marine 
railway. All tanks or bilge areas under alteration or repair shall be 
cleaned, washed, and steamed out or otherwise made safe by the 
contractor if and to the extent necessary as required by good marine 
practice or by current Occupational Safety and Health Administration 
regulations. The Contracting Officer's Representative (COR) shall be 
furnished with a ``gas free'' or ``safe for hot work'' or ``safe for 
workers'' certificate before any hot work or entry is done. Unless 
otherwise provided in this contract, the contractor shall at all times 
maintain a reasonable fire watch about the vessel, including a fire 
watch on the vessel while work is being performed thereon.
    (f) The contractor shall place proper safeguards and/or effect such 
safety precautions as necessary, including suitable and sufficient 
lighting, for the prevention of accidents or injury to persons or 
property during the prosecution of work under this contract and/or from 
time of receipt of the vessel until acceptance by the Government of the 
work performed.
    (g) Except as otherwise provided in this contract, when the vessel 
is in the custody of the contractor or in dry dock or on a marine 
railway and the temperature becomes as low as 35 degrees Fahrenheit, the 
contractor shall keep all pipelines, fixtures, traps, tanks, and other 
receptacles on the vessel drained to avoid damage from freezing, or if 
this is not practicable, the vessel shall be kept heated to prevent such 
damage. The vessel's stern tube and propeller hubs shall be protected 
from frost damage by applied heat through the use of a salamander or 
other proper means, as approved by the COR.
    (h) Whenever practicable, the work shall be performed in a manner 
which does not interfere with the berthing and messing of personnel 
attached to the vessel. The contractor shall ensure that assigned 
personnel have access to the vessel at all times. It is understood that 
such personnel will not interfere with the work or the contractor's 
workers.
    (i) The Government does not guarantee the correctness of the 
dimensions, sizes, and shapes shown in any sketches, drawings, plans or 
specifications prepared or furnished by the Government. Prior to 
submitting an offer, it is the responsibility of the bidder/offeror to 
verify the dimensions, sizes, and shapes in materials provided by the 
Government. Where practical, the Government will make the vessel 
available for inspection prior to bid opening or the date for receipt of 
proposals. If the contractor, as a result of inspection or otherwise, 
discovers any error in the sketches, drawings, plans or specifications, 
it shall immediately inform the Contracting Officer of the error and 
proceed in accord with instructions received from the Contracting 
Officer. The Government is not liable for any claims or charges 
resulting

[[Page 750]]

from additional work performed by the contractor as a result of a patent 
ambiguity in the sketches, drawings, plans or specifications that was 
not brought to the attention of the Contracting Officer. The contractor 
shall be responsible for the correctness of the shape, sizes and 
dimensions of parts furnished by the contractor under the contract.
    (j) The contractor shall at all times keep the site of the work on 
the vessel free from accumulation of waste material or rubbish caused by 
contractor employees or the work, and at the completion of the work 
shall remove all rubbish from and about the site of the work and shall 
leave the work and its immediate vicinity ``broom-clean'' unless more 
exactly specified in this contract.
    (k) While in drydock or on a marine railway, the contractor shall be 
responsible for the closing, before the end of working hours, of all 
valves and openings upon which work is being done by its workers when 
such closing is practicable. The contractor shall establish a list and 
keep the COR cognizant of the closure status of all valves and openings 
upon which the contractor's workers have been working.
    (l) Without additional expense to the Government, the contractor 
shall employ specialty subcontractors where required by the 
specifications or when necessary for satisfactory performance of the 
work.
    (m)(1) Unless otherwise stated in the contract, the contractor shall 
notify the COR at least 72 hours in advance:
    (i) Prior to starting inspections or tests; and
    (ii) When supplies will be ready for Government inspection.
    (2) Such notification shall be provided either verbally or in 
writing at the discretion of the COR.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-71  Method of payment and invoicing instructions for ship 
          repair.

    As prescribed in 48 CFR 1371.102, insert the following clause:

 Method of Payment and Invoicing Instructions for Ship Repair (APR 2010)

    (a) The Government will make payment under this contract based on a 
percentage of completion. The contractor may invoice for the percentage 
completed for each work item as work progresses. The amount invoiced 
shall be calculated based on prices stated in the Schedule, as follows: 
A work item may not be invoiced until the percentage complete reaches 25 
percent. Future invoices for that work item have no limitation as to the 
percentage of completion required before invoicing, but in no event may 
invoices be submitted more frequently than every 2 weeks, or for amounts 
less than $10,000, unless it is the final payment. The minimum 
percentage of completion (25%) to be reached prior to billing each work 
item may be waived by the Contracting Officer for large dollar work 
items on a case-by-case basis.
    (b) Invoices submitted by the contractor which are deemed not 
proper, in accordance with FAR 52.232-25, will be returned. Invoices 
shall include:
    (1) Name and Address of the contractor;
    (2) DUNS Number;
    (3) Invoice Date;
    (4) Contract Number/Modification Number;
    (5) CLIN/Work Item Number, to include: Description, Quantity, Unit 
of Measure, Unit Price and Extended Price;
    (6) Shipping and Payment Terms; and,
    (7) Contractor Point of Contact, including: Name, Title, Phone 
Number, and Mailing Address;
    (8) The percentage of completion for each CLIN/work item identified;
    (9) Name of the Contracting Officer ;
    (10) Ship name;
    (11) The overall percentage and dollar amount previously billed, 
currently billed and unbilled.
    (c) When invoicing for changed work, the contractor shall identify 
it as a contract change and shall identify the modification authorizing 
the change, and the CLIN/Work Item associated with the change.
    (d) All items of work invoiced under this contract will be verified 
and confirmed by the Contracting Officer's Representative as accurate 
and complete and approved by the designated billing office before 
payment will be made.
    (e) Mail the original invoice to:
[insert]
    (f) The contractor's final invoice submitted under the contract must 
be marked as follows: ``THIS INVOICE CONSTITUTES THE FINAL INVOICE--UPON 
PAYMENT OF THIS INVOICE NO OTHER MONIES ARE DUE UNDER CONTRACT NUMBER --
--------------.'' (To be assigned at contract award)

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-72  Additional Item Requirements (AIR)--growth work

    As prescribed in 48 CFR 1371.103, insert the following clause:

[[Page 751]]

       Additional Item Requirements (Air)--Growth Work (APR 2010)

    (a) This clause applies to Additional Item Requirements (AIR), also 
known as growth and emergent work ordered by the Contracting Officer 
pursuant to the Changes--Ship Repair clause or mutually agreed upon by 
the parties. The contractor shall perform AIR at the labor billing rates 
designated in the Schedule, as described in paragraph (c) of this 
clause. The AIR handling fee designated in the Schedule shall be the 
sole fee used for direct material purchases and subcontractor handling. 
The estimated quantity of labor hours and handling fees represent the 
Government's best estimate for growth that may be required throughout 
the contract performance period. All growth work shall be paid at the 
prices stated in the Schedule.
    (b) The contractor shall take into account the potential for 
ordering all estimated AIR quantities in developing the Production 
Schedule. The ordering of any portion of the AIR quantities does not in 
itself warrant an extension to the original contract completion date; 
however, for planning purposes, the Government anticipates ordering AIR 
in accordance with the following schedule:
    (1) No more than 75% of the hours during the first half of the 
contract period of performance.
    (2) No more than 50% of the hours during the third quarter of the 
contract period of performance.
    (3) No more than 30% of the hours during the fourth quarter of the 
contract period of performance.
    (c) The AIR labor rate shall be a flat, hourly rate to cover the 
entire effort and shall be burdened to include:
    (1) Direct production labor hour functions only. Direct production 
labor hours are hours of skilled labor at the journeyman level expended 
in direct production. Direct production is defined as work performed by 
a qualified craftsman that is directly related to the alteration, 
modification, or repair of the item or system identified as needing 
alteration, modification, or repair. The following functions are 
identified as direct production: Abrasive Cleaning/Water Blasting, Tank 
Cleaning, Welding, Burning, Brazing, Blacksmithing, Machining (inside 
and outside), Carpentry, Electrical/Electronic Work, Crane Operation, 
Shipfitting, Lagging/Insulating, Painting, Boilermaking, Pipe Fitting, 
Engineering (Production), Sheetmetal Work, Staging/Scaffolding, and 
Rigging.
    (2) Non-production labor hours (whether charged directly or 
indirectly by contractor's accounting system) shall be for labor in 
support of production functions. For purposes of this clause, support 
functions are defined as functions that do not directly contribute to 
the alteration, modification, or repair of the item or system identified 
as needing alteration, modification, or repair. Necessary support 
functions should be priced into the burdened rate for production labor 
hours. Examples of support functions include: Testing, Quality Assurance 
(inspection), Engineering (support), Planning (including involvement of 
craft foreman/journeyman in planning a task), Estimating (including 
determination of necessary materials and equipment needed to perform a 
task), Material Handling, Set-up (moving tools and equipment from shop 
to ship to perform a task), Fire Watch, General Labor (including general 
support of journeyman tasks), Cleaning (including debris pickup and 
removal), Surveying, Security, Transportation, Supervision, and Lofting 
(sail/pattern making).
    (d) Additional Item Requirements do not include replacement work 
performed pursuant to the Inspection and Manner of Doing Work or 
Guarantees clauses.
    (e) It is the Government's intention to award any growth work 
identified during the repair to the contractor, if a fair and reasonable 
price can be negotiated for such work, based upon Schedule rates. If a 
fair and reasonable price cannot be negotiated, the Government may, at 
its discretion, obtain services outside of the contract. Such services 
may be performed while the ship is undergoing repair in the contractor's 
facility pursuant to the Access to Vessels clause.
    (f) The contractor shall submit to the Contracting Officer the 
following information in all AIR proposals:
    (1) Number of labor hours estimated; broken down by specific direct 
production labor category.
    (2) Material estimates, individually broken out and priced. When 
requested by the Contracting Officer, material quotes shall be provided.
    (3) Subcontractor estimates, individually broken out and priced 
along with the actual subcontractor quotes. The requirement to submit 
subcontractor quotes may be waived if deemed appropriate by the 
Contracting Officer.
    (4) Material/subcontractor handling fee and the basis for the fee.
    (g) The contractor shall not be entitled to payment for any hours 
ordered pursuant to this clause until such time as a written contract 
modification is executed.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-73  Schedule of work.

    As prescribed in 48 CFR 1371.104, insert the following clause.

[[Page 752]]

                       Schedule of Work (APR 2010)

    (a) Notwithstanding other requirements specified in this contract, 
the contractor shall provide to the Contracting Officer and COR the 
following documents within five (5) working days of the vessel's arrival 
at the contractor's facility:
    (1) Production Schedule.
    (2) Work Package Network.
    (3) Total Manpower Loading Curve.
    (4) Trade Manning Curves.
    (5) Subcontracting List.
    (b) The Production Schedule shall list the earliest, latest, and 
scheduled start and completion date for each work item awarded and shall 
identify the critical path. The Work Package Network shall show the work 
items, milestones, key events, and activities and shall clearly identify 
the critical path. The Total Manpower Loading Curve shall show the 
required manning for the duration of the contract. The Trade Manning 
Curves shall show the required manning for each trade for the duration 
of the contract. The Subcontracting List shall show work items, 
milestones, key events, and activities to be accomplished by 
subcontractors.
    (c) Additional Item Requirements ordered and agreed upon, whether or 
not yet formalized via a change order (contract modification), shall be 
added to the Production Schedule, Trade Manning Curves, and 
Subcontracting List and submitted to the Contracting Officer and COR at 
each weekly Progress Meeting. Any anticipated or unanticipated deviation 
(greater than five (5) calendar days) from the Production Schedule shall 
be immediately brought to the attention of the Contracting Officer and 
COR.
    (d) Any unauthorized deviation in the Production Schedule which 
results in a delay in the completion of work on a vessel past the 
established performance period completion date may entitle the 
Government to remedies for late performance, including, but not limited 
to, liquidated damages.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-74  Foreseeable cost factors pertaining to different 
          shipyard locations.

    As prescribed in 48 CFR 1371.105, insert the following provision:

Foreseeable Cost Factors Pertaining to Different Shipyard Locations (APR 
                                  2010)

    (a) The Contracting Officer will evaluate certain foreseeable costs 
that will vary with the location of the commercial shipyard to be used 
by bidders/offerors under this solicitation. Costs will be calculated 
based on the bidder's/offeror's shipyard location and these costs will 
be added, for the purposes of evaluation only, to the bidder's/offeror's 
overall price.
    (b) These elements of foreseeable costs consist of the following:
    (1) Vessel Transit: (i) Vessel delivery costs will be based on one 
round trip from the vessel's homeport of ---------------- to the 
contractor's facility at a cruising speed of ---- knots. Distances will 
be based on the NOAA publication, ``Distance Between U.S. Ports''.
    (ii) Daily vessel operational cost to navigate the vessel between 
its homeport and the contractor's offered place of performance is $----
---- per day. The number of days to transit to the contractor's offered 
place of performance from the vessel's homeport will be multiplied by 
the per-day operational cost.
    (iii) No operational costs will be applied if the ship can be 
delivered to the contractor's facility from its homeport within eight 
(8) hours port-to-port. If the delivery time exceeds eight (8) hours, 
but is less than 24 hours, it will be considered one full day. Any 
fraction of subsequent day(s) will be considered as a full day.
    (2) Shore Leave Costs: If the contractor's facility is outside of a 
50-mile radius of the vessel's homeport--
    (i) An assessment of $-------- for each 15-day period or portion 
thereof, beginning with the vessel's departure from the homeport and 
concluding with the vessel's return to homeport.
    (ii) There will be an additional transportation cost for ------ 
vessel crew members for one (1) round trip(s) between the contractor's 
offered place of performance and the vessel's homeport at the cost of 
coach-type airfare.
    (3) Travel and Per Diem Costs: If the contractor's facility is 
outside of a 50-mile radius of the vessel's homeport--
    (i) There will be a transportation cost for one (1) Contracting 
Officer's Representative (COR) for ---- round trip(s) between the 
contractor's offered place of performance and the COR's official duty 
station at the cost of coach-type airfare.
    (ii) There will be a per diem expense for ---- calendar days to 
support one (1) COR while in the city of the place of contract 
performance, to be determined in accordance with the Joint Federal 
Travel Regulations (JFTR). The cost of car rental for the estimated 
performance period will also be included.
    (iii) There will be a transportation cost for one (1) Contracting 
Officer for ---- round trip(s) between the Contracting Officer's 
official duty station and the contractor's offered place of performance 
at the cost of coach-type airfare, plus per diem expenses and a rental 
car.

[[Page 753]]

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-75  Delivery and shifting of the vessel.

    As prescribed in 48 CFR 1371.106, insert the following clause:

             Delivery and Shifting of the Vessel (APR 2010)

    (a) The Government shall deliver the vessel to the contractor, at 
the location specified in the contract.
    (b) Whether the specified location of performance is the 
contractor's own facility or any other authorized facility, it shall be 
understood to mean the fairway of the facility. The contractor shall 
provide necessary tugs and pilot services to move the vessel from the 
fairway to the pier or dock, and, upon completion of all work, from the 
pier or dock to the fairway of the facility.
    (c) While the vessel is in the possession of the contractor, any 
necessary movement of the vessel incidental to the work specified in the 
contract shall be furnished by the contractor without additional charge 
to the Government.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-76  Performance.

    As prescribed in 48 CFR 1371.107, insert the following clause:

                         Performance (APR 2010)

    (a) The contractor shall not commence work until a notice to proceed 
has been issued by the Contracting Officer.
    (b) The Government shall deliver the vessel described in the 
contract at such time and location as may be specified in the contract. 
Upon completion of the work, the Government shall accept delivery of the 
vessel at such time and location as may be specified in the contract.
    (c) Without additional charge to the Government, and without 
specific requirement in the contract, the contractor shall:
    (1) Make available, at the facility, to personnel of the vessel 
while in drydock or on a marine railway, sanitary facilities adequate 
for the number of personnel using them and acceptable to the Contracting 
Officer;
    (2) Supply and maintain, in such condition as the Contracting 
Officer may reasonably require, suitable brows and gangways from the 
pier, drydock or marine railway to the vessel;
    (3) Perform, or pay the cost of, any repair, reconditioning or 
replacement made necessary as the result of the use by the contractor of 
any of the vessel's machinery, equipment or fittings, including, but not 
limited to, winches, pumps, riggings, or pipe lines; and
    (4) Furnish suitable offices, office equipment and telephones at or 
near the site of the work as the Contracting Officer reasonably requires 
for personnel designated by the Government.
    (d) Except as otherwise provided in the contract, the contractor 
shall furnish all necessary material, labor, supervision, services, 
equipment, tools, supplies, power, accessories, facilities, and other 
things and services necessary for accomplishing the work.
    (e) The contractor shall conduct dock and sea trials of the vessel 
as required by the contract. Unless otherwise expressly provided in the 
contract, during the conduct of these trials the vessel shall be under 
the control of the vessel's commander and crew with representatives of 
the contractor and the Government on board to determine whether the work 
provided by the contractor has been satisfactorily performed. Dock and 
sea trials not specified which the contractor requires for its own 
benefit shall not be undertaken by the contractor without prior notice 
to and approval of the Contracting Officer; any such dock or sea trial 
shall be conducted at the risk and expense of the contractor. The 
contractor shall provide and install all fittings and appliances which 
may be necessary for the dock and sea trials to enable the 
representatives of the Government to determine whether the requirements 
of the contract plans and specifications have been met. The contractor 
shall also be responsible for the care, installation and removal of any 
instruments and apparatus furnished by the Government for such trials.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-77  Delays.

    As prescribed in 48 CFR 1371.108, insert the following clause:

                            Delays (APR 2010)

    When, during the performance of this contract, the contractor is 
required to delay the work on a vessel temporarily, due to orders or 
actions of the Government respecting stoppage of work to permit shifting 
the vessel, stoppage of hot work to permit bunkering, fueling, embarking 
or debarking of passengers or loading or discharging of cargo, and the 
contractor is not given sufficient advance notice or is otherwise unable

[[Page 754]]

to avoid incurring additional costs on account thereof, an equitable 
adjustment may be made in the contract. Any such request for equitable 
adjustment shall be asserted in writing as soon as practicable after the 
delay or disruption, but not later than the day of final payment under 
the contract.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-78  Minimization of delay due to Government furnished 
          property.

    As prescribed in 48 CFR 1371.109, insert the following clause:

  Minimization of Delay Due to Government Furnished Property (APR 2010)

    (a) In order to assure timely performance under this contract, it is 
imperative that delay in the contract's performance period resulting 
from late, damaged, or unsuitable Government furnished property be held 
to an absolute minimum. In order to achieve minimization of delay, it is 
agreed that:
    (1) Subject to adjustment as provided in paragraph (b) of this 
clause, the Government shall deliver each item of Government furnished 
property to the contractor on or before the date specified in the 
contract or, if later, in sufficient time for the contractor to meet the 
contract performance period.
    (2) The Government may forego furnishing any item of Government 
property to the contractor. In that event, the contractor shall prepare 
the vessel in terms of piping, wiring, structure, foundation, 
ventilation, and any other pre-installation requirements of the item, so 
that the work on the vessel may continue without delay and disruption 
resulting from the absence of the item. If the Government does not 
furnish an item designated as Government furnished property, the 
contract price may be adjusted accordingly.
    (b) The delivery or performance dates for the supplies or services 
to be furnished by the contractor under this contract are based upon the 
expectation that Government furnished property suitable for use (except 
for such property furnished ``as is'') will be delivered to the 
contractor at the time stated in the specification or, if not so stated, 
in sufficient time to enable the contractor to meet such delivery or 
performance dates. If the Government furnished property is not furnished 
in the time stated in the contract, or, if a date is not specified, and 
the late delivery does not give the contractor sufficient time to enable 
the contractor to meet required contract delivery or performance dates, 
the contractor shall notify the Government in writing of the late 
delivery. Notification shall include cost and schedule impacts, 
including delays and disruptions to schedules. This notification shall 
be submitted as soon as practical or known.
    (c) The provisions in subsection (b) of this clause and in FAR 
52.245-1, if applicable, provide the exclusive remedies to the 
contractor resulting from delay in delivery of Government furnished 
property or delivery of such property in a condition not suitable for 
its intended use.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-79  Liability and insurance.

    As prescribed in 48 CFR 1371.110, insert the following clause:

                   Liability and Insurance (APR 2010)

    (a) The contractor shall exercise reasonable care and use its best 
efforts to prevent accidents, injury or damage to all employees, persons 
and property, in and about the work, and to the vessel or part thereof 
upon which work is done.
    (b) The contractor shall be responsible for and make good at its own 
cost and expense any and all loss of or damage of whatsoever nature to 
the vessel (or part thereof), its equipment, movable stores and cargo, 
and Government-owned material and equipment for the repair, completion, 
alteration of or addition to the vessel in the possession of the 
contractor, whether at the plant or elsewhere, arising or growing out of 
the performance of the work, except where the contractor can 
affirmatively show that such loss or damage was due to causes beyond the 
contractor's control, was proximately caused by the fault or negligence 
of agents or employees of the Government, or which loss or damage the 
contractor by exercise of reasonable care was unable to prevent. 
However, the contractor shall not be responsible for any such loss or 
damage discovered after redelivery of the vessel unless the loss or 
damage is discovered within 90 days after redelivery of the vessel and 
loss or damage is affirmatively shown to be the result of the fault or 
negligence of the contractor. To induce the contractor to perform the 
work for the compensation provided, it is specifically agreed that the 
contractor's aggregate liability on account of loss of or damage to the 
vessel (or part thereof), its equipment, movable stores and cargo and 
Government-owned materials and equipment, shall in no event exceed the 
sum of $1,000,000.00. As to the contractor, the Government assumes the 
risk of loss or damage to the Government-owned vessel (or part thereof), 
its equipment, movable stores and cargo and said Government-owned 
materials and equipment in excess of $1,000,000.00. This

[[Page 755]]

assumption of risk includes but is not limited to loss or damage from 
negligence of whatsoever degree of the contractor's servants, employees, 
agents or subcontractors, but specifically excludes loss or damage from 
willful misconduct or lack of good faith on the part of contractor's 
personnel, who have supervision or direction of all or substantially all 
of the contractor's business, or all or substantially all of the 
contractor's operation at any one plant. However, as to such risk 
assumed and borne by the Government, the Government shall be subrogated 
to any claim, demand or cause of action against third persons which 
exists in favor of the contractor, and the contractor shall, if 
required, execute a formal assignment or transfer of claims, demands or 
causes of action. Nothing contained in this paragraph shall create or 
give rise to any right, privilege or power in any person except the 
contractor, nor shall any person (except the contractor) be or become 
entitled thereby to proceed directly against the Government, or join the 
Government as a co-defendant in any action against the contractor 
brought to determine the contractor's liability, or for any other 
purpose.
    (c) The contractor indemnifies and holds harmless the Government, 
its agencies and instrumentalities, and the vessel against all suits, 
actions, claims, costs or demands (including without limitation, suits, 
actions, claims, costs or demands resulting from death, personal injury 
and property damage) to which the Government, its agencies and 
instrumentalities, or the vessel may be subject or put by reason of 
damage or injury (including death) to the property or person of anyone 
other than the Government, its agencies, instrumentalities and 
personnel, or the vessel, arising or resulting in whole or in part from 
the fault, negligence, wrongful act or wrongful omission of the 
contractor, or any subcontractor, its or their servants, agents or 
employees; provided that the contractor's obligation to indemnify under 
this paragraph (c) shall not exceed the sum of $1,000,000.00 on account 
of any one accident or occurrence in respect of any one vessel. Such 
indemnity shall include, without limitation, suits, actions, claims, 
costs or demands of any kind whatsoever, resulting from death, personal 
injury or property damage occurring during the period of performance of 
work on the vessel or within 90 days after redelivery of the vessel. Any 
new equipment warranties that extend beyond the 90 days after redelivery 
of the vessel shall be assigned to the Government upon redelivery of the 
vessel. With respect to any such suits, actions, claims, costs or 
demands resulting from death, personal injury or property damage 
occurring after the expiration of such period, the rights and 
liabilities of the Government and the contractor shall be as determined 
by other provisions of this contract and by law; provided that such 
indemnity shall apply to death occurring after such period which results 
from any personal injury received during the period covered by the 
contractor's indemnity as provided herein.
    (d) The contractor shall, at its own expense, procure, and 
thereafter maintain such casualty, accident and liability insurance, in 
such forms and amounts as may be approved by the Contracting Officer, 
insuring the performance of its obligations under paragraph (c) of this 
clause. In addition, the contractor shall at its own expense procure and 
thereafter maintain such ship repairer's legal liability insurance as 
may be necessary to insure the contractor against its liability as ship 
repairer in the amount of $1,000,000.00, or the value of the vessel as 
determined by the Contracting Officer, whichever is the lesser, with 
respect to each vessel on which work is performed. The contractor shall 
cause the Government to be named as an additional insured under any and 
all liability insurance policies, however, at the discretion of the 
Contracting Officer, such insurance need not be procured whenever the 
job order requires work on parts of a vessel only and the work is to be 
performed at a plant other than the site of the vessel. Further, the 
contractor shall procure and maintain in force Worker's Compensation 
Insurance (or its equivalent) covering its employees engaged in the work 
and shall ensure the procurement and maintenance of such insurance by 
all subcontractors engaged in the work. The contractor shall provide 
evidence of insurance as required by the Government.
    (e) The contractor shall receive no allowance in the contract price 
for inclusion of any premium expense or charge for any reserve made on 
account of self-insurance for coverage against any risk assumed by the 
Government under this clause.
    (f) As soon as practicable after the occurrence of any loss or 
damage, the risk of which the Government has assumed, written notice of 
the damage shall be given by the contractor to the Contracting Officer. 
The notice shall contain full particulars of the loss or damage. If 
claim is made or suit is brought thereafter against the contractor as 
the result or because of such event, the contractor shall immediately 
deliver to the Government every demand, notice, summons or other process 
received by it or its representatives. The contractor shall cooperate 
with the Government, and, upon the Government's request, shall assist in 
effecting settlements, securing and giving evidence; obtaining the 
attendance of witnesses, and other assistance required in the conduct of 
suits. The Government shall pay to the contractor the expense, other 
than the cost of maintaining the contractor's usual organization, 
incurred in this assistance. Except at

[[Page 756]]

its own cost, the contractor shall not voluntarily make any payment, 
assume any obligation or incur any expense not imperative for the 
protection of the vessel or vessels at the time of the event.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-80  Title.

    As prescribed in 48 CFR 1371.111, insert the following clause:

                            Title (APR 2010)

    (a) Title to all materials and equipment acquired, produced for, or 
allocated to the performance of this contract and incorporated in or 
placed on the vessel or any part thereof, shall vest in the Government.
    (b) The contractor shall assume, without limitation, the risk of 
loss for any contractor-furnished materials and equipment until final 
acceptance by the Government of work performed under the contract.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-81  Discharge of liens.

    As prescribed in 48 CFR 1371.112, insert the following clause:

                      Discharge of Liens (APR 2010)

    The contractor shall immediately discharge or cause to be discharged 
any lien or right in rem of any kind, other than in favor of the 
Government, which at any time exists or arises in connection with work 
done or materials furnished under the contract. If any such lien or 
right in rem is not immediately discharged, the Government may discharge 
or cause to be discharged such lien or right at the expense of the 
contractor.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-82  Department of Labor occupational safety and health 
          standards for ship repair.

    As prescribed in 48 CFR 1371.113, insert the following clause:

 Department of Labor Occupational Safety and Health Standards for Ship 
                            Repair (APR 2010)

    The contractor, in performance of all work under the contract, shall 
comply with the requirements of 29 CFR 1910.15. Nothing contained in 
this contract shall be construed as relieving the contractor from any 
obligations which it may have for compliance with the aforesaid 
regulations.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-83  Government review, comment, acceptance and approval.

    As prescribed in 48 CFR 1371.114, insert the following clause:

     Government Review, Comment, Acceptance and Approval (APR 2010)

    (a) Documentation, including drawings and other engineering products 
and reports, required by the contract to be submitted for review, 
comment, acceptance or approval will be acted upon by the Government 
within 30 calendar days after receipt by the Government, unless another 
period of time is specified.
    (b) The Government shall respond to Condition Reports, as defined in 
the Specifications, within five (5) working days, unless the Government 
notifies the contractor that a longer period of time will be required. 
If the contractor requests a response in less than five (5) working 
days, the Government will attempt to accommodate the request, but does 
not guarantee a response in less than the time limits stated above.
    (c) Review, comment, acceptance or approval by the Government as 
required under this contract and applicable specifications shall not 
relieve the contractor of its obligation to comply with the 
specifications and with all other requirements of the contract, nor 
shall it impose upon the Government any liability it would not have had 
in the absence of such review, comment and acceptance or approval.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-84  Access to the vessel.

    As prescribed in 48 CFR 1371.115, insert the following clause:

[[Page 757]]

                     Access to the Vessel (APR 2010)

    (a) As authorized by the Contracting Officer, a reasonable number of 
officers, employees and personnel designated by the Government, or 
representatives of other contractors and their subcontractors shall have 
admission to the facility and access to the vessel at all reasonable 
times to perform and fulfill their respective obligations to the 
Government on a noninterference basis. The contractor shall make 
reasonable arrangements to provide access for these personnel to office 
space, work areas, storage or shop areas, and other facilities and 
services reasonable and necessary to perform their duties. All such 
personnel shall comply with contractor rules and regulations governing 
personnel at its shipyard, including those regarding safety and 
security.
    (b) The contractor further agrees to allow a reasonable number of 
officers, employees, and designated personnel of offerors on other 
contemplated work, the same privileges of admission to the contractor's 
facility and access to the vessel(s) on a noninterference basis, subject 
to contractor rules and regulations governing personnel in its shipyard, 
including those regarding safety and security.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-85  Documentation of requests for equitable adjustment.

    As prescribed in 48 CFR 1371.116, insert the following clause:

      Documentation of Requests for Equitable Adjustment (APR 2010)

    (a) For the purpose of this clause, the term ``change'' includes not 
only a change made pursuant to a written order designated as a ``change 
order,'' but also any act or omission to act on the part of the 
Government where a request is made for equitable adjustment.
    (b) Whenever the contractor requests or proposes an equitable 
adjustment to the contract price for a change or an act or omission on 
the part of the Government, the request shall include a breakdown of the 
price adjustment in such form and supported by such reasonable detail as 
the Contracting Officer may request. As a minimum, the contractor shall 
provide a breakdown of direct labor hours, labor dollars, overhead, 
material, subcontracts, contingencies and profit for each change and a 
justification for any extension of the delivery date.
    (c) Whenever the contractor requests or proposes an equitable 
adjustment of $100,000 or greater gross (aggregate increases and/or 
decreases) for a change made pursuant to a written order designated as a 
``change order,'' or whenever the contractor requests an equitable 
adjustment in any amount for any other act or omission to act on the 
part of the Government, the proposal supporting such request shall 
contain the following information for each individual item or element of 
the request:
    (1) A description of the unperformed work required by the contract 
before the change which has been deleted by the change and the work 
deleted by the change that already has been completed in whole or in 
part. The description shall include a list of components, equipment, and 
other identifiable property involved. Also, the status of manufacture, 
procurement, or installation of such property shall be indicated. A 
separate description shall be furnished for design and production work. 
Items of raw material, purchased parts, components, and other 
identifiable hardware which are made excess by the change, and which are 
not to be retained by the contractor, are to be listed for later 
disposition;
    (2) A description of the work necessary to undo work already 
completed which has been deleted by the change;
    (3) A description of the work substituted or added by the change 
that was not required by the terms of the contract before the change. A 
list of components and equipment (not bulk material or items) involved 
should be included. A separate description shall be furnished for design 
work and production work;
    (4) A description of any interference or inefficiency encountered in 
performing the change;
    (5) A description of disruption attributable solely to the change, 
which shall include the following information:
    (i) A specific description of each element of disruption which 
states how the work has been, or will be, disrupted;
    (ii) The calendar time period when disruption occurred, or will 
occur, illustrated via critical path analysis;
    (iii) The area(s) aboard ship where disruption occurred, or will 
occur;
    (iv) The trade(s) disrupted, with a breakdown of man-hours for each 
trade;
    (v) The scheduling of trades before, during, and after the period of 
disruption;
    (vi) A description of measures taken to lessen the disruptive effect 
of the change.
    (6) The delay in delivery attributable solely to the change;
    (7) A description of other work attributed to the change;
    (8) A narrative statement of the direct causal relationship between 
any alleged Government act or omission and the claimed result, cross-
referenced to the detailed information required above; and
    (9) A statement setting forth a comparative enumeration of the 
amounts ``budgeted''

[[Page 758]]

for the cost elements, including the materials cost, labor hours, and 
indirect costs pertinent to the change estimated by the contractor in 
preparing its proposal(s) for this contract, and the amounts claimed to 
have been incurred, or projected to be incurred, corresponding to each 
such ``budgeted cost'' element.
    (10) At the time of agreement upon the price of the equitable 
adjustment, the contractor shall submit a signed Certificate of Current 
Cost or Pricing Data.
    (d) Pending execution of a bilateral agreement or the direction of 
the Contracting Officer pursuant to the Changes clause, the contractor 
shall proceed diligently with contract performance without regard to the 
effect of any such proposed change.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-86  Lay days.

    As prescribed in 48 CFR 1371.117, insert the following clause:

                           Lay Days (APR 2010)

    (a) A lay day is defined as an additional day on dry dock or marine 
railway caused by a Government-issued change. Reimbursement for lay days 
shall be paid at the rate stated in the Schedule.
    (b) No amount for lay day time shall be paid until all contract line 
items (including optional items) that require drydocking of the vessel 
have been completed. Lay days for work ordered pursuant to the 
Additional Item Requirements Clause shall not be compensable unless all 
dry dock work included in the contract line items is complete.
    (c) Days of hauling out and floating, whatever the hour, shall not 
be paid as lay day time, and days when no work is performed by the 
contractor shall not be paid as lay day time. Days in which work is 
performed that are considered normal ``non-work'' days (weekends or 
holidays) shall not be paid as lay day time if the ship would have 
otherwise been in dry dock.
    (d) Payment of lay day time shall constitute complete compensation 
for all costs associated with lay days except for costs directly related 
to the changed work.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-87  Changes--ship repair.

    As prescribed in 48 CFR 1371.118, insert the following clause:

                     Changes--Ship Repair (APR 2010)

    (a) The Contracting Officer may, at any time, by written order, and 
without notice to the sureties, if any, make changes within the general 
scope of this contract, in any one or more of the following:
    (1) Drawings, designs, or specifications, when the supplies to be 
furnished are to be specially manufactured for the Government in 
accordance with the drawings, designs, or specifications;
    (2) Method of shipment or packing;
    (3) Place of performance of the work;
    (4) Time of commencement or completion of the work; and
    (5) Other requirements within the general scope of the contract.
    (b) If any such change causes an increase or decrease in the cost 
of, or the time required for, performance of any part of the work under 
this contract, whether changed or not changed by the order, the 
Contracting Officer shall make an equitable adjustment in the contract 
price, the delivery schedule, or both, and shall modify the contract 
accordingly.
    (c) The contractor must submit any proposal for adjustment under 
this clause within 5 days from the date of receipt of the written order. 
At the Contracting Officer's discretion, the 5-day period may be 
shortened. However, if the Contracting Officer decides that the facts 
justify it, the Contracting Officer may receive and act upon a proposal 
submitted before final payment of the contract.
    (d) If the contractor's proposal includes the cost of property 
rendered obsolete or excess by the change, the Contracting Officer shall 
have the right to prescribe the manner of the disposition of the 
property.
    (e) Failure to agree to any adjustment shall be a dispute under the 
Disputes clause. However, nothing in this clause shall excuse the 
contractor from proceeding with the contract as changed.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-88  Guarantees.

    As prescribed in 48 CFR 1371.119, insert the following clause:

                          Guarantees (APR 2010)

    (a) In the event any work performed or materials furnished by the 
contractor under this contract prove defective or deficient within ---- 
days from the date of redelivery of the vessel, the contractor, as 
directed by the Contracting Officer and at its own expense, shall 
correct and repair the deficiency

[[Page 759]]

to the satisfaction of the Contracting Officer.
    (b) The Government shall be entitled to rely upon any guarantee 
secured by the contractor or any sub-contractor covering work done or 
materials furnished which exceeds the ----day period until its 
expiration.
    (c) With respect to any individual work item identified and listed 
as incomplete at the redelivery of the vessel, the guarantee period 
shall run from the date of completion of such item.
    (d) If and when practicable, the Government shall afford the 
contractor an opportunity to effect such corrections and repairs.
    (1) If the Contracting Officer determines it is impracticable or is 
otherwise not advisable to return the vessel to the contractor, or the 
contractor fails to proceed promptly with any such repairs as directed 
by the Contracting Officer, the Contracting Officer may direct that the 
repairs be performed elsewhere, at the contractor's expense.
    (2) Where corrections and repairs are to be made by other than the 
contractor due to nonreturn of the vessel to the contractor, the 
contractor's liability may be discharged by an equitable deduction in 
the price of the contract.
    (e) The contractor's liability shall only extend for an additional 
---- day guarantee period on those defects or deficiencies which it 
corrected. However, this clause does not limit the responsibility or 
relieve the liability of the contractor under the Liability and 
Insurance clause.
    (f) At the Contracting Officer's option, defects and deficiencies 
may be left in their uncorrected condition. In that event, the 
contractor and the Contracting Officer shall agree on an equitable 
deduction in the contract price. Failure to agree upon an equitable 
reduction shall constitute a dispute under the Disputes clause of this 
contract.
    (g) The rights and remedies of the Government provided in this 
clause are in addition to and do not limit any rights afforded to the 
Government by any other clause of the contract. If a defect or 
deficiency that exists at the time of redelivery of the vessel was not 
discovered by a reasonable inspection and is discovered after the 
expiration of the time frame stated in this clause, it is not subject to 
the time limitations stated in this clause.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-89  Temporary services.

    As prescribed in 48 CFR 1371.120, insert the following clause:

                      Temporary Services (APR 2010)

    (a) Temporary services are services incidental to the performance of 
work which are required in the schedule or specifications to be provided 
by the contractor. Temporary services may include the furnishing of 
water, electricity, telephone service, toilet facilities, garbage 
removal, office space, parking places or similar facilities.
    (b) If performance time is extended due to Government-caused delay, 
the contractor may request an equitable adjustment for providing 
temporary services at the rate stated in the Schedule.

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]



Sec. 1352.271-90  Insurance requirements.

    As prescribed in 48 CFR 1371.121, insert the following clause:

                    Insurance Requirements (APR 2010)

    (a) The contractor shall procure and thereafter maintain the 
following insurance:
    (1) Ship contractor's legal liability insurance to insure the risks 
described in paragraph (b) of clause 1352.271-79. This insurance shall 
be for $1,000,000.00.
    (2) Comprehensive general liability insurance and automobile 
insurance to insure the risks described in paragraph (c) of clause 
1352.271-79. This insurance shall be for $1,000,000.00 on account of any 
one accident or occurrence with respect to each vessel, boat, and/or 
barge upon which work is performed. The contractor shall cause the 
Government to be named as an additional insured under any and all 
liability insurance policies.
    (3) Full coverage in accordance with the State Worker's Compensation 
law; and
    (4) Full coverage in accordance with the United States 
Longshoremen's and Harbor Worker's Act.
    (b) As evidence that it has obtained the insurance specified in 
paragraph (a) of this clause, the contractor shall furnish the 
Contracting Officer with a certificate or certificates executed by an 
agent of the insurer authorized to execute such certificates. Such 
certificates shall be furnished prior to commencement of the work. Each 
certificate shall state that (name of insurer) has insured (name of 
contractor) awarded contract number ------------ for repair/alteration 
of (name of vessel) in accordance with the Liability and Insurance 
clause and the Insurance Requirements clause contained herein. Each 
certificate shall set forth that each policy of insurance represented 
thereby will expire on (APR 2010) and that each such policy contains the 
following clause:

[[Page 760]]

    ``It is agreed that in the event of cancellation or any material 
change in the policy adversely affecting the interest of the Government 
in this insurance, 30 days prior written notice will be given to the 
Contracting Officer.''

                             (End of clause)

[75 FR 10570, Mar. 8, 2010; 75 FR 14496, Mar. 26, 2010]

              Subpart 1352.3_Provisions and Clauses Matrix



Sec. 1352.301  Solicitation provisions and contract clauses (Matrix).

[[Page 761]]

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[[Page 762]]


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[[Page 763]]


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[[Page 764]]


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[[Page 765]]


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[[Page 766]]


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[[Page 767]]


[GRAPHIC] [TIFF OMITTED] TR08MR10.006


[[Page 768]]


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[[Page 769]]


[GRAPHIC] [TIFF OMITTED] TR08MR10.008


[[Page 770]]


[GRAPHIC] [TIFF OMITTED] TR08MR10.009


[[Page 771]]



                             PART 1353_FORMS

                         Subpart 1353.1_General

Sec.

Sec. 1353.100 Scope of subpart.

Sec. 1353.107 Obtaining forms.

                  Subpart 1353.2_Prescription of Forms


Sec. 1353.200 Scope of subpart.

Sec. 1353.206 Competition requirements.

                  Subpart 1353.3_Illustration of Forms


Sec. 353.300 Scope of subpart.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                         Subpart 1353.1_General



Sec. 1353.100  Scope of subpart.

    This subpart prescribes DOC forms that are supplemental to those 
provided in FAR Part 53.



Sec. 1353.107  Obtaining forms.

    The DOC forms may be obtained from any DOC contracting office.

                  Subpart 1353.2_Prescription of Forms



Sec. 1353.200  Scope of subpart.

    This subpart prescribes or references DOC forms for use in 
acquisitions. Consistent with FAR 53.200, this subpart is arranged by 
subject matter, in the same order as and keyed to the parts of the CAR 
in which the form usage requirements are addressed.



Sec. 1353.206  Competition requirements.

    As prescribed in 48 CFR 1306.303-70, use Form CD-492, Justification 
for Other Than Full and Open Competition, to support the requirements 
under FAR Subpart 6.3 (see Appendix A: Forms).



Sec. 1353.219  Small business programs.

    Use Form CD-570, Small Business Set-Aside Review, to fulfill and 
document the requirements under FAR 19.5 (see Appendix A: Forms).

                  Subpart 1353.3_Illustration of Forms



Sec. 1353.300  Scope of subpart.

    DOC Forms will not be illustrated in this CAR. Persons wishing to 
obtain copies of DOC forms prescribed in the CAR may do so in accordance 
with 1353.107.

[[Page 772]]

            SUBCHAPTER I_DEPARTMENT SUPPLEMENTAL REGULATIONS

    PART 1370_UNIVERSAL SOLICITATION PROVISIONS AND CONTRACT CLAUSES

                  Subpart 1370.1_Provisions and Clauses

Sec.

Sec. 1370.101 Period of performance.

Sec. 1370.102 Pre-bid/pre-proposal conference and site visit.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                  Subpart 1370.1_Provisions and Clauses



Sec. 1370.101  Period of performance.

    Insert the clause 1352.270-70, Period of Performance, in all 
solicitations and contracts where a period of performance will be 
specified.



Sec. 1370.102  Pre-bid/pre-proposal conference and site visit.

    Insert provision 1352.270-71, Pre-Bid/Pre-Proposal Conference and 
Site Visit, in solicitations where a pre-proposal conference will be 
held. The provision is optional for construction and may be modified as 
necessary. The contracting officer shall include or delete the paragraph 
regarding site visits.

   PART 1371_ACQUISITIONS INVOLVING SHIP CONSTRUCTION AND SHIP REPAIR

                  Subpart 1371.1_Provisions and Clauses

Sec.

Sec. 1371.101 Inspection and manner of doing work.

Sec. 1371.102 Method of payment and invoicing instructions for ship 
          repair.

Sec. 1371.103 Additional item requirements (AIR)--growth work.

Sec. 1371.104 Schedule of work.

Sec. 1371.105 Foreseeable cost factors pertaining to different shipyard 
          locations.

Sec. 1371.106 Delivery and shifting of the vessel.

Sec. 1371.107 Performance.

Sec. 1371.108 Delays.

Sec. 1371.109 Minimization of delay due to government furnished 
          property.

Sec. 1371.110 Liability and insurance.

Sec. 1371.111 Title.

Sec. 1371.112 Discharge of liens.

Sec. 1371.113 Department of Labor occupational safety and health 
          standards for ship repair.

Sec. 1371.114 Government review, comment, acceptance, and approval.

Sec. 1371.115 Access to the vessel.

Sec. 1371.116 Documentation of requests for equitable adjustment.

Sec. 1371.117 Lay days.

Sec. 1371.118 Changes--ship repair.

Sec. 1371.119 Guarantees.

Sec. 1371.120 Temporary services.

Sec. 1371.121 Insurance requirements.

    Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

    Source: 75 FR 10570, Mar. 8, 2010, unless otherwise noted.

                  Subpart 1371.1_Provisions and Clauses



Sec. 1371.101  Inspection and manner of doing work.

    Insert clause 1352.271-70, Inspection and Manner of Doing Work, in 
all solicitations and contracts for ship construction and ship repair.



Sec. 1371.102  Method of payment and invoicing instructions for ship 
          repair.

    Insert clause 1352.271-71, Method of Payment and Invoicing 
Instructions for Ship Repair, in all solicitations and contracts for 
ship repair.



Sec. 1371.103  Additional item requirements (AIR)--growth work.

    Insert clause 1352.271-72, Additional Item Requirements (AIR)--
Growth Work, in all solicitations and contracts for ship repair.



Sec. 1371.104  Schedule of work.

    Insert clause 1352.271-73, Schedule of Work, in all solicitations 
and contracts for ship repair.



Sec. 1371.105  Foreseeable cost factors pertaining to different shipyard 
          locations.

    Insert provision 1352.271-74, Foreseeable Cost Factors Pertaining to 
Different Shipyard Locations, in all solicitations for ship repair.

[[Page 773]]



Sec. 1371.106  Delivery and shifting of the vessel.

    Insert clause 1352.271-75, Delivery and Shifting of the Vessel, in 
all solicitations and contracts for ship repair to be performed at the 
contractor's facility.



Sec. 1371.107  Performance.

    Insert clause 1352.271-76, Performance, in all solicitations and 
contracts for ship construction and ship repair.



Sec. 1371.108  Delays.

    Insert clause 1352.271-77, Delays, in all solicitations and 
contracts for ship repair.



Sec. 1371.109  Minimization of delay due to Government furnished 
          property.

    Insert clause 1352.271-78, Minimization of Delay Due to Government 
Furnished Property, in all solicitations and contracts for ship 
construction and ship repair.



Sec. 1371.110  Liability and insurance.

    Insert clause 1352.271-79, Liability and Insurance, in all 
solicitations and contracts for ship repair.



Sec. 1371.111  Title.

    Insert clause 1352.271-80, Title, in all solicitations and contracts 
for ship repair.



Sec. 1371.112  Discharge of liens.

    Insert clause 1352.271-81, Discharge of Liens, in all solicitations 
and contracts for ship construction and ship repair.



Sec. 1371.113  Department of Labor occupational safety and health 
          standards for ship repair.

    Insert clause 1352.271-82, Department of Labor Occupational Safety 
and Health Standards for Ship Repair, in all solicitations and contracts 
for ship repair.



Sec. 1371.114  Government review, comment, acceptance, and approval.

    Insert clause 1352.271-83, Government Review, Comment, Acceptance 
and Approval, in all solicitations and contracts for ship construction 
and ship repair.



Sec. 1371.115  Access to the vessel.

    Insert clause 1352.271-84, Access to the Vessel, in all 
solicitations and contracts for ship construction and ship repair.



Sec. 1371.116  Documentation of requests for equitable adjustment.

    Insert clause 1352.271-85, Documentation of Requests for Equitable 
Adjustment, in all solicitations and contracts for ship construction and 
ship repair.



Sec. 1371.117  Lay days.

    Insert clause 1352.271-86, Lay Days, in all solicitations and 
contracts for ship repair.



Sec. 1371.118  Changes--ship repair.

    Insert clause 1352.271-87, Changes--Ship Repair, in all 
solicitations and contracts for ship repair.



Sec. 1371.119  Guarantees.

    Insert clause 1352.271-88, Guarantees, in all solicitations and 
contracts for ship construction and ship repair.



Sec. 1371.120  Temporary services.

    Insert clause 1352.271-89, Temporary Services, in all solicitations 
and contracts for ship repair.



Sec. 1371.121  Insurance requirements.

    Insert clause 1352.271-90, Insurance Requirements, in all 
solicitations and contracts for ship construction and ship repair.

[[Page 775]]



                 CHAPTER 14--DEPARTMENT OF THE INTERIOR




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1401            Department of the Interior Acquisition 
                    Regulation System.......................         777
1402            Definitions of words and terms..............         781
1403            Improper business practices and personal 
                    conflicts of interest...................         783
1404            Administrative matters......................         787
           SUBCHAPTER B--COMPETITIOM AND ACQUISITION PLANNING
1405            Publicizing contract actions................         790
1406            Competition requirements....................         791
1407            Acquisition planning........................         792
1408            Required sources of supplies and services...         792
1409            Contractor qualifications...................         793
1410-1412        [Reserved]

          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1413            Simplified acquisition procedures...........         797
1414            Sealed bidding..............................         797
1415            Contracting by negotiation..................         798
1416            Types of contracts..........................         802
1417            Special contracting methods.................         803
1418            [Reserved]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1419            Small business programs.....................         805
1420-1421        [Reserved]

1422            Application of labor laws to Government 
                    acquisitions............................         808
1423            [Reserved]

1424            Protection of privacy and freedom of 
                    information.............................         811
1425            Foreign acquisition.........................         811
1426            Other socio-economic programs...............         812
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1427            Patents, data, and copyrights...............         816

[[Page 776]]

1428            Bonds and insurance.........................         817
1429            Taxes.......................................         818
1430            Cost accounting standards administration....         818
1431            Contract cost principles and procedures.....         819
1432            Contract financing..........................         819
1433            Protests, disputes, and appeals.............         820
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1434            [Reserved]

1435            Research and development contracting........         823
1436            Construction and architect-engineer 
                    contracts...............................         823
1437            Service contracting.........................         825
1438-1441        [Reserved]

                    SUBCHAPTER G--CONTRACT MANAGEMENT
1442            Contract administration and audit services..         829
1443            Contract modifications......................         829
1444            [Reserved]

1445            Government property.........................         829
1446            Quality assurance...........................         829
1447            [Reserved]

1448            Value engineering...........................         831
1449            Termination of contracts....................         831
1450            Extraordinary contractual actions and the 
                    Safety Act..............................         831
1451            Uses of Government sources by contractors...         832
1452            Solicitation provisions and contract clauses         832
                 SUBCHAPTER H--INDIAN AFFAIRS SUPPLEMENT
1480            Acquisitions under the Buy Indian Act.......         845

[[Page 777]]

                          SUBCHAPTER A_GENERAL

   PART 1401_DEPARTMENT OF THE INTERIOR ACQUISITION REGULATION SYSTEM

               Subpart 1401.1_Purpose, Authority, Issuance

Sec.

Sec. 1401.105-3 Copies.

                      Subpart 1401.2_Administration


Sec. 1401.201 Maintenance of the Federal Acquisition Regulation (FAR).

Sec. 1401.201-1 The Civilian Agency Acquisition Council (CAAC).

              Subpart 1401.3_Agency Acquisition Regulations


Sec. 1401.301 Policy.

Sec. 1401.301-70 Definitions.

Sec. 1401.301-80 Policy.

Sec. 1401.303 Publication and codification.

Sec. 1401.304 Agency control and compliance procedures.

Sec. 1401.370 Acquisition Managers' Partnership.

             Subpart 1401.4_Deviations from the FAR and DIAR


Sec. 1401.403 Individual deviations.

Sec. 1401.404 Class deviations.

Sec. 1401.405 Deviations pertaining to treaties and executive 
          agreements.

     Subpart 1401.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 1401.601 General.

Sec. 1401.602 Contracting officers.

Sec. 1401.602-1 Authority.

Sec. 1401.602-3 Ratification of unauthorized commitments.

Sec. 1401.603 Selection, appointment and termination of appointment.

Sec. 1401.603-1 General.

Sec. 1401.603-2 Selection.

Sec. 1401.603-3 Appointment.

Sec. 1401.670 Contracting officers' representatives.

Sec. 1401.670-1 Contract clause.

                   Subpart 1401.70_Acquisition Reviews


Sec. 1401.7000 Scope of subpart.

Sec. 1401.7001 Review and approval of contract actions.

Sec. 1401.7001-1 Review and approval by Assistant Secretaries.

Sec. 1401.7001-2 Legal review by the Office of the Solicitor.

Sec. 1401.7001-3 Administrative review and approval by bureaus and 
          offices.

Sec. 1401.7001-4 Acquisition performance measurement systems.

Sec. 1401.7001-5 Acquisition Management Reviews (AMRs).

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

               Subpart 1401.1_Purpose, Authority, Issuance



Sec. 1401.105-3  Copies.

    Copies of the Department of the Interior Acquisition Regulation 
(DIAR) and Department-wide internal guidance may be obtained from the 
Office of Acquisition and Property Management, Office of the Secretary, 
U.S. Department of the Interior, 1849 C Street (MS 2607-MIB), NW., 
Washington, DC 20240. Additional information on DOI may be obtained on 
the Internet at http://www.doi.gov/pam.

                      Subpart 1401.2_Administration



Sec. 1401.201  Maintenance of the Federal Acquisition Regulation (FAR).



Sec. 1401.201-1  The Civilian Agency Acquisition Council (CAAC).

    The Department of the Interior is represented on the CAAC by a 
member of the Office of Acquisition and Property Management (PAM).

              Subpart 1401.3_Agency Acquisition Regulations



Sec. 1401.301  Policy.

    (a)(1) Subject to the authorities in paragraph (c) of this section, 
the Department issues acquisition regulations which implement or 
supplement the FAR under the DIAR System. The regulation, as part of the 
FAR system, is issued in accordance with the policy in FAR 1.301(a)(1).
    (2) Subject to the authorities in paragraph (c) of this section, the 
Department also issues internal guidance and instructions under the DIAR 
System in

[[Page 778]]

accordance with the policy in FAR 1.301(a)(2).
    (b) Public participation in promulgating acquisition regulations, 
which are published in the Federal Register, shall follow the 
Department's rulemaking procedures prescribed in Part 318, Chapter 5 of 
the Departmental Manual (318 DM 5) and the procedures in FAR Subpart 
1.5.
    (c) Regulations and internal guidance under the DIAR System are 
issued pursuant to the authority of the Secretary of the Interior under 
5 U.S.C. 301 and 40 U.S.C. 486(c). This authority has been delegated to 
the Assistant Secretary--Policy, Management and Budget under Part 209, 
Chapter 4.1A of the Departmental Manual (209 DM 4.1A).



Sec. 1401.301-70  Definitions.

    (a) ``Implement,'' as used in this subpart, means coverage that 
expands upon or specifically indicates the manner of compliance with 
related higher level coverage.
    (b) ``Supplement,'' as used in this subpart, means material for 
which there is no counterpart in higher-level coverage.



Sec. 1401.301-80  Policy.

    Indian Affairs must use the negotiation authority of the Buy Indian 
Act, 25 U.S.C. 47 to give preference to Indians whenever using that 
authority is authorized and feasible. The Buy Indian Act requires that, 
so far as may be feasible, Indian labor must be employed, and purchases 
of the products of Indian industry may be made in open market at the 
discretion of the Secretary of the Interior. This requirement applies 
notwithstanding any other law and applies to all products of industry, 
including printing.

[78 FR 34271, June 7, 2013]



Sec. 1401.303  Publication and codification.

    (a)(1) Implementing and supplementing regulations issued under the 
DIAR System are codified under Chapter 14 in Title 48, Code of Federal 
Regulations and shall parallel the FAR in format, arrangement, and 
numbering system.
    (2)(i) Department-wide regulations are assigned parts 1401 through 
1479 under 48 CFR, Chapter 14.
    (ii) Where material in the FAR requires no implementation, there 
will be no corresponding number in the DIAR. Thus, there are gaps in the 
DIAR sequence of numbers where the FAR, as written, is deemed adequate. 
Supplemental material shall be numbered as specified in FAR 1.303.
    (3) Bureau-wide regulations are authorized for codification in 
Appendices to Chapter 14, as assigned by the Director, PAM, in 
accordance with 1401.304(a)(3).
    (b) Regulations implementing the FAR or DIAR are numbered using 
Parts 1401 through 1479. Supplemental material is numbered using Parts 
1480 through 1499. Numbers for implementing or supplementing regulations 
by bureaus/offices are preceded by a prefix to the number 14 (indicating 
Chapter 14-DIAR) for the organization indicated by lettered appendices 
as follows:
    (1) Bureau of Indian Affairs--BIA
    (2) Bureau of Reclamation--WBR
    (3) National Business Center--NBC
    (4) Bureau of Land Management--LLM
    (5) U.S. Geological Survey--WGS
    (6) Office of Surface Mining Reclamation & Enforcement--LSM
    (7) Minerals Management Service--LMS
    (8) National Park Service--FNP
    (9) U.S. Fish and Wildlife Service--FWS
    (c) e.g., FAR 1.3 then DIAR 1401.3 [Department level] then in 
Appendix A, BIA 1401.3 [Bureau level].



Sec. 1401.304  Agency control and compliance procedures.

    (a)(1) The DIAR System is under the direct oversight and control of 
the Director, PAM, who is responsible for reviewing and preparing the 
issuance of all Department-wide and bureau-wide acquisition regulations 
published in the Federal Register to ensure compliance with FAR Part 1. 
Review procedures are contained in Part 401 of the Departmental Manual 
(401 DM) and paragraph (a)(3) of this section. One

[[Page 779]]

copy of all material issued shall be furnished to the Director, PAM, at 
the time of issuance.
    (2) The Director, PAM, is also responsible for reviewing and issuing 
unpublished Department-wide internal guidance under the DIAR System.
    (3) A bureau wishing to issue bureau-wide regulations shall submit a 
request to the Director, PAM, for authority to proceed with the 
regulation. The request shall include a justification for the regulation 
and a proposed outline of the regulation and the significant contents of 
the coverage to be included. The Director, PAM, shall review the request 
to determine whether the regulation should be considered for inclusion 
in the DIAR or FAR. If a determination is made that the regulation is 
appropriate for inclusion in the DIAR or FAR, PAM will process the 
regulation accordingly. If a determination is made that the regulation 
is appropriate for inclusion in bureau-wide regulations only, the 
Director, PAM, shall assign an appendix to 48 CFR Chapter 14 and 
authorization shall be granted for the bureau to proceed with the 
regulation in accordance with the procedures referenced in 1401.301(b). 
Rulemaking notices shall be submitted to the Director, PAM, for 
processing of AS/PMB approval under 401 DM 1.4C(3), before the 
appropriate program Assistant Secretary signs them.
    (4) HCAs are responsible for establishing and implementing formal 
procedures for oversight and control of all unpublished bureau-wide 
internal guidance issued to implement FAR or DIAR requirements. The 
Director, PAM, shall review and approve these procedures and they shall 
include:
    (i) Provisions for centralized issuance of all guidance and 
instructions using a directives system;
    (ii) Methods for periodic review and updating of all issuances;
    (iii) Distribution processes which ensure timely receipt by all 
affected contracting offices; and
    (iv) Provisions for maintaining compliance with FAR 1.304.
    (b) The Director, PAM, is responsible for evaluating coverage under 
the DIAR System to determine applicability to other agencies and for 
recommending coverage to the FAR Secretariat for inclusion in the FAR.



Sec. 1401.370  Acquisition Managers' Partnership.

    (a) The Acquisition Managers' Partnership (AMP) is a forum for DOI's 
senior acquisition management community to work cooperatively and 
continuously to improve the management, efficiency and effectiveness of 
its procurement services in support of DOI's mission.
    (b) The AMP consists of the BPCs and representatives from PAM and 
OSDBU.
    (c) The AMP Charter provides that the Chairperson and Associate 
Chairperson are leadership roles that will rotate annually. The AMP 
Chairperson determines when the partnership will meet and develops 
meeting agendas. The Chairperson will distribute the meeting minutes to 
all members.

             Subpart 1401.4_Deviations from the FAR and DIAR



Sec. 1401.403  Individual deviations.

    (a) The Director, PAM, is authorized to approve deviations of FAR 
provisions (see FAR 1.4) or DIAR provisions which affect only one 
contracting action.
    (b) Requests for deviations under paragraph (a) of this section 
shall be submitted by the BPC and include justification for the 
deviation.
    (c) A copy of the approved deviation shall be included in the 
contract file.



Sec. 1401.404  Class deviations.

    (a) The Director, PAM, is authorized to approve class deviations of 
FAR or DIAR provisions which affect more than one contracting action.
    (b) Requests for deviations under paragraph (a) of this section 
shall be submitted by the HCA and include justification for the 
deviation and the number of contracting actions which will be affected.
    (c) For a FAR class deviation the Director, PAM, shall consult with 
the CAAC, as required in FAR 1.404(a)(1), before authorizing the 
deviation.
    (d) A copy of each approved class deviation shall be referenced in 
the contract file.

[[Page 780]]

    (e) Recommended revisions to the FAR and a copy of each approved 
class FAR deviation shall be transmitted to the FAR Secretariat by the 
Director, PAM, as required in FAR 1.404.



Sec. 1401.405  Deviations pertaining to treaties and executive 
          agreements.

    (a) The Director, PAM, is responsible for transmitting to the FAR 
Secretariat the information required in FAR 1.405(d).
    (b) For deviations not authorized by FAR 1.405(b) or (c), the 
Director, PAM, shall process the request for deviation through the FAR 
Secretariat.
    (c) Deviations authorized or requested under paragraph (d) or (e) of 
this section shall be submitted by the HCA to the Director, PAM for 
further action.

     Subpart 1401.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 1401.601  General.

    (a) The authority and responsibility vested in the Secretary to 
contract for authorized supplies and services is delegated to Assistant 
Secretaries.
    (b) The contracting authority and responsibility delegated to 
Assistant Secretaries may be redelegated to heads of bureaus and offices 
under their supervision in accordance with 200 DM 3. Such redelegations 
are published in bureau chapters of the Part 200 series of the 
Departmental Manual.
    (c) Bureau heads and assistant or associate heads thereof (known as 
HCAs as defined in 1402.1) may redelegate contracting authority only as 
prescribed in 1401.603.



Sec. 1401.602  Contracting officers.



Sec. 1401.602-1  Authority.

    Information on the limits of CO's authority shall be maintained by 
the HCA as required in FAR 1.602-1.



Sec. 1401.602-3  Ratification of unauthorized commitments.

    (a) The HCA may redelegate ratification authority to the CCO as 
defined in Subpart 1402.1 and implemented in bureau procedures.
    (b) Legal concurrence is required prior to ratification of 
unauthorized actions for amounts greater than the micropurchase 
threshold.
    (c) Nonratifiable commitments shall be coordinated with the SOL.



Sec. 1401.603  Selection, appointment and termination of appointment.



Sec. 1401.603-1  General.

    BPCs are authorized to select and appoint COs and terminate their 
appointment as prescribed in the Department's Certificate of Appointment 
(COA) Manual. Copies of the manual may be obtained at http://
www.doi.gov/pam/Acqworkfor.html.



Sec. 1401.603-2  Selection.

    COs, regardless of series or organizational placement, must be 
certified at a level commensurate with their appointment level, as 
prescribed in the Department's Federal Acquisition Certification in 
Contracting (FAC-C) Program Manual. Director, PAM, is the approving 
authority for all new and reinstated FAC-C certifications. BPCs are 
authorized to approve renewal FAC-C certifications.



Sec. 1401.603-3  Appointment.

    Purchase card holders may be appointed in writing or in accordance 
with the bureau/office procedures within the constraints of DOI 
Integrated Charge Card Program Policy Manual located at http://
www.doi.gov/pam/chargecard. Additional guidance is available in the GSA 
Smart Pay program at http://www.gsa.gov/smartpay.



Sec. 1401.670  Contracting officers' representatives.

    When a CO elects to appoint an individual to act as an authorized 
representative in the administration of a contract, the CO must notify 
the contractor of the COR appointment in writing, and provide the name 
and contact information of the COR.

[76 FR 50141, Aug. 12, 2011]

[[Page 781]]



Sec. 1401.670-1  Contract clause.

    Insert the clause at 1452.201-70 in solicitations and contracts 
under which a COR will be appointed.

[76 FR 50141, Aug. 12, 2011]

                   Subpart 1401.70_Acquisition Reviews



Sec. 1401.7000  Scope of subpart.

    This subpart sets forth requirements for review and approval of 
contract actions and the conduct of acquisition management reviews.



Sec. 1401.7001  Review and approval of contract actions.



Sec. 1401.7001-1  Review and approval by Assistant Secretaries.

    Contract actions shall be reviewed and approved by Assistant 
Secretaries as prescribed in 211-255 DM. Their approvals shall be 
obtained before requesting any other approvals prescribed in the DIAR.



Sec. 1401.7001-2  Legal review by the Office of the Solicitor.

    The Office of the Solicitor (SOL) will review for legal sufficiency 
selected types and portions of contract actions from Bureaus and offices 
as required by the FAR, DIAR, and Department-wide policy. COs may 
request SOL advice or guidance on acquisition-related matters at any 
time. Matters related to legal sufficiency reviews that cannot be 
resolved between the respective CO and SOL Attorney-Advisor must be 
submitted for resolution to the HCA and the Assistant Solicitor for 
Acquisitions and Intellectual Property, Washington, DC.



Sec. 1401.7001-3  Administrative review and approval by bureaus and 
          offices.

    (a) Administrative review and approval requirements for contract 
actions shall be established by the HCA and issued as internal bureau 
procedures. At a minimum, the review and approval requirements must 
address a representative percentage of the overall contract actions 
within a bureau/office. The procedures shall include:
    (1) Identifying the type and dollar amounts of the actions to be 
reviewed based on the volume and nature of the contracting office 
workload;
    (2) Designating the stage(s) in the acquisition process when the 
review(s) shall be performed;
    (3) Establishing review and approval levels based on the type and 
dollar amount of the action and the capabilities of the reviewing 
office;
    (4) Specifying what information is required to review the action, 
which includes creating a review and approval form and mechanism for 
following up on the correction of deficiencies noted in the review; and
    (5) Providing for periodic review of procedures and revision as 
required, to assure necessary controls are maintained.



Sec. 1401.7001-4  Acquisition performance measurement systems.

    (a) The acquisition performance measurement system is a three-
pronged approach that includes self assessment, statistical data for 
validation and flexible quality reviews and assessment techniques. This 
system is required to:
    (1) Evaluate the effectiveness and efficiency of bureau and office 
acquisition systems;
    (2) Assess the adequacy of policies, procedures and regulations 
governing the acquisition process; and
    (3) Identify and implement changes necessary to improve the systems.
    (b) HCA's are responsible for ensuring contracting activity 
compliance with law and regulations through the review and oversight 
process.



Sec. 1401.7001-5  Acquisition Management Reviews.

    Acquisition Management Reviews (AMRs) are to be conducted using the 
Government Accountability Office's (GAO) ``Framework for Assessing the 
Acquisition Function at Federal Agencies'' available at http://
www.gao.gov/new.items/d05218g.pdf.

                PART 1402_DEFINITIONS OF WORDS AND TERMS

                       Subpart 1402.1_Definitions

Sec.

Sec. 1402.101 Definitions.

Sec. 1402.170 Acronyms.


[[Page 782]]


    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                       Subpart 1402.1_Definitions



Sec. 1402.101  Definitions.

    As used in this part:
    Bureau procurement chief (BPC) is defined as the senior GS-1102 
official in a bureau or office. His/her authority may be delegated, 
unless specified otherwise, to the CCO. If the BPC is also the CO for an 
action requiring approval of the BPC, then approval shall be at the HCA 
level.
    Chief of the contracting office (CCO) is defined as the senior GS-
1102 within a contracting office unless otherwise specified by bureau/
office regulation. If the CCO is also the Contracting Officer (CO) for 
an action requiring approval of the CCO, then approval shall be at a 
level above the CCO in accordance with bureau procedures.
    Contracting activity is defined as an office with delegated 
procurement authority. Within the Office of the Secretary (OS), the 
Office of Inspector General (OIG) is a contracting activity. The 
National Business Center (NBC) contracts for the OS.
    Head of the agency (also called ``agency head'') is defined as the 
Secretary of the Interior and the Assistant Secretary--Policy, 
Management and Budget (AS/PMB).
    Head of the contracting activity (HCA) is defined as the assistant 
or associate administrative head of each bureau and office who has 
overall responsibility for managing contracting. In reference to the OS, 
the HCAs are the Assistant Inspector General for Management and Policy 
and the Director, NBC. The authority of the HCA may be redelegated to 
the BPC unless otherwise specified.
    Senior procurement executive is defined as the Director, Office of 
Acquisition and Property Management (PAM).



Sec. 1402.170  Acronyms.

A&E Architect & Engineering
ACMIS Acquisition Career Management Information System
AMP Acquisition Manager's Partnership
AMR Acquisition Management Review
AS/PMB Assistant Secretary--Policy, Management and Budget
BPA Blanket Purchase Agreement
BPC Bureau Procurement Chief
CA Competition Advocate
CAAC Civilian Agency Acquisition Council
CAS Cost Accounting Standards
CASB Cost Accounting Standards Board
CBCA Civilian Board of Contract Appeals
CCO Chief of the Contracting Office
CERCLA Comprehensive Environmental Response, Compensation and Liability 
    Act
CFR Code of Federal Regulations
CIO Chief Information Officer
CO Contracting Officer
COA Certificate of Appointment
COI Conflicts of Interest
COR Contracting Officer's Representative
COTR Contracting Officer's Technical Representative
DISP Defense Industrial Security Program
DM Departmental Manual
DOI Department of the Interior
DOL Department of Labor
EC Electronic Commerce
FAR Federal Acquisition Regulation
FBMS Financial Business Management System
FPDS--NG Federal Procurement Data System--Next Generation
GAO Government Accountability Office
GIDEP Government-Industry Data Exchange Program
GPE Government Point of Entry
GPO Government Printing Office
GSA General Services Administration
GSBCA General Services Board of Contract Appeals
HCA Head of the Contracting Activity
IT Information Technology
IPMD Interior Property Management Directives
MBDA Minority Business Development Agency
OCIO Office of Chief Information Officer
OIG/IG Office of Inspector General/Inspector General
OFPP Office of Federal Procurement Policy

[[Page 783]]

OHA Office of Hearings and Appeals
OMB Office of Management and Budget
OS Office of the Secretary
OSDBU Office of Small and Disadvantaged Business Utilization
PAM Office of Acquisition and Property Management
PMO Property Management Officer
PNM Procurement Negotiation Memorandum
SAT Simplified Acquisition Threshold
SBA Small Business Administration
SBS Small Business Specialist
SOL Office of the Solicitor
TFM Treasury Financial Manual
U.S.C. United States Code
VECP Value Engineering Change Proposal

[75 FR 19829, Apr. 15, 2010, as amended at 76 FR 50141, Aug. 12, 2011]

PART 1403_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 1403.1_Safeguards

Sec.

Sec. 1403.101 Standards of conduct.

Sec. 1403.101-3 Agency regulations.

Sec. 1403.101-70 Technical evaluators and advisors.

Sec. 1403.104 Procurement integrity.

Sec. 1403.104-2 Applicability.

Sec. 1403.104-4 Disclosure, protection and marking of contractor bid or 
          proposal information and source selection information.

Sec. 1403.104-7 Violations or possible violations.

      Subpart 1403.2_Contractor Gratuities to Government Personnel


Sec. 1403.203 Reporting suspected violations of the Gratuities clause.

Sec. 1403.204 Treatment of violations.

        Subpart 1403.3_Reports of Suspected Antitrust Violations


Sec. 1403.303 Reporting suspected antitrust violations.

                     Subpart 1403.4_Contingent Fees


Sec. 1403.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

            Subpart 1403.5_Other Improper Business Practices


Sec. 1403.570 Restrictions on contractor advertising.

Sec. 1403.570-1 Policy.

Sec. 1403.570-2 Procedures.

Sec. 1403.570-3 Contract clause.

  Subpart 1403.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them


Sec. 1403.602 Exceptions.

Sec. 1403.603 Responsibilities of the contracting officer.

             Subpart 1403.7_Voiding and Rescinding Contracts


Sec. 1403.704 Policy.

Sec. 1403.705 Procedures.

 Subpart 1403.8_Limitation on the Payment of Funds to Influence Federal 
                              Transactions


Sec. 1403.804 Policy.

Sec. 1403.806 Processing suspected violations.

     Subpart 1403.10_Contractor Code of Business Ethics and Conduct


Sec. 1403.1004 Contract clause.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                        Subpart 1403.1_Safeguards



Sec. 1403.101  Standards of conduct.



Sec. 1403.101-3  Agency regulations.

    (a) Policy. DOI regulations governing the conduct and 
responsibilities of regular and special employees are contained in 43 
CFR part 20. Additional guidance is contained in the DOI publication 
``Ethics Guide for Department of the Interior Employees.'' Copies of the 
Guide can be obtained from the Bureau/Office Ethics Office or on the 
Internet at http://www.doi.gov/ethics/. With regard to the provisions of 
43 CFR part 20, officials who participate personally and substantially 
in DOI procurements (as defined in FAR 3.104-3), may not solicit or 
accept any gift, gratuity, favor, entertainment, loan or anything of 
monetary value from a competing contractor during the conduct of a 
procurement.
    (b)(1) Officials may not accept or solicit from any competing 
contractor any services that involve the development of specifications, 
statements of work, evaluation criteria, or formal

[[Page 784]]

cost estimates to be used in a procurement unless such services are 
formally contracted for pursuant to the FAR and DIAR, and until the 
organizational COI provisions in FAR Subpart 9.5 have been fully 
addressed. This does not preclude COs from issuing formal Requests for 
Comment (RFC) or draft RFPs.
    (2) IT resources shall not be accepted, installed or utilized by the 
Department on a no cost, free of charge basis (this includes donated 
equipment but not public domain software), except as permitted by law.



Sec. 1403.101-70  Technical evaluators and advisors.

    (a) Technical evaluators and advisors, including members of proposal 
evaluation committees, must render impartial, technically sound, and 
objective assistance and advice.
    (b) With the exception of contracting personnel, proposal evaluators 
and advisors are not required to file a Confidential Financial 
Disclosure Report (SF450) unless they occupy positions identified in 43 
CFR 20.735.30(b). Therefore, when an individual is appointed as an 
evaluator or advisor, he/she must sign and return to the CO a Conflict 
of Interest Certificate in a format approved by the HCA. If a potential 
COI exists, the appointee must not be allowed to evaluate or advise on 
an offeror's proposal until the conflict has been resolved with the 
servicing Ethics Counselor.
    (c) During the evaluation process, each evaluator and advisor is 
responsible for ensuring that there are no financial or employment 
interests that conflict or give the appearance of conflicting with his 
or her duty to evaluate proposals impartially and objectively. Examples 
of situations that may be prohibited or represent a potential COI 
include:
    (1) Financial interest, including stocks and bonds, in a firm that 
submits, or is expected to submit, an offer in response to the 
solicitation;
    (2) Outstanding financial commitments to any actual or potential 
offeror;
    (3) Employment in any capacity, even if otherwise permissible, by 
any actual or potential offeror;
    (4) Employment within the last 12 months by an actual or potential 
offeror;
    (5) Any non-vested pension or re-employment rights, or interest in 
profit sharing or stock bonus plans arising out of past employment by an 
actual or potential offeror; or
    (6) Employment of any member of the immediate family by an actual or 
potential offeror.
    (d) Bureaus shall include a notice similar to the following in all 
correspondence notifying employees of appointments to serve as technical 
evaluators or advisors, formally called Technical Evaluation Panels 
(TEP) and/or Source Evaluation Boards (SEB):

    You shall not solicit or accept any gift, gratuity, favor, 
entertainment, loan, or anything of monetary value from a competing 
contractor involved in any action for which you participate personally 
and substantially under this delegation of authority. You are also 
reminded of other conduct prohibitions in FAR 3.104-3, including 
negotiating with competing contractors for future employment, disclosure 
of contractor bid or proposal information or source selection 
information, and post-Government employment restrictions.
    Such notice shall include an acknowledgement of receipt signed and 
returned by the employee.



Sec. 1403.104  Procurement integrity.



Sec. 1403.104-2  Applicability.

    Construction contracts (or subcontracts in such cases where the 
tribal contractor has subcontracted the activity) awarded under the 
authority of the Indian Self-Determination and Education Assistance Act, 
Public Law 93-638, as amended, are subject to the provisions promulgated 
under that Act.



Sec. 1403.104-4  Disclosure, protection, and marking of contractor bid 
          or proposal information and source selection information.

    (a) The following classes of persons may be authorized access to 
contractor bid or proposal information and source selection information 
to the extent necessary to accomplish their requisite duties and 
responsibilities with respect to a particular procurement:
    (1) Individuals who generate contract requirements, including 
program and

[[Page 785]]

technical experts involved in the development of statements of work, 
specifications or similar documents;
    (2) Contracting personnel acting in support of the CO;
    (3) Secretarial, clerical and administrative personnel of the 
contracting activity directly involved in the procurement;
    (4) Supervisors in the CO's chain of command;
    (5) Attorneys in the SOL;
    (6) OIG contract auditors, and auditors of other agencies such as 
the Defense Contract Audit Agency (DCAA) and DHHS when requested to 
perform contract audits by the OIG;
    (7) Engineers and other technical support personnel who provide 
support to the CO;
    (8) Small Business Technical Advisors and BUDS;
    (9) SBA personnel responsible for reviewing determinations related 
to set-aside acquisitions, determining the small business status of 
offerors, processing applications for Certificates of Competency, 
reviewing subcontracting plans, or awarding contracts under the 8(a) 
program;
    (10) Personnel in DOL responsible for making eligibility 
determinations or for processing preaward EEO clearances;
    (11) Personnel who review bid protests in the GAO and the CBCA;
    (12) Personnel serving on technical evaluation boards or source 
selection evaluation boards;
    (13) Contract clearance personnel;
    (14) Departmental and bureau/office Competition Advocates;
    (15) Personnel in the Congressional liaison offices;
    (16) Agency ethics official and servicing Ethics Counselors;
    (17) Members of Congress and members of their staff. (See also DIAR 
1405.403.); and
    (18) Anyone specifically authorized by the CO.



Sec. 1403.104-7  Violations or possible violations.

    (a)(1) The CO's determination that there is no impact on the 
procurement due to a possible violation of the Procurement Integrity Act 
and decision to proceed with contract award shall receive concurrence 
from an individual one level above the CO.
    (2) In case of nonconcurrence with the CO's determination, the HCA 
shall provide a copy of the reported violation and recommended action to 
the OIG in accordance with Part 111 DM 3. The CO, in consultation with 
the SOL and the OIG, must justify the compelling circumstances for 
immediate award and obtain approval to proceed from the BPC without the 
power of redelegation. Copies of the determination to proceed with the 
award will be sent to the Director, PAM, for submission to the AS/PMB.

      Subpart 1403.2_Contractor Gratuities to Government Personnel



Sec. 1403.203  Reporting suspected violations of the Gratuities clause.

    When suspected violations of the clause at FAR 52.203-3, Gratuities, 
become known to a Federal Government employee, the matter shall be 
reported, in writing, to the cognizant CO or the CO's supervisor, as 
appropriate. The report shall clearly state the alleged circumstances 
surrounding the incident or incidents in which the contractor offered or 
gave a gratuity to a Federal Government employee and intended to obtain 
a contract or favorable treatment under a contract because of the 
gratuity. The date(s), location(s) and name(s) of all parties involved 
in the incident shall be included in the report.



Sec. 1403.204  Treatment of violations.

    (a) The CO will provide the contractor with a formal notice that 
summarizes the events involving the suspected violation and affords the 
contractor the opportunity to take the action(s) listed under FAR 
3.204(b). The notice shall contain a time limit for reply and shall be 
sent by certified mail return receipt requested. The CO will submit the 
report, additional documentary evidence and other pertinent information 
to the HCA for disposition with a recommended course of action. A copy 
of this submission must also be sent to the Deputy Assistant Inspector 
General for Investigations. In consultation with the SOL and the OIG, 
and

[[Page 786]]

based on the results of any further discussion with the contractor, its 
counsel or witnesses, the HCA may make a recommendation to the Director, 
PAM, pursuant to FAR 3.204(c) and shall provide formal notice to the 
contractor of such recommendation.
    (b) If the decision involves the termination of a contract (see FAR 
3.204(c)(1)), the CO will be responsible for implementing the decision.

        Subpart 1403.3_Reports of Suspected Antitrust Violations



Sec. 1403.303  Reporting suspected antitrust violations.

    (a) Reports on suspected violations of antitrust laws as required by 
FAR 3.303 shall be prepared by the CO, reviewed by the SOL, and 
submitted by the HCA directly to the Attorney General, Department of 
Justice. A copy of this submission must also be sent to the Deputy 
Assistant Inspector General for Investigations.
    (b) Depending on the nature of the suspected violation or the 
disposition of the matter, the HCA may recommend debarment or suspension 
in accordance with FAR 9.406-2(a)(2) or 9.407-2(a)(2) and subpart 
1409.4.

                     Subpart 1403.4_Contingent Fees



Sec. 1403.405  Misrepresentation or violations of the Covenant Against 
          Contingent Fees.

    (a) In addition to notifying the CO, the matter must also be 
reported to the Deputy Assistant Inspector General for Investigations 
and the HCA.
    (b) The HCA may recommend debarment and suspension in accordance 
with Subpart 1409.4.
    (c) The CCO shall consult with the SOL and OIG prior to forwarding a 
report of suspected fraudulent or criminal violations to the Department 
of Justice for action.

            Subpart 1403.5_Other Improper Business Practices



Sec. 1403.570  Restrictions on contractor advertising.



Sec. 1403.570-1  Policy.

    Award of a contract does not signify endorsement of the supplies or 
services purchased, nor does it signify agreement with any views 
espoused by officials of the awardee. It is vital to the integrity of 
the procurement system to avoid even the appearance of an improper 
preference toward a particular vendor. Therefore, contractors shall not 
be permitted to publicize, or otherwise circulate, promotional materials 
that state or imply Governmental endorsement of a product, service or 
position which the contractor represents.



Sec. 1403.570-2  Procedures.

    If a contractor requests a determination as to the propriety of such 
promotional material, the response shall be coordinated with the 
cognizant Public Affairs Office and Ethics Officer.



Sec. 1403.570-3  Contract clause.

    CO's shall include the clause at 1452.203-70, Restriction on 
Endorsements, in all solicitations, contracts and agreements which are 
not executed in accordance with FAR Parts 12 or 13.

  Subpart 1403.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them



Sec. 1403.602  Exceptions.

    The HCA, without the power of redelegation, is authorized to except 
a contract from the policy in FAR 3.601. However, no exceptions may be 
granted where the proposed contractor is owned or controlled by a 
Government employee or one or more members of the employee's immediate 
family and the employee or any subordinate is serving as a procurement 
official on the proposed contract.



Sec. 1403.603  Responsibilities of the contracting officer.

    The CO shall prepare a written determination and findings for the 
signature

[[Page 787]]

of the HCA when requesting authorization to allow a contract award to a 
Government employee or business concern or other organization owned or 
substantially owned or controlled by one or more Government employees.

             Subpart 1403.7_Voiding and Rescinding Contracts



Sec. 1403.704  Policy.

    The HCA is authorized to declare void and rescind contracts in 
accordance with the procedures in FAR 3.705.



Sec. 1403.705  Procedures.

    (a) Reporting. The facts concerning any final conviction for any 
violation of 18 U.S.C. 201-224 involving or relating to any contract 
awarded by a bureau or office shall be set forth in a report and 
submitted by the HCA to the Civil Division of the Department of the 
Justice. The report shall also contain a recommendation to initiate a 
debarment action. If debarment is recommended, the procedures in 
1409.406-3(a) shall be followed. Copies of the report shall be provided 
to Director, PAM, and the Deputy Assistant Inspector General for 
Investigations for informational purposes.
    (b) Notice of Proposed Action. Based upon review of the report in 
paragraph (a) of this section and after consultation with the SOL and 
the OIG, as appropriate, the HCA shall give notice of the proposed 
action to the contractor in accordance with the requirements of FAR 
3.704(c).
    (c) Final Agency Decision. The HCA shall make the final decision on 
voiding and rescinding contracts in accordance with the requirements of 
FAR 3.705(e).

 Subpart 1403.8_Limitation on the Payment of Funds to Influence Federal 
                              Transactions



Sec. 1403.804  Policy.

    The BPC shall receive copies of contractor disclosures and forward 
them to the Director, PAM, for submission to Congress.



Sec. 1403.806  Processing suspected violations.

    Suspected violations shall be referred to the HCA. The HCA, in 
consultation with the SOL and OIG, shall act in accordance with FAR 
3.807.

     Subpart 1403.10_Contractor Code of Business Ethics and Conduct



Sec. 1403.1004  Contract clause.

    (a) In all awards expected to exceed $3,000,000, including options, 
for which performance is expected to exceed 120 days, except purchases 
conducted in accordance with FAR Part 12 and contracts to be performed 
entirely outside the United States, replace ``$5,000,000'' with 
``$3,000,000'' in paragraph (d) of FAR 52.203-14.
    (b) Insert the following into paragraph (b)(3) of the same clause: 
``Downloadable hotline posters as well as instructions for obtaining a 
hard copy poster are available at http://www.doioig.gov/hotline.''

                    PART 1404_ADMINISTRATIVE MATTERS

   Subpart 1404.4_Safeguarding Classified Information within Industry

Sec.

Sec. 1404.402 General.

Sec. 1404.403 Responsibilities of contracting officers.

               Subpart 1404.7_Contractor Records Retention


Sec. 1404.702 Applicability.

                      Subpart 1404.8_Contract Files


Sec. 1404.802 Contract files.

Sec. 1404.804 Closeout of contract files.

Sec. 1404.804-70 Release of claims.

Sec. 1404.805 Disposal of contract files.

            Subpart 1404.70_Deposit of Contract Publications


Sec. 1404.7001 General.

Sec. 1404.7002 Policy.

Sec. 1404.7003 Exceptions.

Sec. 1404.7004 Procedures.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

[[Page 788]]


    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

   Subpart 1404.4_Safeguarding Classified Information Within Industry



Sec. 1404.402  General.

    (a) The DOI has entered into an agreement with the DOD to be covered 
by the National Industrial Security Program (NISP). The agreement is 
contained in 443 DM 1, Appendix 1.
    (b) Classified acquisitions or contracts (see FAR 4.401) shall be 
subject to the instructions contained in the DOD publications listed in 
FAR 4.402(b).



Sec. 1404.403  Responsibilities of contracting officers.

    (a) For proposed solicitations that may require access to 
Departmental classified information, the CO shall consult with the 
Office of Managing Risk and Public Safety for guidance on NISP in 
accordance with 443 DM 1.
    (b) For proposed contracts where the contractor provides service for 
the handling and transmission of registered or certified mail at 
activities that customarily receive and transmit classified information 
(see FAR 4.401), the contractor shall be cleared to the degree of 
SECRET. This clearance shall be obtained through the Office of Managing 
Risk and Public Safety in accordance with 442 DM 8.
    (c) For proposed contracts where guard services are assigned to 
safeguard Department activities in possession of classified information 
(see FAR 4.401), review and approval shall be obtained from the Office 
of Managing Risk and Public Safety in accordance with 442 DM 8.

               Subpart 1404.7_Contractor Records Retention



Sec. 1404.702  Applicability.

    In addition to the clauses listed at FAR 4.702, the policies and 
procedures at FAR 4.7 shall also apply to records generated under 
contracts containing the clause at 1452.215-70, Examination of Records 
by the Department of the Interior.

                      Subpart 1404.8_Contract Files



Sec. 1404.802  Contract files.

    In addition to the requirements in FAR 4.802, files shall also be 
maintained in accordance with the provisions of 380 DM 3.



Sec. 1404.804  Closeout of contract files.



Sec. 1404.804-70  Release of claims.

    (a) The CO shall insert the clause at 1452.204-70, Release of 
Claims, in all construction, architect and engineering, and cost-
reimbursement contracts that exceed the SAT. The Release of Claims 
clause may be inserted in other types of contracts when the CO 
determines that the release is necessary to protect the interests of the 
Government.
    (b) Form DI-137, Release of Claims, shall be used to obtain a 
release of claims.



Sec. 1404.805  Disposal of contract files.

    Disposition of files shall be accomplished in accordance with 384 
DM.

            Subpart 1404.70_Deposit of Contract Publications



Sec. 1404.7001  General.

    The DOI Departmental Library is responsible for maintaining a 
complete collection of Departmental publications. As used in this 
Subpart, the term ``Departmental publication'' means any publication or 
report produced under a DOI contract or Interagency agreement.



Sec. 1404.7002  Policy.

    The CO shall direct the contractor, in the technical instructions, 
to acknowledge Federal sponsorship in the final report or publication by 
placing the following statement on the title page:
    ``This publication was funded by U.S. Department of the Interior, 
(Name of Bureau/Office), Washington, DC, under contract number----------
----.''



Sec. 1404.7003  Exceptions.

    The following types of publications are excluded from the 
requirements of this Subpart:

[[Page 789]]

    (a) Internal documents required for administrative or operational 
purposes that have no public interest, educational, scientific, or 
research value;
    (b) Classified publications and material otherwise marked 
prohibiting unauthorized disclosure;
    (c) Tentative drafts such as preliminary planning reports that will 
appear later in revised or final form;
    (d) Journal and magazine articles; or
    (e) Disclosure materials containing any description, specification, 
data, plan, or drawing of any unpatented invention upon which a patent 
application is likely to be filed, unless an opinion by the SOL, or his/
her duly authorized designee, has been rendered which finds that the 
interests of the Government will not be prejudiced by disclosure of such 
materials.



Sec. 1404.7004  Procedures.

    (a) The CO shall direct the contractor, in the technical 
instructions, to provide two copies of each publication or report 
produced under a contract to: U.S. Department of the Interior, 
Departmental Library, 1849 C Street, NW., MS-2258, Main Interior Bldg., 
Washington, DC 20240.
    (b) A transmittal letter shall accompany the copies and identify the 
sender and the publication(s). The bibliographic information required by 
481 DM 1.3B(4) shall be also included with the submission of all 
translations.

[[Page 790]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                 PART 1405_PUBLICIZING CONTRACT ACTIONS

          Subpart 1405.2_Synopses of Proposed Contract Actions

Sec.

Sec. 1405.202 Exceptions.

Sec. 1405.207 Preparation and transmittal of synopses.

               Subpart 1405.3_Synopses of Contract Awards


Sec. 1405.303 Announcement of contract awards.

                  Subpart 1405.4_Release of Information


Sec. 1405.403 Requests from members of Congress.

Sec. 1405.404 Release of long-range acquisition estimates.

Sec. 1405.404-1 Release procedures.

                   Subpart 1405.5_Paid Advertisements


Sec. 1405.502 Authority.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

          Subpart 1405.2_Synopses of Proposed Contract Actions



Sec. 1405.202  Exceptions.

    The AS/PMB is authorized to approve the written determination 
documenting the reasons why a synopsis is not appropriate or reasonable. 
The CO shall prepare the determination, submit it to the HCA and then to 
the Director, PAM, for AS/PMB approval.



Sec. 1405.207  Preparation and transmittal of synopses.

    In addition to the synopsis information generally required under FAR 
5.207, as a best business practice, it is recommended each synopsis of a 
proposed contract action under other than full and open competition 
include the location where the offeror may obtain:
    (a) A description of specific qualifications the Government requires 
of the product or service to meet the Government's minimum needs; and
    (b) The factors the Government will use to evaluate the product or 
service information prospective contractors provide under the proposed 
contract action.

               Subpart 1405.3_Synopses of Contract Awards



Sec. 1405.303  Announcement of contract awards.

    (a) The CO shall report the following information to the cognizant 
bureau congressional affairs officer for notification to Congress 24 
hours prior to the award of a contract expecting to exceed $500,000:
    (1) Proposed award date;
    (2) Contractor name and address;
    (3) Geographical location of contract performance;
    (4) Description of the contracted work;
    (5) Dollar amount of contract; and
    (6) Contractor business size and whether the firm is minority-owned 
or is a disadvantaged business concern.
    (b) With the concurrence of the Office of Congressional and 
Legislative Affairs, the HCA may waive the announcement of sensitive 
awards.

                  Subpart 1405.4_Release of Information



Sec. 1405.403  Requests from Members of Congress.

    For purposes of this subpart, the agency head is the HCA with the 
power of redelegation to the BPC.



Sec. 1405.404  Release of long-range acquisition estimates.



Sec. 1405.404-1  Release procedures.

    (a) The authority to release acquisition requirements anticipated in 
the coming year is delegated to the OSDBU and the HCA with redelegation 
limited to the BPC. The Government cost estimate shall not be revealed. 
The expected dollar values shall be advertised as falling within dollar 
ranges rather than specific dollar amounts.

[[Page 791]]

    (b) Classified information shall only be released in accordance with 
the procedures in 442 DM.

                   Subpart 1405.5_Paid Advertisements



Sec. 1405.502  Authority.

    (a) The CO shall obtain written authorization of the HCA before 
placing an advertisement in a newspaper to advertise a contracting 
opportunity.
    (b) Advertisements placed in media other than newspapers do not 
require advance authorization.

                   PART 1406_COMPETITION REQUIREMENTS

   Subpart 1406.2_Full and Open Competition After Exclusion of Sources

Sec.

Sec. 1406.202 Establishing or maintaining alternate sources.

           Subpart 1406.3_Other Than Full and Open Competition


Sec. 1406.302 Circumstances permitting other than full and open 
          competition.

Sec. 1406.302-1 Only one responsible source and no other supplies or 
          services will satisfy agency requirements.

Sec. 1406.302-7 Public interest.

Sec. 1406.303 Justifications.

Sec. 1406.303-70 Additional requirements.

Sec. 1406.304 Approval of the justification.

                  Subpart 1406.5_Competition Advocates


Sec. 1406.501 Requirement.

Sec. 1406.502 Duties and responsibilities.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

   Subpart 1406.2_Full and Open Competition After Exclusion of Sources



Sec. 1406.202  Establishing or maintaining alternative sources.

    HCAs are authorized to approve the determinations and findings 
(D&Fs) to establish or maintain an alternative source or sources for 
supplies or services.

           Subpart 1406.3_Other Than Full and Open Competition



Sec. 1406.302  Circumstances permitting other than full and open 
          competition.



Sec. 1406.302-1  Only one responsible source and no other supplies or 
          services will satisfy agency requirements.

    For contracts that will be awarded using this authority, the notices 
required by FAR 5.201 shall have been published and any bids, proposals, 
quotations, or capability statements must have been considered.



Sec. 1406.302-7  Public interest.

    The CO shall prepare the D&F and complete the justification to 
support use of public interest authority for other than full and open 
competition and submit it through the HCA to the Director, PAM, for 
further action.



Sec. 1406.303  Justifications.



Sec. 1406.303-70  Additional requirements.

    (a) If other than full and open competition is recommended by the 
office initiating an acquisition requirement, the recommendation shall:
    (1) Be in writing;
    (2) Accompany the requisition;
    (3) Contain the information required by FAR 6.303-2; and
    (4) Request the CO to conduct a market survey by issuing a synopsis 
of the proposed contract action (see 1405.207). The initiating office 
shall evaluate and document all responses to the notice. The CO shall 
prepare the D&F that only one source can meet the Government's needs 
based on the evaluation results. The evaluation results shall be 
included in the justification as required by FAR 6.303-2(a)(8) if it is 
determined that only one source can meet the Government's needs.
    (b) The procedure in paragraph (a) of this section is not required 
for proposed contract actions to be awarded under the authority in FAR 
6.302-2 when the CO determines that preparation and approval of the 
justification

[[Page 792]]

would unreasonably delay the acquisition. Under these circumstances, a 
justification may be prepared and approved after award in accordance 
with FAR 6.303-1(d).



Sec. 1406.304  Approval of the justification.

    A class justification shall be approved in accordance with bureau 
procedures. Copies of approved class justifications shall be promptly 
transmitted to PAM.

                  Subpart 1406.5_Competition Advocates



Sec. 1406.501  Requirement.

    (a) The competition advocate for DOI is located within PAM's staff. 
Applicable correspondence should be addressed to PAM, Attention: 
Competition Advocate.
    (b) Competition Advocates for each bureau and office shall be as 
designated by the CAO-AS/PMB.



Sec. 1406.502  Duties and responsibilities.

    PAM is responsible for preparing and submitting the annual report 
required by FAR 6.502(b)(2). Bureau Competition Advocates shall furnish 
certain information, as may be required, to assist PAM in preparing the 
report.

                     PART 1407_ACQUISITION PLANNING

                    Subpart 1407.1_Acquisition Plans


Sec. 1407.102 Policy.

         Subpart 1407.3_Contractor Versus Government Performance


Sec. 1407.301 Policy.

Sec. 1407.307 Appeals.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                    Subpart 1407.1_Acquisition Plans



Sec. 1407.102  Policy.

    DOI has implemented its acquisition planning system in 404 DM. This 
system meets the criteria prescribed in FAR Subpart 7.1, 375 DM, OCIO 
Program Management, and 376 DM, Automated Data Processing. Each of these 
addresses strategic planning for OCIO and planning for acquisition of 
federal information processing resources.

         Subpart 1407.3_Contractor Versus Government Performance



Sec. 1407.301  Policy.

    404 DM, Procurement Planning, addresses the requirements of OMB 
Circular A-76.



Sec. 1407.307  Appeals.

    Department appeal procedures required by OMB Circular A-76 are 
codified in 43 CFR part 4, subpart M.

           PART 1408_REQUIRED SOURCES OF SUPPLIES AND SERVICES

                 Subpart 1408.1_Excess Personal Property

Sec.

Sec. 1408.102 Policy.

       Subpart 1408.8_Acquisition of Printing and Related Supplies


Sec. 1408.802 Policy.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                 Subpart 1408.1_Excess Personal Property



Sec. 1408.102  Policy.

    Inquiries on available excess or surplus personal property should be 
directed to the PMO or the designee in each Bureau or Office.

       Subpart 1408.8_Acquisition of Printing and Related Supplies



Sec. 1408.802  Policy.

    (a) Duplicating is the mass reproduction of materials beyond the 
capabilities of typical office copiers. Volumes are of sufficient mass 
quantities up to 5,000 single-page and 25,000 production units in the 
aggregate of multiple pages. Such duplicating units shall require 
Departmental approval to be processed through the Department of

[[Page 793]]

the Interior Publishing Council (DOIPC).
    (b) Copying is distinguished from ``duplicating'' in that such work 
is administrative in nature, produced on office copying equipment and 
produced as necessary, in limited quantities. Volumes typically range 
from 1 to 500 single-pages to 2,500 production units in the aggregate of 
multiple pages. This volume standard is referred to as the ``500/2500'' 
rule. Reproduction work exceeding the ``500/2500'' rule is duplicating, 
and requires a waiver from the nearest servicing GPO office. Employees 
should consult with their bureau printing officer or the DOIPC 
representative to secure such a waiver.
    (c) The DOIPC has been designated as the Department's liaison with 
the Joint Committee on Printing and GPO. Requirements for printing and 
related supplies shall be coordinated with the DOIPC or the designated 
bureau publications liaison officer in accordance with 314 DM 1.

                   PART 1409_CONTRACTOR QUALIFICATIONS

               Subpart 1409.2_Qualifications Requirements

Sec.

Sec. 1409.202 Policy.

Sec. 1409.206 Acquisitions subject to qualifications requirements.

Sec. 1409.206-1 General.

         Subpart 1409.4_Debarment, Suspension and Ineligibility


Sec. 1409.403 Definitions.

Sec. 1409.404 Excluded Parties List System (EPLS).

Sec. 1409.405 Effect of listing.

Sec. 1409.405-1 Continuation of current contracts.

Sec. 1409.406 Debarment.

Sec. 1409.406-1 General.

Sec. 1409.406-3 Procedures.

Sec. 1409.407 Suspension.

Sec. 1409.407-1 General.

Sec. 1409.407-3 Procedures.

   Subpart 1409.5_Organizational and Consultant Conflicts of Interest


Sec. 1409.503 Waiver.

Sec. 1409.506 Procedures.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

               Subpart 1409.2_Qualifications Requirements



Sec. 1409.202  Policy.

    (a) The HCA is the official responsible for establishing the 
qualification requirement in FAR 9.202(a)(1). This authority is not 
redelegable.
    (b) The HCA is the approval official referenced in FAR 9.202(e).



Sec. 1409.206  Acquisitions subject to qualification requirements.



Sec. 1409.206-1  General.

    The HCA is the approval official referenced in FAR 9.206-1(b).

         Subpart 1409.4_Debarment, Suspension, and Ineligibility



Sec. 1409.403  Definitions.

    As used in this subpart:
    Case Representative refers to the individual who prepares and 
forwards the action referral memorandum to the Debarring and Suspending 
Official and provides additional assistance in the course of action 
resolution. Debarment and Suspension actions may be referred to the 
Debarring and Suspending Official for consideration from different 
sources, as appropriate. The HCA, or designee, may refer matters. The 
Office of Inspector General (OIG) may also refer actions.
    Conviction, for the purposes of this subpart, means:
    (a) A judgment or any other determination of guilt of a criminal 
offense by any court of competent jurisdiction, whether entered upon a 
verdict or plea, including a plea of nolo contendere; or,
    (b) Any other resolution that is the functional equivalent of a 
judgment, including probation before judgment and deferred prosecution. 
A disposition without the participation of the court is the functional 
equivalent of a judgment only if it includes an admission of guilt.
    Debarring Official refers to the Director, PAM. The Debarring 
Official is the official authorized to impose debarment or suspension. 
The Debarring Official also may settle a debarment or

[[Page 794]]

suspension action at any time if it is in the best interest of the 
Government.
    Suspending Official refers to the Director, PAM.



Sec. 1409.404  Excluded Parties List System (EPLS).

    (a) PAM is responsible for accomplishing the actions required in FAR 
9.404(c).
    (b) COs should access the EPLS online at http://www.epls.gov.



Sec. 1409.405  Effect of listing.

    When a CO finds that a compelling reason exists to conduct business 
with a contractor listed on the EPLS, the HCA shall submit the 
determination and findings to the Director, PAM, for approval.



Sec. 1409.405-1  Continuation of current contracts.

    The HCA, without authority to redelegate, is authorized to take the 
actions listed in FAR 9.405-1.



Sec. 1409.406  Debarment.



Sec. 1409.406-1  General.

    The Director, PAM, is authorized to make the statement regarding 
debarment by another agency's debarring official under the conditions in 
FAR 9.406-1(c).



Sec. 1409.406-3  Procedures.

    (a) Investigation and referral. Whenever a cause for debarment, as 
listed in FAR 9.406-2. becomes known to a DOI employee, the matter shall 
be referred by the case representative to the Debarring Official, in 
consultation, as appropriate, with the HCA involved, the SOL, and OIG. 
The case representative will review the matter and, as warranted, 
prepare and submit to the Debarring Official for consideration an Action 
Referral Memorandum (ARM) with supporting documentation.
    (b) Notice of Proposed Debarment. Based upon review of the ARM, as 
appropriate, the Debarring Official shall initiate proposed debarment by 
taking the actions listed in FAR 9.406-3(c) and advising the contractor 
of DOI's process for contesting the action.
    (c) Decision-making process. (1) For debarment actions based upon a 
conviction, civil judgment, or in which there is no genuine dispute over 
material facts, consistent with FAR 9.406-3(d)(1), the Debarring 
Official shall make a decision on the basis of the information in the 
administrative record, including any contractor submissions. Where the 
proceeding includes an oral presentation of matters in opposition (PMIO) 
to the Debarring Official, the PMIO will be conducted in an informal 
business meeting format and tape recorded for the administrative record.
    (2) For actions listed under FAR 9.406-3(b)(2), upon concluding from 
a contractor's information in response to the action notice that facts 
material to the existence of cause for debarment are genuinely in 
dispute, the Debarring Official may refer the disputed material facts to 
another official for fact-finding. The hearing shall be conducted in 
accordance with Debarment Program fact-finding procedures.
    (i) The fact-finding proceeding will be transcribed. The fact-
finding official will file the original copy of the transcript with the 
case record. The reporter's fees and other direct costs associated with 
the hearing shall be borne by the bureau or office initiating the 
debarment action, except in the case of actions initiated by the OIG. 
For actions initiated by the OIG, the costs will be borne by the 
bureau(s) and/or office(s) out of which the matter arose. A transcript 
of the proceedings shall be made available to the contractor as provided 
under FAR 9.406-3(b)(2)(ii).
    (ii) Subject to the provisions of 43 CFR part 1, the contractor, and 
any specifically named affiliate, may be represented by counsel or any 
duly authorized representative. Witnesses may be called by either party. 
The proceedings shall be conducted expeditiously and in such a manner 
that each party will have a full opportunity to present all information 
considered pertinent to the proposed debarment. A transcript of the 
proceedings shall be made available to the contractor under the 
condition in FAR 9.406-3(b)(2)(ii).
    (iii) The fact-finding official will prepare findings of fact, 
certify the entire hearing record and provide said findings and record 
to the Debarring Official. The fact-finding official shall not make any 
recommendations unless the

[[Page 795]]

Debarring Official has expressly requested such recommendations in 
writing. Following receipt of the findings of fact, the Debarring 
Official shall complete debarment proceedings and issue a written 
debarment decision.
    (d) Administrative Agreements. Matters may be resolved through 
administrative agreement at any stage of proceedings of a debarment 
action where a contractor agrees to appropriate terms. The specific 
effect of administrative agreements that incorporate terms regarding 
eligibility for DOI contracting will vary with the terms of the 
agreements. In general, such agreements resolve debarment concerns and 
thereby terminate any imposed or pending award ineligibility. In the 
event of an agreement, PAM will notify COs of the agreement and its 
terms.
    (e) Administrative Appeal. Administrative review of the Debarring 
Official's decision under FAR 9.406-3(e) may be sought as follows:
    (1) The contractor may within thirty (30) days of receipt of the 
decision, request the Debarring Official to reconsider the decision for 
clear material errors of fact or law which would change the outcome of 
the matter.
    (2) The Debarring Official may exercise his/her discretion and stay 
the debarment pending reconsideration review. The Debarring Official 
will notify the contractor in writing of the decision on 
reconsideration.
    (3) A review request under this section must be in writing, clearly 
state the specific findings believed to be in error and include the 
reasons or legal bases for the position.



Sec. 1409.407  Suspension.



Sec. 1409.407-1  General.

    The Director, PAM, is authorized to make the determination in FAR 
9.407-1(d).



Sec. 1409.407-3  Procedures.

    (a) Investigation and referral. Whenever a cause for suspension, as 
listed in FAR 9.407-2, becomes known to a DOI employee, the matter shall 
be referred by the case representative to the Suspending Official, in 
consultation, as appropriate, with the HCA involved, the SOL, and the 
OIG. The case representative will review the matter and, if warranted, 
prepare and submit to the Debarring Official for consideration an Action 
Referral Memorandum (ARM) with supporting documentation.
    (b) Notice of Suspension. After review of the ARM, if appropriate, 
the Debarring Official shall initiate a suspension by taking the actions 
listed in FAR 9.407-3(c), and advising the contractor of the 
Department's process for contesting the action.
    (c) Decision making process. (1) For suspension actions based upon 
an indictment or equivalent charging document, or where there is no 
genuine dispute over material facts, consistent with FAR 9.407-3(d), or 
in which additional proceedings to determine disputed material facts 
have been denied on the basis of DOJ advice, the Suspending Official 
shall make a decision on the basis of the information in the 
administrative record, including any submission by the contractor. Where 
the proceeding includes an oral PMIO to the Suspending Official, the 
PMIO will be conducted in an informal business meeting format and tape 
recorded for the administrative record.
    (2) For actions listed under FAR 9.407-3(b)(2), when the Debarring 
Official concludes from information in a contractor's response to the 
proposed action notice that facts material to the existence of a cause 
for debarment are genuinely in dispute, the Suspending Official may 
refer the disputed material facts to another official for hearing and 
findings of fact.
    (i) The hearing shall be conducted in accordance with Suspension 
Program fact-finding procedures.
    (ii) The fact-finding proceeding will be transcribed. The reporter's 
fees and other direct costs associated with the hearing shall be borne 
by the bureau or office initiating the suspension referral, except in 
the case of actions initiated by the OIG. For actions initiated by the 
OIG, costs will be borne by Bureaus and/or offices out of which the 
matter arose. A transcript of the proceedings shall be made available to 
the contractor under the condition in FAR 9.407-3(b)(2)(ii).
    (iii) Subject to the provisions of 43 CFR part 1, the contractor, 
and any specifically named affiliates, may be

[[Page 796]]

represented by counsel or any duly authorized representative. Witnesses 
may be called by either party. The proceedings shall be conducted 
expeditiously and in such a manner that each party will have a full 
opportunity to present all information considered pertinent to the 
suspension.
    (iv) The fact-finding official will prepare findings of fact, 
certify the entire hearing record and provide said findings and record 
to the Suspending Official. The fact-finding official shall not make any 
recommendations unless the Suspending Official has expressly requested 
such recommendations in writing. Following receipt of the findings of 
fact, the Suspending Official shall complete suspension proceedings and 
issue a written decision. Matters may be resolved through an 
administrative agreement at any stage of the proceedings.
    (d) Administrative Agreements. Matters may be resolved through an 
administrative agreement at any stage of proceedings in resolution of a 
suspension action where a contractor agrees to appropriate terms. The 
specific effect of administrative agreements that incorporate terms 
regarding eligibility for DOI contracting will vary with the terms of 
the agreements. In general, such agreements resolve suspension concerns 
and thereby terminate award ineligibility. An administrative agreement 
resolving a suspension action may by its terms be an interim agreement. 
In the event of an agreement, PAM will notify COs of the agreement and 
its terms.
    (e) Administrative Appeal. Administrative review of the Suspending 
Official's decision under FAR 9.407-3(d) may be sought as follows:
    (1) The contractor may within thirty (30) days of receipt of the 
decision, ask the Suspending Official to reconsider the decision for 
clear material errors of fact or law which would change the outcome of 
the matter.
    (2) The Suspending Official may in the exercise of discretion stay 
the debarment pending reconsideration review. The Suspending Official 
will notify the contractor in writing of the decision on 
reconsideration.
    (3) A review request under this section must be submitted in 
writing; clearly state the specific findings believed to be in error, 
and include the reasons or legal bases for the position.

   Subpart 1409.5_Organizational and Consultant Conflicts of Interest



Sec. 1409.503  Waiver.

    (a) The Director, PAM, is authorized to waive any general rule or 
procedure in FAR Subpart 9.5, when such action is in the Government's 
interest.
    (b) Request for waivers shall be made by the HCA, through the 
appropriate SOL, to the Director, PAM. Each request shall include:
    (1) An analysis of the facts involving the potential or actual 
conflict, including benefits and detriments to the Government and 
prospective contractor(s);
    (2) A discussion of the factors which preclude avoiding, 
neutralizing or mitigating the conflict; and
    (3) Identification of the provision(s) in FAR Subpart 9.5 to be 
waived.



Sec. 1409.506  Procedures.

    If the CO determines that contractor performance of the contemplated 
work is likely to create an organizational conflict of interest, then 
the contracting officer shall refer the documentation of the potential 
conflict and proposed resolution prepared in accordance with 
7.105(b)(18) to the HCA for approval. Referrals to the HCA shall be 
initiated by the CO and reviewed by the SOL.

                       PARTS 1410	1412 [RESERVED]

[[Page 797]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 1413_SIMPLIFIED ACQUISITION PROCEDURES

                      Subpart 1413.2_Micro-Purchase

Sec.

Sec. 1413.201 General.

Sec. 1413.202-70 Policy.

              Subpart 1413.3_Simplified Acquisition Methods


Sec. 1413.305 Imprest Fund.

Sec. 1413.305-2 Agency responsibilities.

Sec. 1413.305-4 Procedures.

Sec. 1413.306 Standard Form 44, Purchase order--invoice--voucher.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                      Subpart 1413.2_Micro-Purchase



Sec. 1413.201  General.

    The procedures set forth in the Federal Supply Schedule for 
Government-wide Commercial Credit Card Services, Treasury Financial 
Manual, TFM 4-4500, and ``U.S. Department of Interior Handbook for 
Utilization of Government Wide Commercial Credit Card'' issued by PAM 
contain guidance on using Government-wide purchase card services.



Sec. 1413.202-70  Policy.

    (a) The purchase card shall be used in preference to other methods 
of procurement for purchases up to $3,000. Other small purchase methods 
(BPAs, imprest funds, third-party drafts, SF-44 forms, and purchase 
orders) may be used in lieu of the Government purchase card when it is 
more cost-effective or practicable.
    (b) The purchase card shall be issued primarily to personnel outside 
of procurement offices to purchase products and services up to the 
micro-purchase threshold ($2,000 for construction).
    (c) The purchase card may be used in procurement offices for 
purchases up to the simplified acquisition threshold ($50,000 if not 
interim FACNET certified) not to exceed individual warrant limitations.
    (d) Each contracting activity shall develop more specific procedures 
for use of purchase cards.

              Subpart 1413.3_Simplified Acquisition Methods



Sec. 1413.305  Imprest fund.



Sec. 1413.305-2  Agency responsibilities.

    Policy governing the use and administration of imprest funds within 
the Department are contained in 330 DM, in addition to the policies and 
regulations outlined in FAR 13.305-1. HCAs shall establish written 
procedures for designation, by name, of personnel authorized to approve 
requisitions and make purchases using imprest funds. The procedures 
shall include a periodic review of imprest fund transactions by 
acquisition personnel.



Sec. 1413.305-4  Procedures.

    The individual authorized to make purchases using imprest funds 
shall be responsible for compliance with the procedures and 
documentation requirements of FAR 13.305-4.



Sec. 1413.306  Standard Form 44, Purchase order-invoice-voucher.

    HCAs are responsible for establishing bureau procedures to control 
the use of the SF 44 and accounting for all purchases made using the 
form. Bureau procedures shall include instructions covering:
    (a) Maintenance of a list of designated individuals authorized to 
make purchases using the form;
    (b) Controls for issuing the form to authorized individuals; and
    (c) Review of purchase transactions using the form to assure 
compliance with authorized procedures.

                        PART 1414_SEALED BIDDING

                   Subpart 1414.2_Solicitation of Bids

Sec.

Sec. 1414.201 Preparation of invitations for bids.

[[Page 798]]


Sec. 1414.201-70 Alternate bids.

          Subpart 1414.4_Opening of Bids and Award of Contract


Sec. 1414.404 Rejection of bids.

Sec. 1414.404-1 Cancellation of invitations after opening.

Sec. 1414.407 Mistakes in bids.

Sec. 1414.407-3 Other mistakes disclosed before award.

Sec. 1414.407-4 Mistakes after award.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                   Subpart 1414.2_Solicitation of Bids



Sec. 1414.201  Preparation of invitation for bids.



Sec. 1414.201-70  Alternate bids.

    (a) Solicitations for supplies or services (other than construction) 
shall specify whether alternate bids are permitted, provide instructions 
for submitting alternate bids and clearly indicate how alternate bids 
will be evaluated.
    (b) The clause set forth in 1452.236-71 may be used in non-
construction contracts where additive and deductive alternate bids will 
be permitted.

          Subpart 1414.4_Opening of Bids and Award of Contract



Sec. 1414.404  Rejection of bids.



Sec. 1414.404-1  Cancellation of invitations after opening.

    The CCO is authorized to make the written determination to cancel 
the IFB before award but after bid opening.



Sec. 1414.407  Mistakes in bids.



Sec. 1414.407-3  Other mistakes disclosed before award.

    (a) The HCA is authorized to make the administrative determinations 
under FAR 14.407-3, except as set forth in paragraph (b) of this 
section. This authority is not redelegable.
    (b) The CCO has the authority outlined in FAR 14.407-3(c) to make 
the written determination permitting a bidder to withdraw a bid, after 
review by the SOL.
    (c) The CO shall submit a report on suspected or alleged mistakes in 
bids together with the supporting data to the BPC, who will forward it 
to the HCA. The CO may also include a report on bids where evidence of 
the intended bid is clear and convincing but the bidder has not 
requested permission to correct the bid. Incomplete reports may result 
in a delay in obtaining a determination.
    (d) The BPC is responsible for maintaining records of administrative 
determinations.



Sec. 1414.407-4  Mistakes after award.

    The CO is authorized to make the administrative determinations 
outlined in 14.407-4 after receiving concurrence from the SOL.

                  PART 1415_CONTRACTING BY NEGOTIATION

  Subpart 1415.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 1415.201 Exchanges with industry before receipt of proposals.

Sec. 1415.207 Handling proposals and information.

Sec. 1415.207-70 Department of the Interior proposal and information 
          handling procedures.

Sec. 1415.207-71 Confidentiality of proposal evaluation.

Sec. 1415.209 Solicitation provisions and contract clauses.

Sec. 1415.209-70 Examination of records by the Department of the 
          Interior.

                     Subpart 1415.3_Source Selection


Sec. 1415.303 Responsibilities.

Sec. 1415.305 Proposal evaluation.

                     Subpart 1415.4_Contract Pricing


Sec. 1415.404 Proposal analysis.

Sec. 1415.404-2 Information to support proposal analysis.

Sec. 1415.404-4 Profit.

Sec. 1415.406 Documentation.

Sec. 1415.406-70 Department of the Interior price negotiation memorandum 
          (PNM).

                  Subpart 1415.6_Unsolicited Proposals


Sec. 1415.606 Agency procedures.


[[Page 799]]


    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

  Subpart 1415.2_Solicitation and Receipt of Proposals and Information



Sec. 1415.201  Exchanges with industry before receipt of proposals.

    (a) Use of a presolicitation conference shall be approved at one 
level above the CO.
    (b) A CO may issue a solicitation for information or planning 
purposes without a written justification and without obtaining a higher 
level of approval.



Sec. 1415.207  Handling proposals and information.



Sec. 1415.207-70  Department of the Interior proposal and information 
          handling procedures.

    (a) General. This section establishes procedures that must be used 
in addition to those prescribed in FAR 15.207, for the use and 
disclosure of trade secret information and confidential commercial and 
financial information contained in solicited proposals.
    (b) Marking of solicited proposals. A solicited proposal may contain 
trade secrets or confidential commercial or financial information which 
the offeror, or its subcontractors, prefers not to be disclosed to the 
public or used by the Government for any purpose other than evaluation 
of the proposal. To notify the Government of trade secrets and 
confidential commercial or financial information contained in a 
proposal, offerors must mark the cover page of the proposal and each 
affected page of the proposal with the legends specified in the 
solicitation provision at 1452.215-71, Use and Disclosure of Proposal 
Information--Department of the Interior. COs and other government 
personnel evaluating a proposal shall not refuse to consider the 
proposal because it contains information identified as trade secret 
information or confidential commercial or financial information.
    (c) Failure to mark. The Government assumes no liability for the 
disclosure or use of information contained in a proposal if not marked 
in accordance with 1452.215-71. If a request under the Freedom of 
Information Act is made for information in a proposal not marked in 
accordance with 1452.215-71, the offeror concerned shall be notified 
promptly of the request and given an opportunity to provide its position 
to the Government. However, failure of an offeror to mark information 
contained in a proposal as trade secret information or confidential 
commercial and financial information will be treated by the Government 
as evidence that the information is not exempt from disclosure under the 
Freedom of Information Act, absent a showing that the failure to mark 
was due to unusual or extenuating circumstances, such as a showing that 
the offeror had intended to mark, but that markings were omitted from 
the offeror's proposal due to clerical error.
    (d) Solicitation provision. The provision at 1452.215-71, Use and 
Disclosure of Proposal Information--Department of the Interior, shall be 
inserted in all requests for proposals and requests for quotations.



Sec. 1415.207-71  Confidentiality of proposal evaluation.

    (a) The safeguarding of evaluation data and information, including 
proposals, is essential in order to preserve the integrity of the 
proposal evaluation process. During the selection process, no member or 
advisor of any committee appointed to evaluate proposals shall discuss 
or disclose any information on the number, identity or content of 
proposals received to any other party (including supervisors) without 
the written approval of the CO. 18 U.S.C. 1905 prohibits the 
unauthorized disclosure of business, confidential or trade secret 
information unless authorized by law.
    (b) At the initial meeting of the committee, the CO shall brief all 
members and advisors on the sensitivity of the evaluation process and 
the prohibition against unauthorized disclosure of information. At this 
meeting each member and advisor shall sign a Confidentiality 
Certificate. During the proposal evaluation process, all proposals, 
evaluation notes, scoring sheets, and other

[[Page 800]]

materials shall be locked in file cabinets or drawers when not in use by 
committee members and advisors.
    (c) The CO shall be the single point of contact regarding 
communications received from outside parties relating to the acquisition 
and the evaluation and selection process. Any committee member or 
advisor who receives a communication from any outside party shall, 
without discussion, immediately refer the party to the CO. The CO will 
then determine what further action shall be taken, if any, in responding 
to the communication. Requests for information made pursuant to the 
Freedom of Information Act shall be referred to the CO for reply. 
Proposal evaluation committee members and advisors shall not contact any 
offeror whose proposal is under evaluation. All communications with 
offerors shall be handled by the CO.
    (d) Bureaus and offices may only release proposals outside the 
Government for evaluation or advice in accordance with the following 
requirements:
    (1) Decisions to release proposals outside the Government for 
evaluation or advice shall be approved in writing by the HCA;
    (2) Outside evaluators and advisors shall sign a Conflict of 
Interest Certificate and a Confidentiality Certificate in a format 
approved by the HCA;
    (3) Any authorized restrictive legends placed on the proposal by the 
prospective contractor or subcontractor, or by the Government shall be 
applied to any reproduction or abstracted information made by the 
outside evaluator or advisor;
    (4) Upon completing the evaluation, all copies of the proposal, as 
well as any abstracts thereof, shall be returned to the Government 
office which initially furnished them for evaluation; and
    (5) All determinations to release the proposal outside the 
Government shall take into consideration requirements for avoiding 
individual conflicts of interest (see 1403.101) and organizational 
conflicts of interest (see 1409.5 and FAR Subpart 9.5), and the 
competitive relationship, if any, between the prospective contractor or 
subcontractor and the prospective outside evaluator.
    (e) If outside individuals will be voting members of the evaluation 
committee or otherwise participate in other than an advisory capacity, 
then the committee must be constituted as a Federal Advisory Committee 
in accordance with the Federal Advisory Committee Act (PL 92-463) and 
308 DM 2. Since the Secretary must appoint such committees in 
consultation with the Office of Management and Budget, there should be 
very few occasions when use of outside individuals as voting members is 
justified.
    (f) Outside evaluators will usually serve as advisors to the 
proposal evaluation committee and as such, are consultants. Consultants 
may be appointed as special employees in accordance with 5 U.S.C. 3109 
or contracted for in accordance with 1437.1.
    (g) Additional restrictions on the disclosure of acquisition 
evaluation information are listed in FAR Subpart 5.4.



Sec. 1415.209  Solicitation provisions and contract clauses.



Sec. 1414.209-70  Examination of records by the Department of the 
          Interior.

    The CO shall insert the clause at 1452.215-70, Examination of 
Records by the Department of the Interior, in all contracts requiring 
the clause at FAR 52.215-2 Audit and Records, Negotiation, as prescribed 
in FAR 15.209(b).

                     Subpart 1415.3_Source Selection



Sec. 1415.303  Responsibilities.

    (a) The HCA shall determine when a formal source selection process 
will be used and shall establish implementing procedures.
    (b) The formal source selection procedures shall include designating 
the CO as the individual responsible for the proper control and 
appropriate release of proprietary and source selection information 
after source selection.



Sec. 1415.305  Proposal evaluation.

    The CCO is authorized to make the determination to reject all 
proposals.

[[Page 801]]

                     Subpart 1415.4_Contract Pricing



Sec. 1415.404  Proposal analysis.



Sec. 1415.404-2  Information to support proposal analysis.

    The CO shall initiate an audit by sending a completed form DI-1902, 
Request for Audit, to the Assistant Inspector General for Auditing, OIG 
(see 1453.215-70).
    (a) The CO shall allow at least 30 working days in assigning a 
realistic deadline for receipt of the audit report. In exceptional 
circumstances 20 working days may be allowed but the circumstances shall 
be documented in the contract file.
    (b) Upon receipt of a DI-1902, the OIG will conduct the audit or 
arrange for its conduct by the cognizant audit agency in accordance with 
360 DM 3.7.
    (c) Upon receipt of the audit report, the CO and the price analyst 
(if assigned), shall discuss any questions regarding the report's 
contents with the cognizant auditor. If a question cannot be resolved or 
agreement cannot be reached on a recommendation in the report, the CO 
shall prepare a written statement for the contract file documenting the 
decision on the matter. A copy of the statement shall be promptly 
forwarded to the Assistant Inspector General for Auditing for 
information.



Sec. 1415.404-4  Profit.

    (a) DOI's policy is to use a structured approach for determining the 
profit or fee prenegotiation objective in acquisition actions that 
require cost analysis based on the profit analysis factors in FAR 
15.404-4, as implemented and supplemented in this section.
    (b) In addition to the factors listed in FAR 15.404-4(d), one 
additional factor, ``Other Costs,'' will be used in evaluating and 
determining a weighted profit or fee. For further guidance also refer to 
the Armed Services Pricing Manual (ASPM No. 1). The ``Other Costs'' 
factor shall include the contribution of all other direct costs 
including travel, direct support and hiring of consultants for contract 
performance.

[75 FR 19829, Apr. 15, 2010, as amended at 76 FR 50141, Aug. 12, 2011]



Sec. 1415.406  Documentation.



Sec. 1415.406-70  Department of the Interior price negotiation 
          memorandum (PNM).

    (a) Policy. In addition to the information required in FAR 15.406-3, 
the PNM prepared by the CO shall include the information in paragraph 
(c) of this section to the extent such information is applicable to the 
negotiation.
    (b) Applicability. (1) The CO shall prepare a PNM documenting the 
negotiation of the initial contract award and any subsequent 
modifications affecting price, cost or fee, including revisions to the 
prices of contracts awarded through sealed bidding procedures. A PNM is 
not required for unilateral modifications such as exercising fixed price 
options or issuing change orders. The memorandum is required for 
concluding changes and settlements of claims and for issuing orders 
under Blanket Ordering Agreements, task orders and delivery orders that 
involve the negotiation of prices, estimated quantities or amounts.
    (2) For simplified acquisitions conducted pursuant to FAR Part 13, 
the documentation requirements of 1413.106 and FAR 13.106 shall be 
followed.
    (c) Procedures. When the CO prepares the memorandum prescribed in 
FAR 15.406-3, the following additional information shall be included to 
the extent it applies to the contract action. Information already 
contained in the contract file or in a previous PNM shall be referenced 
by location:
    (1) A discussion of the reason(s) why sealed bidding is not 
appropriate as required by FAR 6.401 (or cross-reference the file 
location of the existing explanation);
    (2) A memorandum identifying the type of contract used and why it 
was selected as required by FAR 16.103(d). The file location of any 
required determination and findings authorizing use of this type of 
contract (see Part 1416);
    (3) A history of the contract action including: Whether the action 
was synopsized or the basis for exemption under FAR 5.202, and file 
location of the synopsis; consideration given to the use of set-asides 
and file location of

[[Page 802]]

DI-1886 (see Subpart 1419.2); solicitation issuance date, closing date 
for receipt of proposals and extensions; (iv) sources solicited 
(reference file location); late proposal or proposal modification 
information required by FAR 15.208; and the file location of 
``Justification for Other Than Full and Open Competition,'' if 
applicable.
    (4) Evaluation of proposal(s), including: Evaluation factors used 
and weights (FAR 15.304); results of initial proposal evaluation (FAR 
15.305); determination of competitive range (FAR 15.306); results of 
written or oral discussions conducted (FAR 15.306); discussion of final 
proposal revisions received (FAR 15.307) and results of final proposal 
evaluation; and basis for source selection. For formal source selection 
procedures (see 1415.303), information on the source selection plan, and 
the source selection decision including supporting documentation 
required by FAR 15.308.
    (5) If cost or pricing data were not required, the cost or price 
analysis performed in accordance with FAR 15.404-1.
    (6) If cost or pricing data were required, the cost analysis (FAR 
15.404-1(c)) performed; and cost realism analysis (FAR 15.404-1(d)) and 
technical analysis (FAR 15.404-1(e)) performed, as applicable to the 
procurement.
    (7) If an audit report was required (FAR 15.404-2), COs shall 
specifically describe actions taken in response to significant audit 
findings, including the monetary value and decisions made with regard to 
any of the audit's questioned costs; i.e., COs shall identify the value 
of the questioned costs, indicate whether they will allow or disallow 
them, and provide an explanation for their decisions. For purposes of 
this section, ``significant audit finding'' and ``questioned cost'' are 
defined as those findings and/or costs cited or questioned in an 
external audit because of their relationship to unallowable costs 
claimed, a failure to comply with regulations or the terms of the 
contract, mathematical errors, and/or the duplication of costs. 
Questions and/or disagreements between the CO, price analyst (if 
assigned) and cognizant auditor as to an audit report's interpretation 
or recommendations regarding ``significant audit finding'' and/or 
``questioned costs'' shall be clarified or resolved and appropriately 
documented. If a disagreement cannot be resolved or agreement cannot be 
reached, the CO shall prepare a written statement in the PNM that 
discusses the issue(s) in question and supports a final decision on the 
matter.
    (8) The basis for determining profit or fee as prescribed in FAR 
Subpart 15.404-4 and form DI-1920 (or file location).
    (d) Approval. The PNM shall be signed and dated by the contract 
specialist or contract negotiator who conducted the negotiation and 
approved by the CO.
    (e) Distribution. Whenever field pricing support has been obtained, 
copies of related PNMs shall be forwarded to the Assistant Inspector 
General for Auditing, OIG, not later than 15 days after the execution of 
the resulting contract, modification or close-out action.

                  Subpart 1415.6_Unsolicited Proposals



Sec. 1415.606  Agency procedures.

    The contact point for the receipt and coordination of unsolicited 
proposals is the contracting office, which will acknowledge and review 
the proposal contents and determine the proper activity within the 
bureau/office to evaluate and process the proposal. The policy or 
contracting office shall acknowledge unsolicited proposals and forward 
each one to the processing activity in an expeditious manner. Each 
bureau/office shall establish procedures for receipt, reproduction and 
disposition of unsolicited proposals consistent with the requirements of 
FAR 15.6.

                      PART 1416_TYPES OF CONTRACTS

                  Subpart 1416.2_Fixed-Price Contracts

Sec.

Sec. 1416.203 Fixed-price contracts with economic price adjustment.

Sec. 1416.203-4 Contract clauses.

                   Subpart 1416.4_Incentive Contracts


Sec. 1416.405 Contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

[[Page 803]]


    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                  Subpart 1416.2_Fixed-Price Contracts



Sec. 1416.203  Fixed-price contracts with economic price adjustment.



Sec. 1416.203-4  Contract clauses.

    An economic price adjustment clause based on actual cost of labor or 
material may be used after approval by the BPC, without the power of 
redelegation.

                   Subpart 1416.4_Incentive Contracts



Sec. 1416.405  Contract clauses.

    The BPC, without the power of redelegation, is authorized to approve 
an award fee clause to use in a solicitation when a cost-plus-award-fee 
contract is contemplated.

                  PART 1417_SPECIAL CONTRACTING METHODS

                         Subpart 1417.2_Options

Sec.

Sec. 1417.203 Solicitations.

Sec. 1417.206 Evaluation.

                Subpart 1417.4_Leader Company Contracting


Sec. 1417.402 Limitations.

            Subpart 1417.6_Management and Operating Contracts


Sec. 1417.602 Policy.

Sec. 1417.605 Award, renewal and extension.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                         Subpart 1417.2_Options



Sec. 1417.203  Solicitations.

    Option quantities in excess of the 50 percent limit may, in unusual 
circumstances, be approved by the CCO.



Sec. 1417.206  Evaluation.

    The determination in FAR 17.206(b) shall be approved by the CCO 
prior to soliciting offers.

                Subpart 1417.4_Leader Company Contracting



Sec. 1417.402  Limitations.

    Use of leader company contracting for a product, subject to the 
limitations in FAR 17.402, shall require advance discussion with the 
Director, PAM, prior to approval by the HCA. This authority may not be 
redelegated. Documentation shall include the circumstances requiring 
such action.

            Subpart 1417.6_Management and Operating Contracts



Sec. 1417.602  Policy.

    (a) The AS/PMB is authorized to approve the CO's determination to 
enter into, extend or renew any management and operating contract.
    (b) The CO shall prepared requests for authorization to enter into, 
extend or renew any management and operating contract shall be prepared 
by the CO and submitted by the HCA through the Director, PAM for 
approval by the AS/PMB. The request shall be submitted prior to 
solicitation for the requirement and shall:
    (1) Reference the statutory authority for the requirement;
    (2) Discuss the relationship between the requirement and the 
limitations in FAR 17.603;
    (3) Include a copy of the proposed contract schedule and evaluation 
factors for; and
    (4) If a noncompetitive procurement is proposed, include a copy of 
the Justification for Other than Full and Open Competition.
    (c) The HCA shall be responsible for conducting the reviews required 
by FAR 17.602(c) and taking required actions within the time limit 
prescribed.
    (d) The CO shall request authorization under paragraph (a) of this 
section for solicitation of offers for cost comparison purposes under 
OMB Circular A-76 (see FAR 7.3) for:

[[Page 804]]

    (1) Operation, maintenance, or support of a Government-owned or 
controlled special production or testing facility; or
    (2) Any other commercial or industrial service activity which, if 
performed by a contractor, would result in a management and operating 
contract as defined under FAR Subpart 17.6.



Sec. 1417.605  Award, renewal and extension.

    The CO shall review each management and operating contract prior to 
any extension or exercise of a renewal option. Any extension or renewal 
of a management and operating contract shall first be authorized as 
required in 1417.602.

                          PART 1418 [RESERVED]

[[Page 805]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 1419_SMALL BUSINESS PROGRAMS

                         Subpart 1419.2_Policies

Sec.

Sec. 1419.201 General policy.

Sec. 1419.202 Specific policies.

Sec. 1419.202-70 Acquisition screening and BUDS recommendations.

              Subpart 1419.5_Set-Asides for Small Business


Sec. 1419.503 Setting aside a class of acquisitions for small business.

Sec. 1419.503-70 Class set-aside for construction acquisitions.

Sec. 1419.505 Rejecting Small Business Administration recommendations.

Sec. 1419.506 Withdrawing or modifying small business set-asides.

    Subpart 1419.6_Certificates of Competency and Determinations of 
                             Responsibility


Sec. 1419.602 Procedures.

Sec. 1419.602-1 Referral.

        Subpart 1419.7_The Small Business Subcontracting Program


Sec. 1419.705 Responsibilities of the contracting officer under the 
          subcontracting assistance program.

Sec. 1419.705-2 Determining the need for a subcontracting plan.

Sec. 1419.705-3 Preparing the solicitation.

Sec. 1419.705-6 Postaward responsibilities of the contracting officer.

 Subpart 1419.8_Contracting with the Small Business Administration (the 
                              8(A) program)


Sec. 1419.803 Selecting acquisitions for the 8(a) program.

Sec. 1419.810 SBA Appeals.

     Subpart 1419.9_Contracting Opportunities for Women-Owned Small 
                               Businesses


Sec. 1419.901 Policy.

  Subpart 1419.10_Small Business Competitiveness Demonstration Program


Sec. 1419.1003 Purpose.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                         Subpart 1419.2_Policies



Sec. 1419.201  General policy.

    HCAs, without the power of redelegation, shall be responsible for 
the establishment of annual goals. The purpose of these goals is to 
increase participation of small business and small disadvantaged 
businesses in contract and subcontract opportunities. Goals for contract 
awards to minority business enterprises and women-owned businesses shall 
also be developed.
    (a) All program goals must comply with the criteria established by 
OSDBU and shall reflect improvement in participation of small businesses 
and small disadvantaged businesses. The goal setting process shall be 
conducted as follows:
    (1) Proposed goals are to be submitted by contracting activities to 
OSDBU by August 15th for the next fiscal year. To the greatest extent 
possible, the goals shall be based on advance acquisition plans (see 
Subpart 1407.1), budget justifications, and past performance.
    (2) OSDBU shall be responsible for consolidating bureau and office 
goals, performing trend analysis, and submitting proposed Departmental 
goals to SBA, and the Minority Business Development Agency (MBDA), 
Department of Commerce.
    (3) Bureau and office goals shall be negotiated and finalized with 
the OSDBU based on current plans and budget projections. OSDBU shall 
negotiate final Departmental goals with SBA, and MBDA.
    (4) Since goals are expressed as a percentage of planned acquisition 
dollars, final budget approvals may change specific dollar goals.
    (b) HCAs may request revision of goals from OSDBU when final budget 
approvals result in a change of plus or minus 15% in planned acquisition 
dollars or in instances when a disproportionate change in the mix of 
products or services is required. The goal setting process with the 
Bureau/Offices shall be completed by December 31st of each year.

[[Page 806]]

    (c) In accordance with 111 DM 8, OSDBU is responsible for performing 
all functions and duties prescribed in FAR 19.201(d) and for:
    (1) Developing and maintaining policies, procedures, regulations, 
and guidelines for the effective administration of the Department's 
small business and small disadvantaged business programs; and,
    (2) Providing functional direction and policy guidance to personnel 
in the implementation of the programs under paragraph (c)(1) of this 
section.
    (d) HCAs without authority to redelegate shall:
    (1) Appoint a full-time BUDS (e.g., procurement analyst or other 
non-operational contract person), for each contracting office where:
    (i) Annual contract obligations regularly exceed $20 million or 
represent a substantial part of the bureau's total contracting program; 
and,
    (ii) The number, type, and size of contract transactions provide 
sufficient opportunities for small business and small disadvantaged 
business participation.
    (2) Appoint a part-time BUDS (e.g., procurement analyst or other 
non-operational contract person), for each contracting office where the 
nature of the contracting program requires such action to ensure 
accomplishment of annual program goals;
    (e) Each BUDS shall perform the duties listed at FAR 
19.201(d)(5)(6), and (10), 405 DM 1, and in the BUDS Standard Operating 
Procedures Handbook (405 DM 2).



Sec. 1419.202  Specific policies.



Sec. 1419.202-70  Acquisition screening and BUDS recommendations.

    (a) For open market acquisitions estimated to exceed the SAT, the DI 
Form 1886, ``Acquisition Screening and Review Form,'' shall be completed 
by the CO and signed as indicated in Block 20 of the form. The completed 
form shall be placed in the solicitation/contract file prior to 
requesting quotations, publication of a FedBizOpps solicitation notice, 
or publication of a notice of intent to award a sole source contract.
    (b) For open market acquisitions estimated to be greater than the 
micro-purchase threshold and less than the SAT that are not reserved for 
small business or proceeding under the 8(a) program, the DI Form 1886 
shall be completed as specified in paragraph (a) of this section.
    (c) Open market acquisitions, including charge card transactions, 
estimated to be less than the micro-purchase threshold are not routinely 
screened, but may be upon request by the purchaser.
    (d) For Federal Supply Schedule competitions estimated to exceed the 
SAT and for which the source list contains less than three small 
businesses, the DI Form 1886 shall be completed as specified in 
paragraph (a) of this section.
    (e) Federal Supply Schedule buys below the SAT are not routinely 
screened, but may be upon request by the CO.
    (f) If the proposed method of acquisition is non-competitive, the 
Justification for Other than Full and Open Competition shall be attached 
to the DI Form 1886.
    (g) Advance acquisition plans developed pursuant to FAR Part 7 shall 
be attached to the DI Form 1886.
    (h) The CO shall document the rationale for not accepting a SBS 
recommendation on DI Form 1886, under ``Notes.'' (See FAR 19.202.) 
Disagreements between the CO and the SBS concerning the decision to use 
a set aside or the 8(a) program shall be resolved by the BPC. The BPC 
shall annotate the resolution, with signature, in the ``Notes'' section 
of the form. The BPC may consult with the OSDBU to obtain assistance in 
resolving the disagreement.

[75 FR 19829, Apr. 15, 2010, as amended at 76 FR 50142, Aug. 12, 2011]

              Subpart 1419.5_Set-Asides for Small Business



Sec. 1419.503  Setting aside a class of acquisitions.



Sec. 1419.503-70  Class set-aside for construction acquisitions.

    (a) Acquisitions for construction (as defined in FAR 2.101) 
estimated to cost

[[Page 807]]

$2 million or less shall be set-aside on a class basis for exclusive 
participation by small business concerns. This class set-aside does not 
apply when:
    (1) The acquisition is procured using simplified acquisition 
procedures;
    (2) Use of a set-aside is precluded by the Small Business 
Competitiveness Demonstration Program (SBCDP) (See FAR 19.10);
    (3) A non-competitive acquisition has been approved under the 
procedures of FAR 6.3;
    (4) Work is to be performed outside the U.S.; or
    (5) The BPC determines that adequate competition is not likely to be 
obtained if the acquisition is restricted to small business concerns, 
applying the requirements of FAR 19.202-2.
    (b) The use of such set-asides is contingent upon current policy in 
effect under application of the SBCDP (See FAR 19.10).



Sec. 1419.505  Rejecting Small Business Administration recommendations.

    (a) A written justification in support of the CO's decision to 
reject the set-aside recommendation shall be approved by the HCA. It 
shall then be forwarded for sequential review through the Director, 
OSDBU and the Director, PAM, for action by the AS/PMB.
    (b) As prescribed in FAR 19.505, the AS/PMB is authorized to reply 
to the Administrator of SBA on any SBA appeal of a contracting officer's 
set-aside recommendation.



Sec. 1419.506  Withdrawing or modifying small business set-asides.

    The HCA is authorized, without the power of redelegation, to resolve 
disagreements between the CO and the BUDS concerning withdrawals or 
modifications of individual or class set-asides as prescribed in FAR 
19.506. OSDBU shall be provided timely notification of such 
disagreements and the recommendation of the BUDS in order to provide 
assistance in resolving the disagreement.

    Subpart 1419.6_Certificates of Competency and Determinations of 
                             Responsibility



Sec. 1419.602  Procedures.



Sec. 1419.602-1  Referral.

    The CO shall obtain approval from the CCO for all determinations 
documenting a responsive small business' lack of responsibility prior to 
submission to the appropriate SBA office. A copy of the determination 
shall be sent to OSDBU.

        Subpart 1419.7_The Small Business Subcontracting Program



Sec. 1419.705  Responsibilities of the contracting officer under the 
          subcontracting assistance program.



Sec. 1419.705-2  Determining the need for a subcontracting plan.

    The CO's determination that no subcontract possibilities exist for a 
proposed contractual action shall be reviewed by the BUDS prior to the 
approval by a level above the CO, and a copy shall be forwarded to OSDBU 
within 5 working days of execution, but in no case later than the date 
of contract award. The BUDS may contact OSDBU and consider any comments 
or recommendations offered.



Sec. 1419.705-3  Preparing the solicitation.

    In solicitations containing subcontract plan requirements, COs 
should consider evaluating offered subcontract plans and the offerors' 
past subcontracting compliance and accomplishments in the evaluation and 
selection of proposals. This would be particularly appropriate for 
acquisitions known to offer significant subcontracting opportunities for 
small, small disadvantaged, and women-owned businesses or which include 
work previously performed by a small business. When used, this factor 
must be evaluated in such a way that the relative ranking or scoring of 
small business offerors is not adversely affected by the lack of a 
subcontract plan.

[[Page 808]]



Sec. 1419.705-6  Postaward responsibilities of the contracting officer.

    In addition to the actions specified in FAR 19.705-6, the CO shall 
also be responsible for the following:
    (a) Forwarding a copy of each approved subcontracting plan to OSDBU 
within 10 working days after approval of the plan.
    (b) Ensuring that the contractor forwards the original copy of the 
Standard Form 295, Summary Contracting Report, to the Department of the 
Interior, Director, OSDBU, 18th & C Streets, NW., Washington, DC 20240, 
Rm. 2747.
    (c) Forwarding a copy of the Standard Form 294, Subcontracting 
Report for Individual Contracts, received from individual contractors, 
within 10 working days, to OSDBU.
    (d) Conducting on-site business and economic development program 
management reviews (see 405 DM 1) of a prime contractor's small and 
disadvantaged business subcontracting program. Reviews shall be 
conducted as required based on problems perceived such as insufficient 
progress in meeting subcontracting goals. The result of the review shall 
be documented in writing using the format shown at 1453.303-70. At the 
discretion of the CO, the BUDS may conduct the reviews. In addition to 
required bureau/office internal distribution, a copy of the review 
report shall be submitted to OSDBU within 60 calendar days after 
completion of the review.

 Subpart 1419.8_Contracting with the Small Business Administration (The 
                              8(a) Program)



Sec. 1419.803  Selecting acquisitions for the 8(a) Program.

    The CO shall first screen the acquisition for suitability for award 
to SBA under the Section 8(a) program, before taking action under FAR 
19.501, 19.502 or 1419.503-70. After selecting acquisitions suitable for 
the 8(a) program, the contracting office shall provide SBA appropriate 
advance acquisition planning information for all acquisitions found to 
be suitable for the 8(a) program (See also 1407.1).



Sec. 1419.810  SBA appeals.

    AS/PMB, without the power of redelegation, is authorized to issue 
the decision on an SBA appeal of a CO's Section 8(a) decision.

     Subpart 1419.9_Contracting Opportunities for Women-Owned Small 
                               Businesses



Sec. 1419.901  Policy.

    In support of the Department's policy to facilitate, preserve, and 
strengthen women's business enterprises:
    (a) Annual goals for contract awards to women-owned businesses shall 
be established as prescribed in 1419.201(b); and
    (b) Small women-owned businesses shall be considered for 
subcontracting opportunities under FAR 19.702, and subcontract awards 
shall be reported as prescribed in FAR 19.704.
    (c) OSDBU, in accordance with 111 DM 8, is assigned the 
responsibility for carrying out the Department's women-owned business 
enterprise program.

  Subpart 1419.10_Small Business Competitiveness Demonstration Program



Sec. 1419.1003  Purpose.

    OSDBU is responsible for establishing the 10 targeted industry 
categories and monitoring DOI's participation.

                       PARTS 1420	1421 [RESERVED]

     PART 1422_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                   Subpart 1422.1_Basic Labor Policies

Sec.

Sec. 1422.101 Labor relations.

Sec. 1422.101-1 General.

Sec. 1422.101-3 Reporting labor disputes.

Sec. 1422.101-4 Removal of items from contractors' facilities affected 
          by work stoppages.

Sec. 1422.103 Overtime.

Sec. 1422.103-4 Approvals.

[[Page 809]]

       Subpart 1422.3_Contract Work Hours and Safety Standards Act


Sec. 1422.302 Liquidated damages and overtime pay.

   Subpart 1422.4_Labor Standards for Contracts Involving Construction


Sec. 1422.404 Davis-Bacon Act wage determinations.

Sec. 1422.404-6 Modifications of wage determinations.

Sec. 1422.406-8 Investigations.

Sec. 1422.406-9 Withholding from or suspension of contract payments.

Sec. 1422.406-13 Semiannual enforcement reports.

            Subpart 1422.6_Walsh-Healey Public Contracts Act


Sec. 1422.604 Exemptions.

Sec. 1422.604-2 Regulatory exemptions.

               Subpart 1422.8_Equal Employment Opportunity


Sec. 1422.803 Responsibilities.

Sec. 1422.804 Affirmative action programs.

Sec. 1422.804-2 Construction.

Sec. 1422.805 Procedures.

Sec. 1422.807 Exemptions.

        Subpart 1422.10_Service Contract Act of 1965, As Amended


Sec. 1422.1003 Applicability.

Sec. 1422.1003-4 Administrative limitations, variations, tolerances and 
          exemptions.

Subpart 1422.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans


Sec. 1422.1305 Waivers.

         Subpart 1422.14_Employment of Workers with Disabilities


Sec. 1422.1403 Waivers.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                   Subpart 1422.1_Basic Labor Policies



Sec. 1422.101  Labor relations.



Sec. 1422.101-1  General.

    The HCA may designate programs or requirements for which notice of 
labor disputes is necessary.



Sec. 1422.101-3  Reporting labor disputes.

    Labor disputes that may interfere with contract performance shall be 
reported to the SOL and the HCA.



Sec. 1422.101-4  Removal of items from contractors' facilities affected 
          by work stoppages.

    Prior to initiating any action for removal of items from 
contractors' facilities, the CO shall obtain advice from SOL.



Sec. 1422.103  Overtime.



Sec. 1422.103-4  Approvals.

    The CO shall obtain approval for the use of overtime from the CCO 
after consultation with the cognizant program office.

       Subpart 1422.3_Contract Work Hours and Safety Standards Act



Sec. 1422.302  Liquidated damages and overtime pay.

    (a) HCAs are authorized to take the action in FAR 22.302(c)
    (b) Funds withheld or collected for liquidated damages shall be 
disposed of in accordance with procedures under 1422.406-9.

   Subpart 1422.4_Labor Standards for Contracts Involving Construction



Sec. 1422.404  Davis-Bacon Act wage determinations.



Sec. 1422.404-6  Modifications of wage determinations.

    The HCA is authorized to request an extension for awards not made 
within 90 days after bid opening.



Sec. 1422.406-8  Investigations.

    (a) Labor standards investigations required by FAR 22.406-8 shall be 
the responsibility of the CO.
    (b) The CO's report of violations shall be submitted to the HCA, who 
is authorized to take the actions prescribed in FAR 22.406-8(d).
    (c) The HCA shall forward all referrals through the OIG to the 
Attorney General.

[[Page 810]]



Sec. 1422.406-9  Withholding from or suspension of contract payments.

    HCAs shall establish procedures for collection and disposition of 
funds withheld under FAR 22.406-9, including liquidated damages.



Sec. 1422.406-13  Semiannual enforcement reports.

    PAM is responsible for submitting the report required by FAR 22.406-
13 to DOL. In accordance with DOL memoranda, PAM requires bureaus to 
submit the required reports by April 15 and October 15 for the reporting 
periods of October 1 through March 31 and April 1 through September 30, 
respectively.

            Subpart 1422.6_Walsh-Healey Public Contracts Act



Sec. 1422.604  Exemptions.



Sec. 1422.604-2  Regulatory exemptions.

    The AS/PMB is authorized to request the Secretary of Labor to exempt 
contracts from the Walsh-Healey Public Contracts Act under FAR 22.604-
2(b). A written finding justifying the exemption shall be prepared by 
the CO and submitted by the HCA to the Director, PAM for further action.

               Subpart 1422.8_Equal Employment Opportunity



Sec. 1422.803  Responsibilities.

    The CO shall forward matters involving the applicability of EO 11246 
to the HCA for resolution. This authority is granted to the HCA without 
the power of redelegation.



Sec. 1422.804  Affirmative action programs.



Sec. 1422.804-2  Construction.

    Bureau contracting offices are responsible for maintaining 
(including updates and revisions) lists of geographic areas subject to 
affirmative action requirements.



Sec. 1422.805  Procedures.

    Copies of the poster ``Equal Employment Opportunity is the Law'' 
(National Stock No. 7690-00-926-8988) may be ordered from the GSA supply 
depot.



Sec. 1422.807  Exemptions.

    (a) The Director, PAM shall make the determination that a contract 
is essential to the national security and that the award of the contract 
without complying with one of the requirements of FAR 22.8 is necessary 
to national security.
    (b) Requests for exemptions shall be submitted in writing by the CO, 
through the HCA, to the Director, PAM.

        Subpart 1422.10_Service Contract Act of 1965, as Amended



Sec. 1422.1003  Applicability.



Sec. 1422.1003-4  Administrative limitations, variations, tolerances and 
          exemptions.

    The CO shall submit requests for determination regarding application 
of the Service Contract Act and exemptions directly to DOL, 
Administrator of the Wage and Hour Division.

Subpart 1422.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans



Sec. 1422.1305  Waivers.

    (a) The Director, PAM is authorized to:
    (1) Waive any or all terms of the clause at FAR 52.222-35, Equal 
Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, 
and Other Eligible Veterans, under the conditions prescribed in FAR 
22.1305(a), and
    (2) Waive any requirement in FAR Subpart 22.13 as prescribed in FAR 
22.1305(b).
    (b) Requests for waivers, under paragraph (a) of this section, shall 
be made in writing by the CO through the HCA to the Director, PAM for 
further action.

         Subpart 1422.14_Employment of Workers with Disabilities



Sec. 1422.1403  Waivers.

    The Director, PAM is authorized to waive any or all of the terms of 
the

[[Page 811]]

clause at FAR 52.222-36, Affirmative Action for Workers with 
Disabilities, under the conditions prescribed in FAR 22.1403(a), and 
waive any requirement in FAR Subpart 22.14 as prescribed in FAR 
22.1403(b). Requests for waivers shall be made in writing by the CO 
through the HCA to the Director, PAM.

                          PART 1423 [RESERVED]

       PART 1424_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 1424.1_Protection of Individual Privacy

Sec.

Sec. 1424.102 General.

Sec. 1424.103 Procedures.

Sec. 1424.104 Contract clauses.

               Subpart 1424.2_Freedom of Information Act.


Sec. 1424.203 Policy.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

             Subpart 1424.1_Protection of Individual Privacy



Sec. 1424.102  General.

    Procedures for implementing the Privacy Act of 1974 and Departmental 
regulations under 43 CFR part 2, subpart D, are contained in 383 DM.



Sec. 1424.103  Procedures.

    When required by FAR 24.103(b)(2), the CO shall provide the 
contractor with a copy of the Department's Privacy Act regulations 
codified in 43 CFR part 2, subpart D.



Sec. 1424.104  Contract clauses.

    The clause at FAR 52.224-1, Privacy Act Notification, as prescribed 
in FAR 24.104(a), shall be supplemented in accordance with 1452.224-1.

                Subpart 1424.2_Freedom of Information Act



Sec. 1424.203  Policy.

    (a) The Department's implementation of the Freedom of Information 
Act is codified in regulations under 43 CFR part 2, subparts A and B.
    (b) It is the policy of the Department to alert prospective 
contractors which place restrictions on the disclosure and use of 
proposal data that certain data may be subject to disclosure under a 
Freedom of Information Act request. (See 1415.207 and 1452.215-71.)

                      PART 1425_FOREIGN ACQUISITION

Sec.

Sec. 1425.003 Definitions.

                Subpart 1425.1_Buy American Act_Supplies


Sec. 1425.103 Exceptions.

Sec. 1425.105 Determining reasonableness of cost.

         Subpart 1425.2_Buy American Act_Construction Materials


Sec. 1425.202 Exceptions.

Sec. 1425.206 Noncompliance.

                    Subpart 1425.7_Prohibited Sources


Sec. 1425.701 Restriction on acquisition of supplies or services from 
          prohibited sources.

       Subpart 1425.10_Additional Foreign Acquisition Regulations


Sec. 1425.1001 Waiver of right to examination of records.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.



Sec. 1425.003  Definitions.

    Impracticable, as used in this subpart, includes reasons other than 
cost, and availability.
    Manufacture, as used in this subpart, means completion of an end 
product in the form required to meet specifications. It includes only 
direct incorporation of components into the end products to alter the 
original material and establish the identity/character of the

[[Page 812]]

end product, and excludes other supplies, materials, and requirements 
such as testing, manuals, related equipment, etc.

                Subpart 1425.1_Buy American Act_Supplies



Sec. 1425.103  Exceptions.

    (a) The AS/PMB is authorized to make the determination that a 
foreign end item will be acquired for Government use because preference 
for a U.S. item would be inconsistent with the public interest. Such 
determinations shall be prepared by the CO and submitted by the HCA to 
the Director, PAM for further action.
    (b) The Director, PAM is authorized to make the determination that 
an article, material or supply not included in the list under FAR 25.104 
is not mined, produced, or manufactured in the U.S. in sufficient and 
reasonably available commercial quantities of satisfactory quality. 
Determinations shall be prepared by the CO and submitted by the BPC for 
approval.
    (c) Contracting activities which have information justifying the 
removal of an item from the list under FAR 25.104 shall submit such 
information to the Director, PAM for further disposition.



Sec. 1425.105  Determining reasonableness of cost.

    (a) In unusual circumstances, the Director, PAM may authorize the 
use of evaluation differentials other than those prescribed in FAR 
25.105 for a particular acquisition.
    (b) Requests for use of other evaluation differentials shall be 
submitted by the HCA to the Director, PAM for further action.

         Subpart 1425.2_Buy American Act_Construction Materials



Sec. 1425.202  Exceptions.

    (a)(1) The CO may determine the reasonableness of cost as determined 
by the formula in 1425.203-70.
    (2) The Director, PAM has the authority to make the determination 
that use of U.S. construction material would be impracticable. Failure 
of the Director, PAM to issue a determination within 30 days after 
receipt of a request will be deemed approval for use of the cited 
foreign material.
    (3) For items not on the list at FAR 25.108(d), the CCO may make the 
non-availability determination if the items cost less than the SAT. The 
HCA may make the non-availability determination when the cost of the 
items exceeds the SAT.
    (b) [Reserved]



Sec. 1425.206  Noncompliance.

    The CO will report, in writing, any use of non-excepted, foreign 
construction materials by contractors, subcontractors and suppliers 
through the HCA to the Director, PAM for debarment action in accordance 
with Subpart 1409.4.

                    Subpart 1425.7_Prohibited Sources



Sec. 1425.701  Restriction on acquisition of supplies or services from 
          prohibited sources.

    The AS/PMB is authorized to request permission from the Office of 
Foreign Assets Control (OFAC) for DOI use of supplies and services from 
the sources described in FAR 25.701. Requests shall be prepared by the 
CO and submitted through the HCA to the Director, PAM.

       Subpart 1425.10_Additional Foreign Acquisition Regulations



Sec. 1425.1001  Waiver of right to examination of records.

    The Director, PAM is authorized to make the determinations 
prescribed in FAR 25.1001(b). Determinations shall be prepared by the CO 
and submitted through the HCA to the Director, PAM.

                 PART 1426_OTHER SOCIOECONOMIC PROGRAMS

                    Subpart 1426.70_Indian Preference

Sec.

Sec. 1426.7000 Scope of subpart.

Sec. 1426.7001 Definitions.

Sec. 1426.7002 Statutory requirements.

Sec. 1426.7003 Applicability and contract clause.

Sec. 1426.7004 Compliance enforcement.

Sec. 1426.7005 Tribal preference requirements.

[[Page 813]]

                Subpart 1426.71_Minority Business Reports


Sec. 1426.7100 Scope of subpart.

Sec. 1426.7101 Definitions.

Sec. 1426.7102 Minority Business Development Agency (MBDA-91) Plan and 
          Reports.

Sec. 1426.7102-1 Statutory basis.

Sec. 1426.7102-2 Requirements.

Sec. 1426.7103 The Comprehensive Environmental Response, Compensation, 
          and Liability Act (CERCLA) (Superfund Minority Contractors 
          Utilization Report).

Sec. 1426.7103-1 Statutory basis.

Sec. 1426.7103-2 Requirements.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                    Subpart 1426.70_Indian Preference



Sec. 1426.7000  Scope of subpart.

    This subpart prescribes policies and procedures for implementation 
of Section 7(b) of the Indian Self-Determination and Education 
Assistance Act (Pub. L. 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b)).



Sec. 1426.7001  Definitions.

    For purposes of this subpart the following definitions shall apply:
    Indian means a person who is a member of an Indian Tribe. If the 
contractor has reason to doubt that a person seeking employment 
preference is an Indian, the contractor shall grant the preference but 
shall require the individual within thirty (30) days to provide evidence 
from the Tribe concerned that the person is a member of the Tribe.
    Indian organization means that governing body of any Indian Tribe or 
entity established or recognized by such governing body in accordance 
with the Indian Financing Act of 1974 (88 Stat. 77; 25 U.S.C. 1451).
    Indian-owned economic enterprise means any Indian-owned commercial, 
industrial, or business activity established or organized for the 
purpose of profit provided that such Indian ownership shall constitute 
not less than 51 percent of the enterprise.
    Indian reservation includes Indian reservations, public domain 
Indian allotments, former Indian reservations in Oklahoma, and land held 
by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act, (85 Stat. 688; 43 U.S.C. 1601 et seq.).
    Indian Tribe means an Indian Tribe, band, nation, or other 
recognized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    On or near an Indian reservation means on a reservation or the 
distance within that area surrounding an Indian reservation(s) that a 
person seeking employment could reasonably be expected to commute to and 
from in the course of a work day.



Sec. 1426.7002  Statutory requirements.

    Section 7(b) of the Indian Self-Determination and Education 
Assistance Act requires that any contract or subcontract entered into 
pursuant to that Act, the Act of April 16, 1934 (48 Stat. 596; 25 U.S.C. 
452), as amended (the Johnson-O'Malley Act), or any other Act 
authorizing contracts with Indian organizations or for the benefit of 
Indians shall require that, to the greatest extent feasible:
    (a) Preferences and opportunities for training and employment in 
connection with the administration of such contracts shall be given to 
Indians, and
    (b) Preference in the award of subcontracts in connection with the 
administration of such contracts shall be given to Indian organizations 
and to Indian-owned economic enterprises as defined in Section 3 of the 
Indian Financing Act of 1974 (Sec. 3, Pub. L. 93-262; 88 Stat. 77; 25 
U.S.C. 1452).



Sec. 1426.7003  Applicability and contract clause.

    (a) The CO shall insert the clause at 1452.226-70, Indian 
Preference--Department of the Interior, in solicitations issued and 
contracts awarded by:
    (1) The Bureau of Indian Affairs;
    (2) A contracting activity other than the Bureau of Indian Affairs 
when the contract is entered into pursuant to an

[[Page 814]]

act specifically authorizing contracts with Indian organizations; and,
    (3) A contracting activity other than the Bureau of Indian Affairs 
where the work to be performed is specifically for the benefit of 
Indians and is in addition to any incidental benefits which might 
otherwise accrue to the general public.
    (b) The CO shall insert the clause at 1452.226-71, Indian Preference 
Program--Department of the Interior, in all solicitations issued and 
contracts awarded by a contracting activity which may exceed $50,000, 
which contain the clause required by paragraph (a) of this section and 
where it is determined by the CO, prior to solicitation, that the work 
under the contract will be performed in whole or in part on or near an 
Indian reservation(s). The Indian Preference Program clause may also be 
included in solicitations issued and contracts awarded by a contracting 
activity which may not exceed $50,000, but which contain the clause 
required by paragraph (a) of this section and which, in the opinion of 
the CO, offer substantial opportunities for Indian employment, training 
or subcontracting.



Sec. 1426.7004  Compliance enforcement.

    (a) The CO is responsible for conducting periodic reviews of the 
contractor to ensure compliance with the requirements of the clauses 
prescribed in 1426.7003. These reviews may be conducted with the 
assistance of the Indian Tribe(s) concerned.
    (b) Complaints of noncompliance with the requirements of the clauses 
prescribed under 1426.7003 received in writing by the contracting 
activity shall be promptly investigated by the CO. A written disposition 
of the complaint shall be prepared by the CO.



Sec. 1426.7005  Tribal preference requirements.

    (a) Where the work under a contract is to be performed on an Indian 
reservation, the CO may supplement the clause at 1452.226-71, Indian 
Preference Program--Department of the Interior, by adding specific 
Indian preference requirements of the Tribe on whose reservation the 
work is to be performed. The supplemental requirements shall be jointly 
developed for the contract by the CO and the Tribe. Supplemental 
preference requirements must represent a further implementation of the 
requirements of Section 7(b) of Public Law 93-638 and must be approved 
by the SOL for legal sufficiency before being added to a solicitation 
and resultant contract. Any supplemental preference requirements to be 
added to the clause at 1452.226-71 shall be included in the solicitation 
and clearly identified in order to ensure uniform understanding of the 
additional requirements by all prospective bidders or offerors.
    (b) Nothing in this section shall be interpreted to preclude Tribes 
from independently developing and enforcing their own tribal preference 
requirements. Such independently developed tribal preference 
requirements shall not, except as provided in paragraph (a) of this 
section, become a requirement in contracts covered under this subpart 
1426.70 and must not hinder the Government's right to award contracts 
and to administer their provisions.

                Subpart 1426.71_Minority Business Reports



Sec. 1426.7100  Scope of subpart.

    This subpart sets forth reporting requirements established by 
Executive Order 12432 entitled ``Minority Business Enterprise 
Development'' and the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA), also known as ``Superfund.''



Sec. 1426.7101  Definitions.

    For purposes of this subpart the following definitions shall apply:
    Contract means a contract or subcontract awarded pursuant to the 
FAR, as well as federal financial assistance, including a subcontract, 
cooperative agreement, grant, subagreement or subgrant.
    Minority business enterprise means a business which is at least 51% 
owned by one or more minority individuals, or in the case of any 
publicly owned business, at least 51% of the voting stock is owned by 
one or more minority individuals. The daily business operations are 
likewise managed by the minority owner.

[[Page 815]]

    Minority individual means a U.S. citizen who has been subjected to 
racial or ethnic prejudice or cultural bias because of their identity as 
members of this group without regard to their individual qualities. Such 
groups include, but are not limited to: Black Americans; Hispanic 
Americans; Native Americans; Asian-Pacific Americans; and other groups 
whose members are U.S. citizens and are found to be disadvantaged by the 
Small Business Administration pursuant to Section 8(d) of the Small 
Business Act as amended (15 U.S.C. 637(d)), or the Secretary of 
Commerce.
    (a) Native Americans are persons having origins in any of the 
original peoples of North America or the Hawaiian Islands; in 
particular, American Indians, Eskimos, Aleuts and Native Hawaiians.
    (b) Asian-Pacific Americans--persons having origins from Japan, 
China, the Philippines, Vietnam, Korea, Samoa, Guam, the U.S. Trust 
Territories of the Pacific, Northern Marianas, Laos, Cambodia, Taiwan, 
Thailand, Malaysia, Indonesia, Singapore, Brunei, Republic of the 
Marshall Islands, or the Federated States of Micronesia.



Sec. 1426.7102  Minority Business Development Agency (MBDA-91) Plan and 
          Reports.



Sec. 1426.7102-1  Statutory basis.

    Executive Order 12432, dated July 14, 1983, established the 
requirement for the Department of Commerce (i.e., MBDA) to collect 
information on acquisition and financial assistance awards to minority 
businesses, as well as credit assistance to such firms.



Sec. 1426.7102-2  Requirements.

    (a) MBDA-91 Plan. The BPC is required to submit the Plan on form 
MBDA-91 to the OSDBU by no later than November 15 of each year. Section 
1 of the form, ``Procurement Program Activities,'' will be completed by 
OSDBU. Sections 2 through 5 must be completed by bureaus and offices.
    (b) MBDA-91 Reports. The BPC must submit reports to the OSDBU within 
30 days following the end of a fiscal quarter. Reports are cumulative 
from October 1 of the reporting fiscal year, and monetary figures should 
be rounded to whole dollars in each section of the report.
    (c) ``Negative report'' means when the Bureau had no reportable 
activity during the quarter. Submit such a report using the MBDA-91 
report form.



Sec. 1426.7103  The Comprehensive Environmental Response, Compensation, 
          and Liability Act (CERCLA) (Superfund Minority Contractors 
          Utilization Report).



Sec. 1426.7103-1  Statutory basis.

    Paragraph 105 of CERCLA requires the President of the United States 
to consider the availability of qualified minority business enterprises 
in awarding contracts under the Act and report annually to Congress on 
the extent of such awards, including the efforts made to encourage the 
participation of such firms in programs carried out under the act. The 
Environmental Protection Agency has delegated responsibility for 
preparing the report, which includes contracts for Superfund hazardous 
waste clean-up awarded by other agencies.



Sec. 1426.7103-2  Requirements.

    The contracting offices shall report designated projects funded with 
EPA monies, involving the actual award of contracts, subcontracts, 
financial assistance instruments, subagreements, etc. by DOI. Do not 
include Departmental projects covered by Superfund and funded solely 
with Departmental appropriations. The BPC must submit one of the 
following reports inclusive of all projects, as applicable, to the OSDBU 
by no later than November 8 of each year:
    (a) EPA Forms 6005-3 and 6005-3A for applicable Superfund contract 
awards, including partial awards to minority businesses.
    (b) EPA Form 6005-3A only, for applicable Superfund contract awards 
when no awards were made to minority firms, to report the efforts made 
to promote minority business participation in the designated projects.
    (c) ``Negative Report'' when the reporting Bureau did not award 
contracts using Superfund monies.

[[Page 816]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 1427_PATENTS, DATA, AND COPYRIGHTS

                  Subpart 1427.2_Patents and Copyrights

Sec.

Sec. 1427.201 Patent and copyright infringement liability.

Sec. 1427.201-2 Contract clauses.

Sec. 1427.202 Royalties.

Sec. 1427.202-3 Adjustment of royalties.

         Subpart 1427.3_Patent Rights Under Government Contracts


Sec. 1427.303 Contract clauses.

Sec. 1427.304 Procedures.

Sec. 1427.304-1 General.

Sec. 1427.304-4 Appeals.

Sec. 1427.306 Licensing background patent rights to third parties.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                  Subpart 1427.2_Patents and Copyrights



Sec. 1427.201  Patent and copyright infringement liability.



Sec. 1427.201-2  Contract clauses.

    Approval to exempt specific United States patents from the patent 
indemnity clause shall be obtained from the CCO with legal review and 
concurrence.



Sec. 1427.202  Royalties.



Sec. 1427.202-3  Adjustment of royalties.

    The CO shall report to the Assistant Solicitor for Acquisitions and 
Intellectual Property the results of any action taken in compliance with 
FAR 27.202-3.

        Subpart 1427.3_Patent Rights Under Government Contracts.



Sec. 1427.303  Contract clauses.

    (a) The HCA is authorized to make the determination to sublicense 
foreign governments or international organizations, as prescribed in FAR 
27.303(b)(3).
    (b) If one of the exceptions in FAR 27.303(e)(1) is used, then 
insert clause 1452.227-70, Appeals of Use of Exceptions. The exception 
in FAR 27.303(e)(1)(ii) to use alternative provisions restricting or 
eliminating a contractor's right to retain title to any subject 
invention shall be made by the HCA, after consultation with the 
Assistant Solicitor for Acquisitions and Intellectual Property.
    (c) Within 30 days after contract award the CO shall forward copies 
of determinations to use exceptions under FAR 27.303(e)(1) shall be 
forwarded to the Assistant Solicitor for Acquisitions and Intellectual 
Property for submission to the Secretary of Commerce and, if required, 
to the Chief Counsel for Advocacy of the Small Business Administration. 
The determinations shall include all supporting documentation.



Sec. 1427.304  Procedures.



Sec. 1427.304-1  General.

    (a)(1) Exceptions. The Associate Solicitor for the General Law 
Division shall issue a decision on the appeal of a small business 
concern or nonprofit organization of the use of exceptions under FAR 
27.303(e)(1).
    (2) If the Associate Solicitor for the General Law Division 
determines that the appeal notice raises a genuine dispute over the 
material facts, a fact-finding hearing shall be conducted by OHA. The 
hearing shall be conducted at a location convenient to the parties 
concerned as determined by the Director, OHA, and on a date and time 
stated. The contractor may be represented by counsel or any duly 
authorized representative. Witnesses may be called by either party. The 
proceedings shall be conducted expeditiously and in such a manner that 
each party will have a full opportunity to present all information 
considered pertinent to the determination. A transcribed record of the 
proceedings shall be made and shall be made available at cost to the 
contractor upon request, unless the requirement for the transcribed 
record is waived by mutual agreement of the contractor and OHA.
    (3) OHA shall prepare written findings of fact and transmit them to 
the

[[Page 817]]

Associate Solicitor for the General Law Division.
    (4) OHA may hear oral arguments after fact-finding provided that the 
contractor, its counsel or other duly authorized representative, is 
present in order to have the opportunity to make arguments and rebuttal. 
The Associate Solicitor for the General Law Division shall issue a 
decision.
    (b) Greater rights determinations. Determinations on requests for 
greater rights in subject inventions by contractors shall be made by the 
HCA after consultation with the Assistant Solicitor for Acquisitions and 
Intellectual Property. Appeals of such determinations shall be made to 
the CBCA.
    (c) Exercise of march-in-rights. After notification to the 
contractor of information warranting the exercise of march-in rights, 
the CO shall prepare a written notice to the contractor after 
consultation with the Assistant Solicitor for Acquisitions and 
Intellectual Property. The notice shall be prepared and signed by the 
Associate Solicitor for the General Law Division. Within the time 
constraints, if the Associate Solicitor for the General Law Division 
determines any information submitted by the contractor (assignee or 
exclusive licensee) after notice of march-in is received raises a 
genuine dispute over material facts, a fact-finding hearing shall be 
conducted by OHA. The Associate Solicitor for the General Law Division 
shall issue a final determination, after consideration of any further 
written or oral arguments from the parties. An unfavorable determination 
to a contractor (assignee or exclusive licensee) shall be subject to 
appeal.
    (d) Licenses and assignments under contracts with nonprofit 
organizations. COs may approve contractor requests for assignment of 
rights or exclusive licenses after obtaining the advice of the Assistant 
Solicitor for Acquisitions and Intellectual Property. Solicitations 
containing FAR clause 52.227-11 shall state that contractors should 
forward such requests to the CO.



Sec. 1427.304-4  Appeals.

    (a) The CO is authorized to make any of the determinations listed 
after consultation with the Assistant Solicitor for Acquisitions and 
Intellectual Property.
    (b) Determinations made under paragraph (a) of this section shall be 
considered final decisions under the Contract Disputes Act and may be 
appealed to the CBCA in accordance with the procedures in DIAR Subpart 
1433.2.



Sec. 1427.306  Licensing background patent rights to third parties.

    Any proposed determination to be made to require third party 
licensing shall be submitted by the HCA through the Assistant Solicitor 
for Acquisitions and Intellectual Property for signature of the AS/PMB. 
The contractor may request a public hearing on the record prior to the 
above determination. In such cases, the proposed determination and the 
contractor's request for a hearing shall be referred to OHA. OHA shall 
conduct public hearings as set forth in 1427.304-1(a)(4) and shall 
forward its findings and recommendations to the AS/PMB for a final 
determination. The final determination shall inform the contractor of 
the right to judicial review within sixty (60) days of the AS/PMB 
determination.

                      PART 1428_BONDS AND INSURANCE

                        Subpart 1428.3_Insurance

Sec.

Sec. 1428.301 Policy.

Sec. 1428.306 Insurance under fixed-price contracts.

Sec. 1428.306-70 Insurance for aircraft services contracts.

Sec. 1428.311 Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.

Sec. 1428.311-1 Contract clause.

Sec. 1428.311-2 Agency solicitation provisions and contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                        Subpart 1428.3_Insurance



Sec. 1428.301  Policy.

    It is the policy of DOI to insure its own risks only when such 
action is in the best interest of the Government.

[[Page 818]]

Circumstances where contractors are required to carry insurance are 
listed under FAR 28.301 and 28.306. In these circumstances, the CO shall 
insert the clause at 1452.228-70, Liability Insurance-- Department of 
the Interior, in solicitations and contracts.



Sec. 1428.306  Insurance under fixed-price contracts.



Sec. 1428.306-70  Insurance for aircraft services contracts.

    (a) Policy. The CO shall insert minimum insurance requirements in 
aircraft services contracts in order to protect the Government and its 
contractors.
    (b) Applicability. The clauses prescribed in section 1428.311-2 are 
applicable to all fixed-price contracts involving use of aircraft with 
either a contractor-furnished or a Government-furnished pilot except for 
one-time charters when Government exposure is minimal and time 
limitations are present.



Sec. 1428.311  Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.



Sec. 1428.311-1  Contract clause.

    The CO shall modify the clause at FAR 52.228-7, Insurance--Liability 
to Third Persons, in accordance with 1452.228-7, and insert in 
solicitations and contracts as prescribed in FAR 28.311-1.



Sec. 1428.311-2  Agency solicitation provisions and contract clauses.

    The following DOI clauses shall be used as prescribed:
    (a) The CO shall insert the clause at 1452.228-71, Aircraft and 
General Public Liability Insurance--Department of the Interior, in 
solicitations and contracts when a fixed-price contract for operation of 
aircraft is anticipated and where the Government is using a contractor-
furnished pilot.
    (b) The CO shall insert the clause at 1452.228-72, Liability for 
Loss or Damage--Department of the Interior, in solicitations and 
contracts when a fixed-price contract for use of aircraft is anticipated 
and where the Government does not have a property interest and is using 
a Government-furnished pilot.
    (c) The CO shall insert the clause at 1452.228-73, Liability for 
Loss or Damage (Property Interest)--Department of the Interior, in 
solicitations and contracts when a fixed-price contract for use of 
aircraft is anticipated and where the Government has a property interest 
in the aircraft and is using a Government-furnished pilot (e.g., a lease 
with purchase option).

                             PART 1429_TAXES

                  Subpart 1429.3_State and Local Taxes

Sec.

Sec. 1429.303 Application of State and local taxes to Government 
          contractors and subcontractors.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                  Subpart 1429.3_State and Local Taxes



Sec. 1429.303  Application of State and local taxes to Government 
          contractors and subcontractors.

    Contractors to be treated as agents of the Government for the 
purposes set forth in FAR 29.303(a) shall require the written review and 
approval of the AS/PMB. The HCA shall submit requests for approval 
through SOL, to the Director, PAM, for further action.

           PART 1430_COST ACCOUNTING STANDARDS ADMINISTRATION

                 Subpart 1430.2_CAS Program Requirements

Sec.

Sec. 1430.201 Contract requirements.

Sec. 1430.201-5 Waiver.

Sec. 1430.202 Disclosure requirements.

Sec. 1430.202-2 Impracticality of submission.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

[[Page 819]]

                 Subpart 1430.2_CAS Program Requirements



Sec. 1430.201  Contract requirements.



Sec. 1430.201-5  Waiver.

    The CO shall prepare requests to waive contractor compliance with 
CAS prescribed in FAR 30.201-5 and 48 CFR 9903.201-5(e) (FAR Appendix). 
The CO shall submit the request for waiver to the Director, PAM, without 
the power of redelegation, for a determination. PAM must report any 
waivers granted on a fiscal year basis to the CASB in accordance with 
FAR 30.201-5(e).



Sec. 1430.202  Disclosure requirements.



Sec. 1430.202-2  Impracticality of submission.

    The CO shall prepare any request to award a contract without the 
required contractor submission of the Form No. CASB-DS-1, Disclosure 
Statement, and submit it through the HCA, to the Director, PAM, and to 
the Secretary for approval. The Secretary, without the power of 
redelegation, must file a report to CASB within 30 days in accordance 
with 48 CFR 9903.202-2 (FAR Appendix).

            PART 1431_CONTRACT COST PRINCIPLES AND PROCEDURES

                      Subpart 1431.1_Applicability

Sec.

Sec. 1431.101 Objectives.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                      Subpart 1431.1_Applicability



Sec. 1431.101  Objectives.

    Individual deviations concerning cost principles and procedures 
shall require the approval of the cognizant Assistant Secretary, with 
further redelegation authorized. Redelegation is limited to the BPC.

                      PART 1432_CONTRACT FINANCING

          Subpart 1432.1_Non-Commercial Item Purchase Financing

Sec.

Sec. 1432.102 Description of contract financing methods.

          Subpart 1432.3_Loan Guarantees for Defense Production


Sec. 1432.304 Procedures.

Sec. 1432.304-2 Certificate of eligibility.

        Subpart 1432.4_Advance Payments for Non-Commercial Items


Sec. 1432.402 General.

Sec. 1432.407 Interest.

             Subpart 1432.5_Progress Payments Based on Costs


Sec. 1432.501 General.

Sec. 1432.501-2 Unusual progress payments.

Sec. 1432.502-2 Contract finance office clearance.

                      Subpart 1432.6_Contract Debts


Sec. 1432.602 Responsibilities.

Sec. 1432.610 Compromising debts.

                      Subpart 1432.9_Prompt Payment


Sec. 1432.903 Responsibilities.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

          Subpart 1432.1_Non-Commercial Item Purchase Financing



Sec. 1432.102  Description of contract financing methods.

    Use of progress payments based on a percentage or stage of 
completion are authorized for construction contracts. Progress payments 
for other than construction, alteration, and repair contracts require 
the CO to write a determination that:
    (a) Payments based on costs would be impracticable; and
    (b) Adequate measures exist for determining quality standards and 
the percentage of work accomplished.

[[Page 820]]

          Subpart 1432.3_Loan Guarantees for Defense Production



Sec. 1432.304  Procedures.



Sec. 1432.304-2  Certificate of eligibility.

    Guaranteed loan applications shall be authorized and transmitted to 
the Federal Reserve Board by the AS/PMB, in accordance with FAR 32.304-
2(h).

        Subpart 1432.4_Advance Payments for Non-Commercial Items



Sec. 1432.402  General.

    The HCA is authorized to approve determinations and findings, as 
well as contract terms, for advance payments. The CO shall submit a 
recommendation for approval or disapproval of the contractor's request 
to the HCA through the head of the bureau finance office.



Sec. 1432.407  Interest.

    The HCA may authorize advance payments without interest pursuant to 
FAR 32.407.

             Subpart 1432.5_Progress Payments Based on Costs



Sec. 1432.501  General.



Sec. 1432.501-2  Unusual progress payments.

    The CO shall obtain the advance approval of the HCA, or designee, 
before providing a progress payment rate higher than the customary rates 
as defined in FAR 32.501-1. Advance approval to provide progress payment 
rates higher than the customary rates shall not be delegated lower than 
the CCO.



Sec. 1432.502-2  Contract finance office clearance.

    The CO shall obtain approval of the bureau finance office prior to 
taking actions listed in FAR 32.502-2.

                      Subpart 1432.6_Contract Debts



Sec. 1432.602  Responsibilities.

    344 DM contains policy, standards, and guidelines for collection of 
debts within DOI. Each bureau and office is responsible for developing 
an internal debt collection system and prescribing internal procedures 
for collection of debts, including debts covered under FAR Subpart 32.6.



Sec. 1432.610  Compromising debts.

    The CO may recommend compromise of contractor actions pursuant to 
FAR 32.610, but shall consult 344 DM and SOL for further action.

                      Subpart 1432.9_Prompt Payment



Sec. 1432.903  Responsibilities.

    The CO may modify the timing of payment specified in paragraph 
(a)(1)(i) and (ii) of the clause FAR 52.232-26, Prompt Payment for 
Fixed-Price Architect-Engineer Contracts, and/or paragraph (a)(1)(i) and 
(ii) of the clause at FAR 52.232-27, Prompt Payment for Construction 
Contracts, as appropriate, to provide for a period shorter than 30 days 
(but not less than 7 days) for making contract financing payments based 
on geographical site location, workload, contractor ability to submit a 
proper request for payment, or other factors. When considering a 
modification to these FAR standard(s), the CO should alert the finance 
and program officials involved in the payment process to ensure that 
such shorter contract payment terms to be specified in the solicitation 
and resulting contract will be met. A CO determination justifying a 
shorter payment period must be documented in writing, and incorporated 
into the solicitation/contract file.

                PART 1433_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 1433.1_Protests

Sec.

Sec. 1433.102 General.

Sec. 1433.103 Protests to the agency.

Sec. 1433.104 Protests to GAO.

Sec. 1433.106 Solicitation provisions and contract clauses.

                   Subpart 1433.2_Disputes and Appeals


Sec. 1433.203 Applicability.

Sec. 1433.209 Suspected fraudulent claims.

Sec. 1433.211 Contracting officer's decision.

Sec. 1433.213 Obligation to continue performance.

[[Page 821]]


Sec. 1433.214 Alternative dispute resolution (ADR).

Sec. 1433.215 Contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                         Subpart 1433.1_Protests



Sec. 1433.102  General.

    For protests filed with GAO, the SOL shall be responsible for 
handling all bid protest matters. Any communications to GAO shall be 
coordinated with the regional and/or field solicitor and the Assistant 
Solicitor, Acquisitions and Intellectual Property.



Sec. 1433.103  Protests to the agency.

    For protests filed with the agency, the CO shall coordinate with the 
regional and/or field solicitor and the Assistant Solicitor, 
Acquisitions and Intellectual Property, prior to making the protest 
decision and before suspending or terminating a contract award as a 
result of the protest. When a protest is denied by the CO, the decision 
issued shall advise the protester that the decision may be appealed to 
the GAO. All protest decisions must also contain a notice that appeals 
to GAO must include a copy of the CO's protest decision.



Sec. 1433.104  Protests to GAO.

    (a) General procedure. (1) A protester shall furnish a copy of its 
complete protest simultaneously to the CO and the Assistant Solicitor, 
Acquisitions and Intellectual Property. Upon being telephonically 
advised by the GAO of the receipt of a protest, the SOL shall inform the 
appropriate contracting activity which shall immediately notify the CO. 
For protests concerning Federal Information Processing (FIP) 
acquisitions, the SOL shall also inform the Director, Office of 
Information Resources Management (PIR), who, in turn, shall notify the 
appropriate bureau Information Resources Management contact and GSA 
official. The CO shall prepare the protest report as required by FAR 
33.104(a)(3).
    (2) The SOL will furnish promptly GAO's written notice of the 
protest to the cognizant contracting activity which, in turn, shall 
promptly transmit copies to the CO. The CO shall begin notification as 
prescribed in FAR 33.104(a)(2). The notification letters shall contain a 
specified period of time for submission of comments and include 
instructions that any comments submitted to the GAO should also be 
submitted simultaneously to the CO and the Assistant Solicitor, 
Acquisitions and Intellectual Property. Copies of the CO's notification 
letters shall be sent concurrently to the Assistant Solicitor, 
Acquisitions and Intellectual Property.
    (3)(i) The contracting activity shall have no more than 15 working 
days from the date of telephonic notification by the SOL to deliver the 
protest report to the Assistant Solicitor, Acquisitions and Intellectual 
Property. For reports involving use of the 10 working day express 
option, the SOL shall establish the report delivery date after 
consultation with the contracting activity.
    (ii) If required, the SOL shall make the request for an extension in 
the report due date.
    (iii) In addition to the requirements of FAR 33.104(a)(3), the 
report shall be appropriately titled and dated; shall cite the GAO file 
number; and shall be signed by the CO. Reports shall be prepared with 
the assistance of the local attorney-advisor of the SOL. A statement 
shall be included giving an estimate of the length of time an award may 
be delayed without significant expense or difficulty in performance. If 
appropriate, the report shall contain a statement regarding any urgency 
for the acquisition and the extent to which a delay in award may result 
in significant performance difficulties or additional expense to the 
Government. The contracting activity shall submit the CO's report to the 
Assistant Solicitor, Acquisitions and Intellectual Property, who will 
then submit it to GAO and provide a copy to each interested party who 
responded to the notification pursuant to FAR 33.104(a)(2).
    (b) Protests before award. (1) The finding to award, notwithstanding 
protest, shall be written by the CO, reviewed by the SOL, and approved 
by the HCA. A copy of the approved written finding shall be placed in 
the contract file.

[[Page 822]]

    (2) The SOL shall be responsible for notifying GAO of the finding to 
award notwithstanding protest.
    (c) Protests after award. (1) The CO shall notify the SOL prior to 
suspending or terminating the awarded contract.
    (2) The written finding to authorize continued contract performance, 
notwithstanding protest, shall be written by the CO, reviewed by the 
SOL, and approved by the HCA.
    (3) The SOL shall be responsible for notifying GAO of the finding to 
continue contract performance not withstanding protest.
    (d) Notice to GAO. The CO shall prepare the report required by FAR 
33.104(g), and coordinate it with the Assistant Solicitor, Acquisitions 
and Intellectual Property, and the Director, PAM, prior to HCA signature 
(signature level not redelegable). For protests regarding FIP 
acquisitions, the CO shall also coordinate the report with the Director, 
PIR. After signature, the report shall be forwarded to the Assistant 
Solicitor for Acquisitions and Intellectual Property for transmission to 
GAO.



Sec. 1433.106  Solicitation provisions and contract clauses.

    The provision at FAR 52.233-2, Service of Protest, as prescribed in 
FAR 33.106, shall be modified in accordance with the instructions in 
DIAR 1452.233-2.

                   Subpart 1433.2_Disputes and Appeals



Sec. 1433.203  Applicability.

    (a) The CO shall prepare any determination that application of the 
Contract Disputes Act to contracts with a foreign or international 
organization would not be in the public interest and forward it to the 
HCA for review. The HCA shall be responsible for submitting the 
determination through the Director, PAM, to the AS/PMB for approval.
    (b) The CBCA is authorized by the Contract Disputes Act or by the 
Secretary to consider and determine an appeal from a decision of a CO on 
a claim arising under or relating to a contract made by DOI.



Sec. 1433.209  Suspected fraudulent claims.

    The CO shall refer all matters relating to suspected fraudulent 
claims by a contractor or individual to the OIG for further action or 
investigation.



Sec. 1433.211  Contracting officer's decision.

    The CO's decision shall reference the Civilian Board of Contract 
Appeals, 6th Floor, 1800 M Street, NW., Washington, DC 20036, and its 
rules of procedure at http://www.cbca.gsa.gov.



Sec. 1433.213  Obligation to continue performance.

    If the CO considers financing continued contractor performance to be 
in the best interest of the Government, the CO shall prepare and forward 
a determination to the HCA for approval.



Sec. 1433.214  Alternative dispute resolution (ADR).

    DOI strongly encourages the use of ADR in the resolution of disputes 
in lieu of litigation or adjudication. Efforts shall be made to resolve 
disputes in an expeditious and financially responsible manner.



Sec. 1433.215  Contract clauses.

    The Disputes clause contained in FAR 52.233-1 shall be used with its 
Alternate I in all solicitations and contracts.

[[Page 823]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                          PART 1434 [RESERVED]

             PART 1435_RESEARCH AND DEVELOPMENT CONTRACTING

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.



Sec. 1435.010  Scientific and technical reports.

    If a Research and Development (R&D) contract results involve 
classified or national security information, the CO shall follow the 
agency procedures prescribed in DIAR 1404.403 prior to making the 
results available. Copies of publications and reports are also required 
to be sent to the DOI Departmental Library, 1849 C Street, NW., MS-2258, 
Main Interior Building, Washington, DC 20240.

         PART 1436_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

     Subpart 1436.2_Special Aspects of Contracting for Construction

Sec.

Sec. 1436.209 Construction contracts with architect-engineer firms.

Sec. 1436.270 Preparation of solicitations and contracts for 
          construction.

Sec. 1436.270-1 Uniform contract format.

Sec. 1436.270-2 Part I--The Schedule.

Sec. 1436.270-3 Part II--Contract clauses.

Sec. 1436.270-4 Part III--Documents, exhibits and other attachments.

Sec. 1436.270-5 Part IV--Representations and instructions.

                     Subpart 1436.5_Contract Clauses


Sec. 1436.570 Prohibition against use of lead-based paint.

Sec. 1436.571 Additive and deductive items.

               Subpart 1436.6_Architect-Engineer Services


Sec. 1436.602 Selection of firms for architect-engineer contracts.

Sec. 1436.602-1 Selection criteria.

Sec. 1436.602-2 Evaluation boards.

Sec. 1436.602-3 Evaluation board functions.

Sec. 1436.602-4 Selection authority.

Sec. 1436.602-5 Short selection processes for contracts not to exceed 
          the simplified acquisition threshold.

Sec. 1436.603 Collecting data on and appraising firms' qualifications.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

     Subpart 1436.2_Special Aspects of Contracting for Construction



Sec. 1436.209  Construction contracts with architect-engineer firms.

    Approval to award a contract for construction to a firm or its 
subsidiaries that designed the project shall be made by the HCA only 
after discussion with Director, PAM, and with legal concurrence. The 
request for approval prepared by the CO shall include the reason(s) why 
award to the design firm is required; an analysis of the facts involving 
potential or actual organizational conflicts of interest, including 
benefits and detriments to the Government and the prospective 
contractor; and the measures which are to be taken to avoid, neutralize 
or mitigate conflicts of interest. A copy of the documentation shall be 
forwarded to PAM at the time of consultation.



Sec. 1436.270  Preparation of solicitations and contracts for 
          construction.



Sec. 1436.270-1  Uniform contract format.

    (a) COs shall prepare solicitations and contracts for construction 
using the uniform contract format outlined in Table 1436-1.
    (b) If any section of the uniform contract format does not apply, 
the CO should so mark that section in the solicitation. Upon award, the 
CO shall not physically include Part IV in the resulting contract, but 
shall retain it in the contract file.

[[Page 824]]



                                      Table 1436-1--Uniform Contract Format
----------------------------------------------------------------------------------------------------------------
                               Section                                                   Title
----------------------------------------------------------------------------------------------------------------
                                              Part I--The Schedule
----------------------------------------------------------------------------------------------------------------
A...................................................................  Solicitation/contract form.
B...................................................................  Bid schedule.
C...................................................................  Specifications/Drawings.
D...................................................................  Packaging and marking.
E...................................................................  Inspection and acceptance.
F...................................................................  Deliveries or performance.
G...................................................................  Contract administration data.
H...................................................................  Special contract requirements.
----------------------------------------------------------------------------------------------------------------
                                            Part II--Contract Clauses
----------------------------------------------------------------------------------------------------------------
I...................................................................  Contract clauses.
----------------------------------------------------------------------------------------------------------------
                          Part III--List of Documents, Exhibits, and Other Attachments
----------------------------------------------------------------------------------------------------------------
J...................................................................  List of attachments.
----------------------------------------------------------------------------------------------------------------
                                    Part IV--Representations and Instructions
----------------------------------------------------------------------------------------------------------------
K...................................................................  Representations, certifications, and other
                                                                       statements of offerors.
L...................................................................  Instructions, conditions, and notices to
                                                                       offerors.
M...................................................................  Evaluation factors for award.
----------------------------------------------------------------------------------------------------------------


[75 FR 19829, Apr. 15, 2010, as amended at 76 FR 50142, Aug. 12, 2011]



Sec. 1436.270-2  Part I--The Schedule.

    The CO shall prepare the Schedule as follows:
    (a) Section A, Solicitation/contract form. Use SF 1442, 
Solicitation, Offer, and Award (Construction, Alteration or Repair), as 
prescribed in FAR 36.701(a).
    (b) Section B, Bid schedule. Bid schedule.
    (c) Section C, Specifications/Drawings. Include specifications and 
drawings (See FAR Part 11) or reference other location in the uniform 
contract format (e.g. Section J, attachment ------).
    (d) Section D, Packaging and Marking. Not applicable.
    (e) Section E, Inspection and acceptance. Include inspection, 
acceptance, quality assurance, and reliability requirements (See FAR 
Part 46).
    (f) Section F, Deliveries or performance. Include Suspension of 
Work, Liquidated Damages, Commencement, Prosecution, and Completion of 
Work, Variation in Quantity clauses (See FAR Part 12).
    (g) Section G, Contract administration data. Include Contracting 
Officer's Representative/Technical Representative identification, and 
any required administration information (e.g., accounting and 
appropriation data).
    (h) Section H, Special contract requirements. Include any special 
contract requirements which are not included in other sections of the 
uniform contract format.



Sec. 1436.270-3  Part II--Contract clauses.

    For Section I, Contract clause, include any clauses required by law 
or by the FAR (including subpart 36.5), the DIAR (including subpart 
1436.5), and any additional bureau-wide or local clauses expected to be 
included in any resulting contract which are not included in other 
sections of the uniform contract format.



Sec. 1436.270-4  Part III--Documents, exhibits and other attachments.

    For Section J, List of documents, exhibits, and other attachments, 
include wage determinations (See FAR 22.404), SF-24--Bid Bond (See FAR 
28.101), and other attachments by listing the title, date and number for 
each document.



Sec. 1436.270-5  Part IV--Representations and instructions.

    The CO shall prepare the representations and instructions as 
follows:
    (a) Section K, Representations, certifications, and other statements 
of offerors. Include provisions requiring representations, 
certifications, or submission of other information by an offeror.

[[Page 825]]

    (b) Section L, Instructions, conditions, and notices to offerors. 
Include other provisions or instructions to offerors which are not 
included in other sections of the uniform contract (e.g., FAR 52.214-19 
if using sealed bidding).
    (c) Section M, Evaluation factors for award. Identify all factors 
that will be considered in awarding the contract (See, for example, FAR 
14.201-8 for sealed bidding; FAR 15.304 for competitive proposals).

                     Subpart 1436.5_Contract Clauses



Sec. 1436.570  Prohibition against use of lead-based paint.

    (a) Definitions. As used in this section, ``residential structure:'' 
means any house, apartment, or structure intended for human habitation 
including any institutional structure where persons reside such as an 
orphanage, boarding school dormitory, day care center, or extended care 
facility.
    (b) The CO shall insert the clause at 1452.236-70, Prohibition 
Against Use of Lead-Based Paint, in solicitations and contracts when 
construction of residential structures or rehabilitation (including 
dismantling, demolition, or removal) of residential structures is 
contemplated.



Sec. 1436.571  Additive and deductive items.

    If it appears that funds available for a construction project may be 
insufficient for all the desired features, the CO may provide in the 
solicitation for a base bid item covering the work as specified and for 
one or more additive or deductive bid items which add or omit specified 
features of the work in a stated order of priority. Such solicitations 
shall include a provision substantially as set forth in 1452.236-71, and 
the low bidder and the bid items to be awarded shall be determined as 
provided in the provision.

               Subpart 1436.6_Architect-Engineer Services



Sec. 1436.602  Selection of firms for architect-engineer contracts.



Sec. 1436.602-1  Selection criteria.

    (a) The CO may include specific evaluation criteria to be used in 
the evaluation of potential contractors, in accordance with the 
requirements of FAR 36.602-1.
    (b) HCAs are authorized to approve the use of design competition.



Sec. 1436.602-2  Evaluation boards.

    HCAs shall establish procedures for providing permanent or ad hoc 
architect-engineer evaluation boards. Bureau procedures shall provide 
for the appointment of private practitioners of architecture, 
engineering, or related professions when such action is determined by 
the HCA to be essential to meet the Government's minimum needs.



Sec. 1436.602-3  Evaluation board functions.

    The selection report shall be prepared for HCA approval, in 
accordance with bureau/office procedures.



Sec. 1436.602-4  Selection authority.

    The HCA is authorized to serve as the designated selection 
authority.



Sec. 1436.602-5  Short selection processes for contracts not to exceed 
          the simplified acquisition threshold.

    At each occurrence, CO approval shall be obtained prior to the 
utilization of either of the short selection processes used for 
architect-engineer contracts not expected to exceed the simplified 
acquisition threshold.



Sec. 1436.603  Collecting data on and appraising firms' qualifications.

    HCAs who require architect-engineer services shall use their 
established procedures to collect data on and appraising firms' 
qualifications.

                      PART 1437_SERVICE CONTRACTING

                Subpart 1437.1_Service Contracts_General

Sec.

Sec. 1437.102 Policy.

Sec. 1437.103 Contracting officer responsibility.

Sec. 1437.170 Special service contract requirements.

           Subpart 1437.70_Appraisal Services_(Real Property)


Sec. 1437.7000 Scope of subpart.

[[Page 826]]


Sec. 1437.7001 Contractor qualification requirements.

Sec. 1437.7002 Appraisal standards.

             Subpart 1437.71_Information Collection Services


Sec. 1437.7100 Scope of subpart.

Sec. 1437.7101 General.

Sec. 1437.7102 Clauses.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                Subpart 1437.1_Service Contracts_General



Sec. 1437.102  Policy.

    The HCA is responsible for establishing internal review and approval 
procedures for service contracts in accordance with OFPP Policy Letter 
93-1, Management Oversight of Service Contracting. Special attention 
shall be directed to avoidance of contracting for inherently 
governmental functions, as well as contract administration in the area 
of incurred cost monitoring to complement work progress monitoring.



Sec. 1437.103  Contracting officer responsibility.

    (a) While recognizing that program officials are responsible for 
accurately describing the need to be filled or the problem to be solved 
through the service contract, COs shall:
    (1) Award and administer contracts in a manner that will provide the 
customer with quality services on time and within budget;
    (2) Ensure that requirements are clearly defined and appropriate 
performance standards are included in the contract;
    (3) Utilize the checklist in paragraph (b) of this section, or 
bureau substitute, to ensure compliance with general policies and the 
specific guidance in OFPP Policy Letters 92-1, Inherently Governmental 
Functions, 91-2, Service Contracting, and 89-1, Conflicts of Interest 
Policies Applicable to Consultants;
    (4) Work in close collaboration with the beneficiaries of the 
services being purchased to ensure that contractor performance meets 
contract requirements and performance standards;.
    (b) Following is a checklist to aid analysis and review of 
requirements for service contracts.
    (1) General. (i) Is the statement of work complete, with a clear-cut 
division of responsibility between the contracting parties?
    (ii) Is it stated in terms the market can satisfy?
    (iii) Does the statement of work encompass all commercially 
available services that can meet the actual functional need (eliminates 
any nonessential preferences that may thwart full and open competition)?
    (iv) Is the statement of work performance-based to the maximum 
extent possible (i.e., is the acquisition structured around the purpose 
of the work to be performed, as opposed to either the manner by which 
the work is to be performed or a broad and imprecise statement of work? 
Does the statement of work follow OFPP Pamphlet IV, A Guide to Writing 
and Administering Performance Statements of Work for Service Contracts 
(Supplement 2 to OMB Circular A-76)?, as described in OFPP Pamphlet IV?)
    (2) Inherently governmental functions. If the response to the first 
question below is affirmative, the contract requirement is for an 
inherently Governmental function that Government officials must perform. 
If the response to the second question below is affirmative, the 
contract may be for an inherently governmental function.
    (i) Is the requirement for a function that is listed in Appendix A 
of OFPP Policy Letter 92-1?
    (ii) If the function is not listed in Appendix A, do any of the 
factors in the totality of the circumstances analysis discussed in 
section 7(b) of the Policy Letter 92-1 indicate that the function may be 
inherently governmental?
    (iii) Are Government employees currently performing the task to be 
contracted out? If so, has OMB Circular A-76 been consulted?
    (3) Cost effectiveness. If the response to any of the following 
questions is negative, the agency may not have a valid requirement or 
not be obtaining the requirement in the most cost effective manner.

[[Page 827]]

    (i) Is the statement of work written so that it supports the need 
for a specific service?
    (ii) Is the statement of work written so that it permits adequate 
evaluation of contractor versus in-house cost and performance?
    (iii) Are the choices of contract type, quality assurance plan, 
competition strategy, or other related acquisition strategies and 
procedures in the acquisition plan appropriate to ensure good contractor 
performance to meet the user's needs?
    (iv) If a cost reimbursement contract is contemplated, is the 
acquisition plan adequate to ensure that the contractor will have the 
incentive to control costs under the contract?
    (v) Is the acquisition plan adequate to address the cost 
effectiveness of using contractor support (either long-term or short-
term) versus in-house performance?
    (vi) Is the cost estimate, or other supporting cost information, 
adequate to enable the contracting office to effectively determine 
whether costs are reasonable?
    (vii) Is the statement of work adequate to describe the requirement 
in terms of what is to be performed as opposed to how the work is to be 
accomplished?
    (viii) Is the acquisition plan adequate to ensure that there is 
proper consideration given to quality and best value?
    (4) Control. If the response to any of the following questions is 
negative, there may be a control problem.
    (i) Are there sufficient resources to evaluate contractor 
performance when the statement of work requires the contractor to 
provide advice, analysis and evaluation, opinions, alternatives, or 
recommendations that could significantly influence agency policy 
development or decision-making?
    (ii) Does the quality assurance plan provide for adequate monitoring 
of contractor performance?
    (iii) Is the statement of work written so that it specifies a 
contract deliverable or requires progress reporting on contractor 
performance?
    (iv) Is agency expertise adequate to independently evaluate the 
contractor's approach, methodology, results, options, conclusions or 
recommendations?
    (v) Is the requirement for a function or service absent from the 
list in Appendix B of OFPP Policy Letter 92-1? If it is similar to a 
function or service on that list, greater management scrutiny may be 
required.
    (5) Conflicts of Interest. If the response to any of the following 
questions is affirmative, there may be a conflict of interest.
    (i) Can the potential offeror perform under the contract in such a 
way as to devise solutions or make recommendations that would influence 
the award of future contracts to that contractor?
    (ii) If the requirement is for support services (such as system 
engineering or technical direction), were any of the potential offerors 
involved in developing the system design specifications or in the 
production of the system?
    (iii) Has a potential offeror participated in earlier work involving 
the same program or activity that is the subject of the present contract 
wherein the offeror had access to source selection or propriety 
information not available to other offerors competing for the contract?
    (iv) Will the contractor be evaluating a competitor's work?
    (v) Does the contract allow the contractor to accept its own 
products or activities on behalf of the Government?
    (vi) Will the work under this contract put the contractor in a 
position to influence government decision-making, e.g., developing 
regulations that will affect the contractor's current or future 
business?
    (vii) Will the work under this contract effect the interests of the 
contractor's other clients?
    (viii) Are any of the potential offerors, or their personnel who 
will perform the contract, former agency officials who--while employed 
by the agency--personally and substantially participated in the 
development of the requirement for, or the procurement of, these 
services within the past two years?
    (6) Competition. If the response to any of the following questions 
is negative, completion may be unnecessarily limited.

[[Page 828]]

    (i) Is the statement of work defined so as to avoid overly 
restrictive specifications or performance standards?
    (ii) Is the contract formulated in such a way as to avoid creating a 
continuous and dependent arrangement with the same contractor?
    (iii) Is the use of an indefinite quantity or term contract 
arrangement appropriate to obtain the required services?
    (iv) Will the requirement be obtained through the use of full and 
open competition?



Sec. 1437.170  Special service contract requirements.

    The following types of services shall be acquired as specified in 
the following Departmental regulations:
    (a) Aircraft-related services and maintenance shall be acquired as 
prescribed in 353 DM;
    (b) Audiovisual services, including motion pictures, slide shows and 
videotape recordings, shall be acquired as prescribed in 471 DM 1;
    (c) Information-technology services shall be acquired as prescribed 
in 376 DM 4;
    (d) Guard services for safeguarding classified information shall be 
acquired as prescribed in 442 DM 8;
    (e) Printing services shall be acquired as prescribed in 314 DM 1;
    (f) Contracts which require collection of identical information from 
ten or more members of the public shall be cleared as prescribed in 381 
DM 12.

           Subpart 1437.70_Appraisal Services (Real Property)



Sec. 1437.7000  Scope of subpart.

    This subpart prescribes policies and procedures for acquiring real 
property appraisal services.



Sec. 1437.7001  Contractor qualification requirements.

    (a) Prior to award of a contract for real property appraisal 
services when the services are required in support of court actions, the 
CO shall coordinate with the appropriate Solicitor's office and obtain 
written concurrence from the Assistant U.S. Attorney assigned to 
represent the Government in the matter that the source to be selected 
possesses the necessary qualifications for adequate contract 
performance. This requirement shall be treated as a special standard of 
responsibility (See FAR 9.104-2).
    (b) The CO shall include the requirements of paragraph (a) of this 
section in all solicitations for real property appraisal services which 
may be subject to future court action.



Sec. 1437.7002  Appraisal standards.

    (a) All real property appraisals for condemnation purposes shall be 
consistent with requirements of the Interagency Land Acquisition 
Conference publication ``Uniform Appraisal Standards for Federal Land 
Acquisitions'' published by the Government Printing Office and available 
at http://www.gpoaccess.gov.
    (b) The standards in paragraph (a) of this section shall be made a 
part of all solicitations and resulting contracts for real property 
appraisal services procured for condemnation purposes.

             Subpart 1437.71_Information Collection Services



Sec. 1437.7100  Scope of subpart.

    This subpart prescribes policies and procedures for acquiring 
information collection services which are subject to the requirements of 
the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.)



Sec. 1437.7101  General.

    The Paperwork Reduction Act of 1980 requires that no federal agency 
shall conduct or sponsor the collection of information, upon identical 
items, from ten or more public respondents unless prior approval is 
obtained from OMB.



Sec. 1437.7102  Clauses.

    The CO shall insert the clause at 1452.237-70, Information 
Collection--Department of the Interior, in all solicitations and 
contracts which are subject to the Paperwork Reduction Act of 1980.

                       PARTS 1438	1441 [RESERVED]

[[Page 829]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

          PART 1442_CONTRACT ADMINISTRATION AND AUDIT SERVICES

             Subpart 1442.2_Contract Administration Services

Sec.

Sec. 1442.202 Assignment of contract administration.

       Subpart 1442.6_Corporate Administrative Contracting Officer


Sec. 1442.602 Assignment and location.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

             Subpart 1442.2_Contract Administration Services



Sec. 1442.202  Assignment of contract administration.

    (a) The decision to withhold normal individual contract 
administration functions is delegated to one level above the CO.
    (b) The delegation of authority to issue orders under provisioning 
procedures in existing contracts and under basic ordering agreements for 
items and services identified in the schedule must be approved at one 
level above the CO.

       Subpart 1442.6_Corporate Administrative Contracting Officer



Sec. 1442.602  Assignment and location.

    The BPC has the authority to approve the appointment of a Corporate 
Administrative Contracting Officer.

                    PART 1443_CONTRACT MODIFICATIONS

                      Subpart 1443.2_Change Orders

Sec.

Sec. 1443.205 Contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                      Subpart 1443.2_Change Orders



Sec. 1443.205  Contract clauses.

    BPCs may establish procedures, when appropriate, for authorizing the 
CO to vary the 30-day period for submission of requests for adjustment 
prescribed by FAR 43.205.

                          PART 1444 [RESERVED]

                      PART 1445_GOVERNMENT PROPERTY

  Subpart 1445.3_Authorizing the Use and Rental of Government Property

Sec.

Sec. 1445.302 Contracts with foreign governments or international 
          organizations.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

  Subpart 1445.3_Authorizing the Use and Rental of Government Property



Sec. 1445.302  Contracts with foreign governments or international 
          organizations.

    The HCA, after coordinating with the cognizant PMO, shall establish 
procedures to recover use costs when foreign governments or 
international organizations request use of Government production and 
research property

                       PART 1446_QUALITY ASSURANCE

                         Subpart 1446.1_General

Sec.

Sec. 1446.170 Government-Industry Data Exchange Program (GIDEP).

          Subpart 1446.4_Government Contract Quality Assurance


Sec. 1446.401 General.

                        Subpart 1446.5_Acceptance


Sec. 1446.501 General.

[[Page 830]]

        Subpart 1446.6_Material Inspection and Receiving Reports


Sec. 1446.670 Inspection, receiving and acceptance reports.

Sec. 1446.671 Inspection, receiving and acceptance certification.

                        Subpart 1446.7_Warranties


Sec. 1446.704 Authority for use of warranties.

Sec. 1446.708 Warranties of data.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                         Subpart 1446.1_General



Sec. 1446.170  Government-Industry Data Exchange Program (GIDEP).

    (a) COs shall encourage contractors and subcontractors to 
participate in the GIDEP, a cooperative program managed and funded by 
the U.S. Government to exchange engineering, failure experience, 
metrology, product information, and reliability-maintain ability data on 
products, components (including construction materials), manufacturing 
processes, environmental issues associated with those manufacturing 
processes, recycling and waste prevention.
    (b) The GIDEP is managed for the U.S. Government by the Department 
of the Navy. GIDEP participants are not subject to any fees or 
assessments other than the costs associated with dissemination of 
information by other than electronic means.
    (c) An application to participate in the GIDEP may be obtained at 
http://www.gidep.org. COs shall include information on GIDEP in 
solicitation documents and during discussions at preaward and postaward 
conferences.

          Subpart 1446.4_Government Contract Quality Assurance



Sec. 1446.401  General.

    Inspection of supplies or services shall be documented as prescribed 
in DIAR Subpart 1446.6.

                        Subpart 1446.5_Acceptance



Sec. 1446.501  General.

    Acceptance of supplies or services shall be documented as prescribed 
in DIAR Subpart 1446.6.

        Subpart 1446.6_Material Inspection and Receiving Reports



Sec. 1446.670  Inspection, receiving and acceptance reports.

    (a) Except for simplified acquisitions (See FAR 46.404) and unless 
otherwise prescribed by bureau procedures, the documentation in DIAR 
1446.671 shall be inserted on each commercial shipping document or 
packing list, whether by manual or electronic means, for supplies or 
services and shall be signed by the authorized Government representative 
as required in FAR 46.401(f) and subpart 46.5.
    (b) The documentation required in paragraph (a) of this section 
shall be made at the place or places specified in the contract for 
performance of Government quality assurance (See FAR 46.401(b)) as 
prescribed in FAR 46.402 or FAR 46.403, as appropriate and for 
acceptance in accordance with FAR 46.503.
    (c) If the CO elects to use a contractor's certificate of 
conformance (See FAR 46.315) under the conditions prescribed in FAR 
46.504, the certificate may be used as the basis of Government 
acceptance.



Sec.Sec. 1446.671  Inspection, receiving and acceptance certification.

    As prescribed in DIAR 1446.670, the following documentation shall be 
completed via manual or electronic means for each delivery of supplies 
or services in accordance with Bureau procedures:

           Inspection, Receiving and Acceptance Certification

    The listed items or services have been: -------- inspected, -------- 
received, and -------- accepted and they conform to the contract except 
as noted below or on attached documents.
    ------------ Signature and typed name of authorized Government 
representative.
    Date --------

[[Page 831]]

                        Subpart 1446.7_Warranties



Sec. 1446.704  Authority for use of warranties.

    The CCO is authorized to make the written determination to use a 
warranty in an acquisition.



Sec. 1446.708  Warranties of data.

    Warranties of data shall only be used after consultation with the 
SOL.

                          PART 1447 [RESERVED]

                       PART 1448_VALUE ENGINEERING

                 Subpart 1448.1_Policies and Procedures

Sec.

Sec. 1448.102 Policies.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                 Subpart 1448.1_Policies and Procedures



Sec. 1448.102  Policies.

    The HCA shall establish procedures for processing and evaluating 
VECP's as prescribed in FAR Subpart 48.1 and 369 DM, Value Engineering.

                   PART 1449_TERMINATION OF CONTRACTS

                    Subpart 1449.1_General Principles

Sec.

Sec. 1449.106 Fraud or other criminal conduct.

Sec. 1449.107 Audit of prime contract settlement proposals and 
          subcontract settlements.

Sec. 1449.111 Review of proposed settlements.

                 Subpart 1449.4_Termination for Default


Sec. 1449.402 Termination of fixed-price contracts for default.

Sec. 1449.402-3 Procedure for default.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

                    Subpart 1449.1_General Principles



Sec. 1449.106  Fraud or other criminal conduct.

    When fraud or other criminal conduct is suspected, the CO will 
submit a report documenting the incident to the BPC for transmittal to 
the OIG. Informational copies will be forwarded to the HCA and the 
Director, PAM.



Sec. 1449.107  Audit of prime contract settlement proposals and 
          subcontract settlements.

    Requests for audits pursuant to FAR 49.107 shall be sent to the 
Assistant Inspector General for Auditing, in accordance with the 
procedures in 360 DM 2.3.



Sec. 1449.111  Review of proposed settlements.

    All proposed settlement agreements shall be reviewed by the SOL and 
approved at one level above the CO. Settlement agreements of $250,000 or 
more shall be approved by the BPC.

                 Subpart 1449.4_Termination for Default



Sec. 1449.402  Termination of fixed-price contracts for default.



Sec. 1449.402-3  Procedure for default.

    In addition to the requirements of FAR 49.402-3(g), the notice of 
termination shall contain instructions regarding the disposition of any 
Government property in the possession of the contractor, and, in the 
case of construction contracts, materials, appliances, and structures 
that may be on the construction site. The notice shall also contain a 
statement concerning the liability of the contractor or its surety for 
any liquidated damages (See FAR 49.402-7).

     PART 1450_EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

            Subpart 1450.1_Extraordinary Contractual Actions

Sec.

Sec.Sec. 1450.101 General.

[[Page 832]]


Sec.Sec. 1450.101-2 Policy.

Sec.Sec. 1450.101-3 Records.

Sec.Sec. 1450.102 Delegation of and limitations on exercise of 
          authority.

Sec.Sec. 1450.102-1 Delegation of authority.

Sec.Sec. 1450.103 Contract adjustments.

Sec.Sec. 1450.103-6 Disposition.

Sec.Sec. 1450.104 Residual powers.

Sec.Sec. 1450.104-2 General.

Sec.Sec. 1450.104-3 Special procedures for unusually hazardous or 
          nuclear risks.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

            Subpart 1450.1_Extraordinary Contractual Actions



Sec. 1450.101  General.



Sec. 1450.101-2  Policy.

    Requests for extraordinary contractual actions shall be submitted by 
the HCA to the Director, PAM, for further action.



Sec. 1450.101-3  Records.

    The records of actions taken under FAR Part 50 shall be maintained 
by the Director, PAM.



Sec. 1450.102  Delegation of and limitations on exercise of authority.



Sec. 1450.102-1  Delegation of authority.

    The AS/PMB shall approve all actions under FAR Part 50, except for 
actions in excess of $55,000, actions which increase the contract price 
without consideration, and indemnification actions, which shall be 
approved by the Secretary.



Sec. 1450.103  Contract adjustments.



Sec. 1450.103-6  Disposition.

    The CO shall submit the Memorandum of Decision including the 
contractor's request, contractor information in support of the request 
required by FAR 50.103-4, the results of the CO's investigation required 
by FAR 50.103-5, and the information required by FAR 50.103-6 to the SOL 
for review. If the SOL concurs with the Memorandum of Decision, the 
Memorandum of Decision will be submitted through the HCA to the 
Director, PAM, for further action.



Sec. 1450.104  Residual powers.



Sec. 1450.104-2  General.

    Proposals for the exercise of residual powers shall be processed 
using the procedures referred to in FAR 50.104-2.



Sec. 1450.104-3  Special procedures for unusually hazardous or nuclear 
          risks.

    The CO shall submit the proposed Memorandum of Decision including 
the contractor's request for indemnification and the information 
required from the CO, to the SOL for review and approval. If the SOL 
approves the proposed Memorandum of Decision, it shall be submitted 
through the HCA, to the Director, PAM, for approval or disapproval by 
the Secretary.

           PART 1451_USES OF GOVERNMENT SOURCES BY CONTRACTORS

       Subpart 1451.1_Contractor Use of Government Supply Sources

Sec.

Sec. 1451.102 Authorization to use Government supply sources.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.

       Subpart 1451.1_Contractor Use of Government Supply Sources



Sec. 1451.102  Authorization to use Government supply sources.

    If the CO decides to authorize a contractor to use Government supply 
sources under the conditions prescribed in FAR 51.102, a written request 
for a FEDSTRIP activity address code (See FPMR 101-26.203) shall be made 
through the acquisition office FEDSTRIP point of contact.

         PART 1452_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 1452.000 Scope of part.

[[Page 833]]

              Subpart 1452.2_Text of Provisions and Clauses


Sec. 1452.200 Scope of subpart.

Sec. 1452.201-70 Authorities and delegations.

Sec. 1452.203-70 Restrictions on Endorsements.

Sec. 1452.204-70 Release of Claims.

Sec. 1452.215-70 Examination of Records by the Department of the 
          Interior.

Sec. 1452.215-71 Use and Disclosure of Proposal Information--Department 
          of the Interior.

Sec. 1452.224-1 Privacy Act Notification.

Sec. 1452.226-70 Indian Preference.

Sec. 1452.226-71 Indian Preference Program.

Sec. 1452.227-70 Appeals of Use or Exceptions.

Sec. 1452.228-7 Insurance--Liability to Third Persons.

Sec. 1452.228-70 Liability Insurance.

Sec. 1452.228-71 Aircraft and General Public Liability Insurance.

Sec. 1452.228-72 Liability for Loss or Damage--Department of the 
          Interior.

Sec. 1452.228-73 Liability for Loss or Damage (Property Interest).

Sec. 1452.233-2 Service of Protest.

Sec. 1452.236-70 Prohibition Against Use of Lead-based Paint.

Sec. 1452.236-71 Additive or Deductive Items.

Sec. 1452.237-70 Information Collection.

Sec. 1452.237-71 Utilization of Woody Biomass.

             Subpart 1452.2_Texts of Provisions and Clauses

                                * * * * *


Sec. 1452.280-1 Notice of Indian small business economic enterprise set-
          aside.

Sec. 1452.280-2 Notice of Indian economic enterprise set-aside.

Sec. 1452.280-3 Subcontracting limitations.

Sec. 1452.280-4 Indian economic enterprise representation.

    Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5 U.S.C. 
301.

    Source: 75 FR 19829, Apr. 15, 2010, unless otherwise noted.



Sec. 1452.000  Scope of part.

    This part prescribes Department of the Interior provisions and 
clauses for use in acquisition.

              Subpart 1452.2_Text of Provisions and Clauses



Sec. 1452.200  Scope of subpart.

    This subpart sets forth the texts of all DIAR provisions and 
clauses. Consistent with the numbering scheme prescribed in FAR 52.101 
and the approach used in FAR Subpart 52.2, this subpart is arranged by 
subject matter, in the same order as, and keyed to, the parts of the 
DIAR in which provisions and clause requirements are addressed.



Sec. 1452.201-70  Authorities and delegations.

    As prescribed in section 1401.670-1, insert the following clause:

                 Authorities and Delegations (SEP 2011)

    (a) The Contracting Officer is the only individual authorized to 
enter into or terminate this contract, modify any term or condition of 
this contract, waive any requirement of this contract, or accept 
nonconforming work.
    (b) The Contracting Officer will designate a Contracting Officer's 
Representative (COR) at time of award. The COR will be responsible for 
technical monitoring of the contractor's performance and deliveries. The 
COR will be appointed in writing, and a copy of the appointment will be 
furnished to the Contractor. Changes to this delegation will be made by 
written changes to the existing appointment or by issuance of a new 
appointment.
    (c) The COR is not authorized to perform, formally or informally, 
any of the following actions:
    (1) Promise, award, agree to award, or execute any contract, 
contract modification, or notice of intent that changes or may change 
this contract;
    (2) Waive or agree to modification of the delivery schedule;
    (3) Make any final decision on any contract matter subject to the 
Disputes Clause;
    (4) Terminate, for any reason, the Contractor's right to proceed;
    (5) Obligate in any way, the payment of money by the Government.
    (d) The Contractor shall comply with the written or oral direction 
of the Contracting Officer or authorized representative(s) acting within 
the scope and authority of the appointment memorandum. The Contractor 
need not proceed with direction that it considers to have been issued 
without proper authority. The Contractor shall notify the Contracting 
Officer in writing, with as much detail as possible, when the COR has 
taken an action or has issued direction (written or oral) that the 
Contractor considers to exceed the COR's appointment, within 3 days of 
the occurrence. Unless otherwise provided in this contract, the 
Contractor assumes all costs, risks, liabilities, and consequences of 
performing any work it is directed to perform that falls within any of 
the categories defined in paragraph (c) prior to receipt of the 
Contracting Officer's response issued under paragraph (e) of this 
clause.

[[Page 834]]

    (e) The Contracting Officer shall respond in writing within 30 days 
to any notice made under paragraph (d) of this clause. A failure of the 
parties to agree upon the nature of a direction, or upon the contract 
action to be taken with respect thereto, shall be subject to the 
provisions of the Disputes clause of this contract.
    (f) The Contractor shall provide copies of all correspondence to the 
Contracting Officer and the COR.
    (g) Any action(s) taken by the Contractor, in response to any 
direction given by any person acting on behalf of the Government or any 
Government official other than the Contracting Officer or the COR acting 
within his or her appointment, shall be at the Contractor's risk.

                             (End of clause)

[76 FR 50142, Aug. 12, 2011]



Sec. 1452.203-70  Restrictions on Endorsements.

    As prescribed in 1403.570-3, insert the following clause:

   Restriction on Endorsements--Department of the interior (JUL 1996)

    The Contractor shall not refer to contracts awarded by the 
Department of the Interior in commercial advertising, as defined in FAR 
31.205-1, in a manner which states or implies that the product or 
service provided is approved or endorsed by the Government, or is 
considered by the Government to be superior to other products or 
services. This restriction is intended to avoid the appearance of 
preference by the Government toward any product or service. The 
Contractor may request the Contracting Officer to make a determination 
as to the propriety of promotional material.

                             (End of clause)



Sec. 1452.204-70  Release of Claims.

    As prescribed in 1404.804-70, insert the following clause:

        Release of Claims--Department of the Interior (JUL 1996)

    After completion of work and prior to final payment, the Contractor 
shall furnish the Contracting Officer with a release of claims against 
the United States relating to this contract. The Release of Claims form 
(DI-137) shall be used for this purpose. The form provides for exception 
of specified claims from operation of the release.

                             (End of clause)



Sec. 1452.215-70  Examination of Records by the Department of the 
          Interior.

    As prescribed in 1415.209-70, insert the following clause:

   Examination of Records by the Department of the Interior (APR 1984)

    For purposes of the Examination of Records by the Comptroller 
General clause of this contract (FAR 52.215-1), the Secretary of the 
Interior, the Inspector General, and their duly authorized 
representative(s) from the Department of the Interior shall have the 
same access and examination rights as the Comptroller General of the 
United States.

                             (End of clause)



Sec. 1452.215-71  Use and Disclosure of Proposal Information--Department 
          of the Interior.

    As prescribed in 1415.207-70, insert the following provision:

 Use and Disclosure of Proposal Information--Department of the Interior 
                               (APR 1984)

    (a) Definitions. For the purposes of this provision and the Freedom 
of Information Act (5 U.S.C. 552), the following terms shall have the 
meaning set forth below:
    (1) ``Trade Secret'' means an unpatented, secret, commercially 
valuable plan, appliance, formula, or process, which is used for making, 
preparing, compounding, treating or processing articles or materials 
which are trade commodities.
    (2) ``Confidential commercial or financial information'' means any 
business information (other than trade secrets) which is exempt from the 
mandatory disclosure requirement of the Freedom of Information Act, 5 
U.S.C. 552. Exemptions from mandatory disclosure which may be applicable 
to business information contained in proposals include exemption (4), 
which covers ``commercial and financial information obtained from a 
person and privileged or confidential,'' and exemption (9), which covers 
``geological and geophysical information, including maps, concerning 
wells.''
    (b) If the offeror, or its subcontractor(s), believes that the 
proposal contains trade secrets or confidential commercial or financial 
information exempt from disclosure under the Freedom of Information Act, 
(5 U.S.C. 552), the cover page of each copy of the proposal shall be 
marked with the following legend:

[[Page 835]]

    ``The information specifically identified on pages ------------ of 
this proposal constitutes trade secrets or confidential commercial and 
financial information which the offeror believes to be exempt from 
disclosure under the Freedom of Information Act. The offeror requests 
that this information not be disclosed to the public, except as may be 
required by law. The offeror also requests that this information not be 
used in whole or part by the government for any purpose other than to 
evaluate the proposal, except that if a contract is awarded to the 
offeror as a result of or in connection with the submission of the 
proposal, the Government shall have the right to use the information to 
the extent provided in the contract.''
    (c) The offeror shall also specifically identify trade secret 
information and confidential commercial and financial information on the 
pages of the proposal on which it appears and shall mark each such page 
with the following legend:
    ``This page contains trade secrets or confidential commercial and 
financial information which the offeror believes to be exempt from 
disclosure under the Freedom of Information Act and which is subject to 
the legend contained on the cover page of this proposal.''
    (d) Information in a proposal identified by an offeror as trade 
secret information or confidential commercial and financial information 
shall be used by the Government only for the purpose of evaluating the 
proposal, except that (i) if a contract is awarded to the offeror as a 
result of or in connection with submission of the proposal, the 
Government shall have the right to use the information as provided in 
the contract, and (ii) if the same information is obtained from another 
source without restriction it may be used without restriction.
    (e) If a request under the Freedom of Information Act seeks access 
to information in a proposal identified as trade secret information or 
confidential commercial and financial information, full consideration 
will be given to the offeror's view that the information constitutes 
trade secrets or confidential commercial or financial information. The 
offeror will also be promptly notified of the request and given an 
opportunity to provide additional evidence and argument in support of 
its position, unless administratively unfeasible to do so. If it is 
determined that information claimed by the offeror to be trade secret 
information or confidential commercial or financial information is not 
exempt from disclosure under the Freedom of Information Act, the offeror 
will be notified of this determination prior to disclosure of the 
information.
    (f) The Government assumes no liability for the disclosure or use of 
information contained in a proposal if not marked in accordance with 
paragraphs (b) and (c) of this provision. If a request under the Freedom 
of Information Act is made for information in a proposal not marked in 
accordance with paragraphs (b) and (c) of this provision, the offeror 
concerned shall be promptly notified of the request and given an 
opportunity to provide its position to the Government. However, failure 
of an offeror to mark information contained in a proposal as trade 
secret information or confidential commercial or financial information 
will be treated by the Government as evidence that the information is 
not exempt from disclosure under the Freedom of Information Act, absent 
a showing that the failure to mark was due to unusual or extenuating 
circumstances, such as a showing that the offeror had intended to mark, 
but that markings were omitted from the offeror's proposal due to 
clerical error.

                           (End of provision)



Sec. 1452.224-1  Privacy Act Notification.

    (a) As prescribed in 1424.104, the clause at FAR 52.224-1, Privacy 
Act Notification, shall be modified before insertion into solicitations 
and contracts by--
    (1) Changing the title of the clause to read ``Privacy Act 
Notification (JUL 1996) (Deviation)''; and
    (2) Adding the following sentence to the end of the clause:
    ``Applicable Department of the Interior regulations concerning the 
Privacy Act are set forth in 43 CFR 2, subpart D. The CFR is available 
for public inspection at the Departmental Library, Main Interior Bldg., 
1849 C St. NW, Washington DC, at each of the regional offices of bureaus 
of the Department and at many public libraries.''
    (b) As prescribed in FAR 52.103(a) and 52.107(f), the clause at FAR 
52.252-6, Authorized Deviation in Clauses, shall be inserted into 
solicitations and contracts containing the clause in paragraph (a) of 
this section.



Sec. 1452.226-70  Indian Preference.

    As prescribed in 1426.7003(a), insert the following clause in 
solicitations issued and contracts awarded by the Bureau of Indian 
Affairs except those pursuant to Title I and to Indian Tribes and Indian 
Organizations under Title II of Public Law 93-638 (25 U.S.C. 450 et seq. 
and 25 U.S.C. 455 et seq., respectively); a contracting activity other 
than the Bureau of Indian Affairs

[[Page 836]]

when the contract is entered into pursuant to an act specifically 
authorizing contracts with Indian organizations, and a contracting 
activity other than the Bureau of Indian Affairs when the work to be 
performed is specifically for the benefit of Indians and is in addition 
to any incidental benefits which might otherwise accrue to the general 
public.

        Indian Preference--Department of the Interior (APR 1984)

    (a) The Contractor agrees to give preferences to Indians who can 
perform the work required regardless of age (subject to existing laws 
and regulations), sex, religion, or tribal affiliation for training and 
employment opportunities under this contract and, to the extent feasible 
consistent with the efficient performance of this contract, training and 
employment preferences and opportunities shall be provided to Indians 
regardless of age (subject to existing laws and regulations), sex, 
religion, or tribal affiliation who are not fully qualified to perform 
under this contract. The Contractor also agrees to give preference to 
Indian organizations and Indian-owned economic enterprises in the 
awarding of any subcontracts consistent with the efficient performance 
of this contract. The Contractor shall maintain such records as are 
necessary to indicate compliance with this paragraph.
    (b) In connection with the Indian employment preference requirements 
of this clause, the Contractor shall also provide opportunities for 
training incident to such employment. Such training shall include on-
the-job, classroom, or apprenticeship training which is designed to 
increase the vocational effectiveness of an Indian employee.
    (c) If the Contractor is unable to fill its training and employment 
needs after giving full consideration to Indians as required by this 
clause, those needs may be satisfied by selection of persons other than 
Indians in accordance with the clause of this contract entitled ``Equal 
Opportunity.''
    (d) If no Indian organizations or Indian-owned economic enterprises 
are available for awarding of subcontracts in connection with the work 
performed under this contract, the Contractor agrees to comply with the 
provisions of this contract involving utilization of small business 
concerns, small business concerns owned and controlled by socially and 
economically disadvantaged individuals, or labor surplus area concerns.
    (e) As used in this clause:
    (1) ``Indian'' means a person who is a member of an Indian Tribe. If 
the Contractor has reason to doubt that a person seeking employment 
preference is an Indian, the contractor shall grant the preference but 
shall require the individual within thirty (30) days to provide evidence 
from the Tribe concerned that the person is a member of that Tribe.
    (2) ``Indian organization'' means the governing body of any Indian 
Tribe or entity established or recognized by such governing body in 
accordance with the Indian Financing Act of 1974 (88 Stat. 77; 25 U.S.C. 
1451); and
    (3) ``Indian-owned economic enterprise'' means any Indian-owned 
commercial, industrial, or business activity established or organized 
for the purpose of profit provided that such Indian ownership shall 
constitute not less than 51 percent of the enterprise.
    (4) ``Indian Tribe'' means an Indian Tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 668; 43 U.S.C. 1601) 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    (f) The Contractor agrees to include the provisions of the clause 
including this paragraph (f) in each subcontract awarded under this 
contract.
    (g) In the event of noncompliance with this clause, the Contractor's 
right to proceed may be terminated in whole or in part by the 
Contracting Officer and the work completed in a manner determined by the 
Contracting Officer to be in the best interests of the Government.

                             (End of clause)



Sec. 1452.226-71  Indian Preference Program.

    As prescribed in 1426.7003(b), insert the following clause in all 
solicitations and contracts awarded by the contracting activity that may 
exceed $50,000, contain the clause at 1452.226-70, and where it is 
determined by the Contracting Officer, prior to solicitation, that the 
work under the contract will be performed in whole or in part on or near 
an Indian reservation(s). The clause may also be included in 
solicitations issued and contracts awarded by a contracting activity not 
exceeding $50,000 that contain the clause at 1452.226-70 and which, in 
the opinion of the Contracting Officer, offer substantial opportunities 
for Indian employment, training, and subcontracting.

[[Page 837]]

    Indian Preference Program-- Department of the Interior (APR 1984)

    (a) In addition to the requirements of the clause of this contract 
entitled ``Indian Preference--Department of the Interior,'' the 
Contractor agrees to establish and conduct an Indian preference program 
which will expand the opportunities for Indian organizations and Indian-
owned economic enterprises to receive a preference in the awarding of 
subcontracts and which will expand opportunities for Indians to receive 
preference for training and employment in connection with the work to be 
performed under this contract. In this connection, the Contractor shall 
--
    (1) Designate a liaison officer who will:
    (i) Maintain liaison with the Government and Tribe(s) on Indian 
preference matters;
    (ii) Supervise compliance with the provisions of this clause; and
    (iii) Administer the Contractor's Indian preference program.
    (2) Advise its recruitment sources in writing and include a 
statement in all advertisements for employment that Indian applicants 
will be given preference in employment and training incident to such 
employment.
    (3) Not less than twenty (20) calendar days prior to commencement of 
work under this contract, post a written notice in the Tribal office of 
any reservations on which or near where the work under this contract is 
to be performed, which sets forth the Contractor's employment needs and 
related training opportunities. The notice shall include the approximate 
number and types of employees needed, the approximate dates of 
employment; the experience or special skills required for employment, if 
any; training opportunities available; and all other pertinent 
information necessary to advise prospective employees of any other 
employment requirements. The Contractor shall also request the Tribe(s) 
on or near whose reservation(s) the work is to be performed to provide 
assistance to the Contractor in filling its employment needs and 
training opportunities. The Contracting Officer will advise the 
Contractor of the name, location, and phone number of the Tribal 
officials to contact in regard to the posting of notices and requests 
for Tribal assistance.
    (4) Establish and conduct a subcontracting program which gives 
preference to Indian organizations and Indian-owned economic enterprises 
as subcontractors and suppliers under this contract. Consistent with the 
efficient performance of this contract, the Contractor shall give public 
notice of existing subcontracting opportunities by soliciting bids or 
proposals only from Indian organizations or Indian-owned economic 
enterprises. The Contractor shall request assistance and information on 
Indian firms qualified as suppliers or subcontractors from the Tribe(s) 
on or near whose reservation(s) the work under the contract is to be 
performed. The Contracting Officer will advise the Contractor of the 
name, location, and phone number of the Tribal officials to be contacted 
in regard to the request for assistance and information. Public notices 
and solicitations for existing subcontracting opportunities shall 
provide an equitable opportunity for Indian firms to submit bids or 
proposals by including--
    (i) A clear description of the supplies or services required 
including quantities, specifications, and delivery schedules which 
facilitate the participation of Indian firms;
    (ii) A statement indicating the preference will be given to Indian 
organizations and Indian-owned economic enterprises in accordance with 
Section 7(b) of Public Law 93-638; (88 Stat. 2205; 25 U.S.C. 450e(b));
    (iii) Definitions for the terms ``Indian organization'' and 
``Indian-owned economic enterprise'' as prescribed under the ``Indian 
Preference--Department of the Interior'' clause of this contract;
    (iv) A representation to be completed by the bidder or offeror that 
it is an Indian organization or Indian-owned economic enterprise; and
    (v) A closing date for receipt of bids or proposals which provides 
sufficient time for preparation and submission of a bid or proposal. If 
after soliciting bids from Indian organizations and Indian-owned 
economic enterprises, no responsible bid is received, the Contractor 
shall comply with the requirements of paragraph (d) of the ``Indian 
Preference--Department of the Interior'' clause of this contract. If one 
or more responsible bids are received, award shall be made to the low 
responsible bidder if the bid price is determined to be reasonable. If 
the low responsive bid is determined to be unreasonable as to price, the 
Contractor shall attempt to negotiate a reasonable price and award a 
subcontract. If a reasonable price cannot be agreed upon, the Contractor 
shall comply with the requirements of paragraph (d) of the ``Indian 
Preference--Department of the Interior'' clause of the contract.
    (5) Maintain written records under this contract which indicate:
    (i) The names and addresses of all Indians seeking employment for 
each employment position available under this contract;
    (ii) The number and types of positions filled by Indians and non-
Indians, and the name, address and position of each Indian employed 
under this contract;
    (iii) For those positions where there are both Indian and non-Indian 
applicants, and a non-Indian is selected for employment, the reason(s) 
why the Indian applicant was not selected;

[[Page 838]]

    (iv) Actions taken to give preference to Indian organizations and 
Indian-owned economic enterprises for subcontracting opportunities which 
exist under this contract;
    (v) Reasons why preference was not given to Indian firms as 
subcontractors or suppliers for each requirement where it was determined 
by the Contractor that such preference would not be consistent with the 
efficient performance of the contract, and
    (vi) The names and addresses of all Indian organizations and Indian-
owned economic enterprises contacted, and receiving subcontract awards 
under this contract.
    (6) The Contractor shall submit to the Contracting Officer for 
approval a semiannual report which summarizes the Contractor's Indian 
preference program and indicates the number and types of available 
positions filled and dollar amounts of all subcontracts awarded to 
Indian organizations and Indian-owned economic enterprises and all other 
firms.
    (7) Records maintained pursuant to this clause will be kept 
available for review by the Government until expiration of one (1) year 
after final payment under this contract, or for such longer period as 
may be required by any other clause of this contract or by applicable 
law or regulation.
    (b) For purpose of this clause, the following definitions of terms 
shall apply:
    (1) The terms ``Indian,'' ``Indian Tribe,'' ``Indian Organization, 
and ``Indian-owned economic enterprise'' are defined in the clause of 
this contract entitled ``Indian Preference.''
    (2) ``Indian reservation'' includes Indian reservations, public 
domain Indian allotments, former Indian reservations on Oklahoma, and 
land held by incorporated Native groups, regional corporations, and 
village corporations under the provisions of the Alaska Native Claims 
Settlement Act, (85 Stat. 688; 43 U.S.C. 1601 et seq.).
    (3) ``On or near an Indian Reservation'' means on a reservation or 
reservations or within that area surrounding an Indian reservation(s) 
where a person seeking employment could reasonably be expected to 
commute to and from in the course of a work day.
    (c) Nothing in the requirements of this clause shall be interpreted 
to preclude Indian Tribes from independently developing and enforcing 
their own Indian preference requirements. Such requirements must not 
hinder the Government's right to award contracts and to administer their 
provisions.
    (d) The Contractor agrees to include the provisions of this clause 
including this paragraph (d) in each subcontract awarded under this 
contract and to notify the Contracting Officer of such subcontracts.
    (e) In the event of noncompliance with this clause, the Contractor's 
right to proceed may be terminated in whole or in part by the 
Contracting Officer and the work completed in a manner determined by the 
Contracting Officer to be in the best interest of the Government.

                             (End of clause)



Sec. 1452.227-70  Appeals of Use or Exceptions.

    As prescribed in 1427.303(d)(1), insert the following clause:

                 Appeals of Use of Exceptions (JUL 1996)

    If the Contractor appeals the Contracting Officer determination to 
use one of the exceptions described in FAR 27.303(d)(1), such appeal 
shall be made by written notice specifically identifying the basis for 
the appeal within 30 working days from the receipt of the determination. 
Such appeal shall be mailed to the Associate Solicitor for General Law, 
U.S. Department of the Interior, Washington, DC 20240, who is designated 
as the appeals official.

                             (End of clause)



Sec. 1452.228-7  Insurance--Liability to Third Persons.

    (a) As prescribed in 1428.311-1, the clause at FAR 52.228-7, 
Insurance--Liability to Third Persons, shall be modified before 
insertion into solicitations and contracts by:
    (1) changing the title of the clause to read: ``INSURANCE--Liability 
to Third Persons (APR 1984) (Deviations)''; and
    (2) changing the first sentence in subparagraph (c)(2) of the clause 
to read:
    ``For certain liabilities (and expenses incidental to such 
liabilities) to third persons not compensated by insurance or otherwise 
but subject to the `Limitation of Cost' or `Limitation of Funds' clause 
of this contract.''
    (b) As prescribed in FAR 52.103(a) and 52.107(f), the clause at FAR 
52.252-6, Authorized Deviations in Clauses, shall be inserted into 
solicitations and contracts containing the clause in paragraph (a) of 
this section.

[75 FR 19829, Apr. 15, 2010, as amended at 76 FR 50142, Aug. 12, 2011]



Sec. 1452.228-70  Liability Insurance.

    As prescribed in 1428.301, insert the following clause:

[[Page 839]]

       Liability Insurance--Department of the Interior (JUL 1996)

    (a) The Contractor shall procure and maintain during the term of 
this contract and any extension thereof liability insurance in form 
satisfactory to the Contracting Officer by an insurance company which is 
acceptable to the Contracting Officer. The named insured parties under 
the policy shall be the Contractor and the United States of America. The 
amounts of the insurance shall be not less than as follows:

$------each person*
$------each occurrence*
$------property damage*
    (b) Each policy shall have a certificate evidencing the insurance 
coverage. The insurance company shall provide an endorsement to notify 
the Contracting Officer 30 days prior to the effective date of 
cancellation or termination of the policy or certificate; or 
modification of the policy or certificate which may adversely affect the 
interest of the Government in such insurance. The certificate shall 
identify the contract number, the name and address of the Contracting 
Officer, as well as the insured, the policy number and a brief 
description of contract services to be performed. The contractor shall 
furnish the Contracting Officer with a copy of an acceptable insurance 
certificate prior to beginning the work.

*These amounts to be set by the Contracting Officer.

                             (End of clause)



Sec. 1452.228-71  Aircraft and General Public Liability Insurance.

    As prescribed in 1428.306-70(c)(1), insert the following clause:

   Aircraft and General Public Liability Insurance Department of the 
                           Interior (MAR 1989)

    (a) The Contractor, at the Contractor's expense, agrees to maintain, 
during the continuance of this contract, aircraft liability and general 
public liability insurance with limits of liability for:
    (1) Bodily injury to or death of aircraft passengers of not less 
than $75,000 for any one passenger and a limit for each occurrence in 
any one aircraft of at least an amount equal to the sum produced by 
multiplying $75,000 by 75 percent of the total number of passenger seats 
installed in the aircraft;
    (2) Bodily injury to or death of persons (excluding passengers) of 
not less than $75,000 for any one person in any one occurrence and 
$300,000 for occurrence; and
    (3) Property damage of not less than $100,000 for each occurrence; 
or
    (4) a single limit of liability for each occurrence equal to or 
greater than the combined required minimums set forth in paragraphs 
(a)(1) through (3) of this clause.
    (b) The Contractor also agrees to maintain worker's compensation and 
other legally required insurance with respect to the Contractor's own 
employees and agents.

                             (End of clause)



Sec. 1452.228-72  Liability for Loss or Damage--Department of the 
          Interior.

    As prescribed in 1428.306-70(c)(2), insert the following clause:

   Liability for Loss or Damage--Department of the Interior (APR 1984)

    (a) The Contractor shall indemnify and hold the Government harmless 
from any and all loss or damage to the aircraft furnished under this 
contract except as provided in paragraph (d) of this clause. For the 
purpose of fulfilling its obligation under this clause, the Contractor 
shall procure and maintain during the term of this contract, and any 
extensions thereof, full insurance acceptable to the Contracting 
Officer. The Contractor's insurance coverage shall apply to pilots 
furnished by the Government who operate the aircraft. The contractor may 
request a list of Government pilots by name and qualification who are 
potential pilots.
    (b) Prior to the commencement of work hereunder, the Contractor 
shall furnish to the Contracting Officer a copy of the insurance policy 
or policies or a certificate of insurance issued by the underwriter(s) 
showing that the coverage required by this clause has been obtained.
    (c) Each policy or certificate evidencing the insurance shall 
contain an endorsement which provides that the insurance company will 
notify the Contracting Officer 30 days prior to the effective date of 
any cancellation or termination of any policy or certificate or any 
modification of a policy or certificate which adversely affects the 
interests of the Government in such insurance. The notice shall be sent 
by registered mail and shall identify this contract, the name and 
address of the contracting office, the policy, and the insured.
    (d) If the aircraft is damaged or destroyed while in the custody and 
control of the Government, the Government will reimburse the Contractor 
for the deductible stipulated in the insurance coverage (if any) as 
follows:
    (1) In-Motion Accidents--Up to 5 percent of the current insured 
value of the aircraft stated in the policy, or $10,000, whichever is 
less.
    (2) Not In-Motion Accidents--Up to $250 per accident. Such 
reimbursement shall not be made, however, for loss or damage to the 
aircraft resulting from:

[[Page 840]]

    (i) Normal wear and tear,
    (ii) Negligence or fault in maintenance of the aircraft by the 
Contractor, or
    (iii) A defect in construction of the aircraft or a component 
thereof.
    (e) If damage to the aircraft is established to be the fault of the 
Government, rental payments to the Contractor during the repair period 
will be made as set forth elsewhere in this contract. The Government 
may, at its option, make necessary repairs or return the aircraft to the 
Contractor for repair. In the event the aircraft is lost, destroyed, or 
damaged so extensively as to be beyond repair, no rental payment will be 
made to the Contractor thereafter.
    (f) Any failure to agree as to the responsibility of the Government 
or the Contractor under this clause shall, after a final finding and 
determination by the Contracting Officer, be considered a dispute within 
the meaning of the ``Disputes'' clause of this contract.

                             (End of clause)



Sec. 1452.228-73  Liability for Loss or Damage (Property Interest).

    As prescribed in 1428.311-2(c), insert the following clause:

  Liability for Loss or Damage (Property Interest)--Department of the 
                           Interior (APR 1984)

    (a) The Government assumes all risk and liability for damage to or 
loss of the aircraft for the term of this contract, while the aircraft 
is in the Government's possession, except for;
    (1) Normal wear and tear to the aircraft, or
    (2) Loss which occurs as a result of negligence or fault in 
maintenance of the aircraft by the Contractor, or
    (3) Loss resulting from a latent defect in the construction of the 
aircraft or a component thereof.
    (b) In the event of damage to the aircraft, the Government may, at 
its option, make the necessary repairs with its own facilities, or by 
contract, or pay the Contractor the reasonable cost of repair of the 
aircraft. if damage to the aircraft is established to be the fault of 
the Government, rental payments to the Contractor during the repair 
period will be made as set forth elsewhere in this contract.
    (c) In the event the aircraft is lost, destroyed, or damaged so 
extensively as to be beyond repair, no rental payment will be made to 
the Contractor thereafter, but the Government will pay to the Contractor 
a sum equal to the fair market value of the aircraft just prior to such 
loss, destruction, or extensive damage, less the salvage value of the 
aircraft.
    (d) The Contractor certifies that the contract price does not 
include any cost attributable to insurance or to any reserve fund it has 
established to protect its interests in or use of the aircraft, 
regardless of whether or not the insurance coverage applies for the 
period during which the Government has possession of the aircraft. If, 
in the event of loss or damage to the aircraft, the Contractor receives 
compensation for such loss or damage, in any form, from any source, the 
amount of such compensation shall be credited to the Government in 
determining the amount of the Government's liability under this clause; 
except that this shall not apply to proceeds of insurance received 
solely as an advance of insurance pending determination of Government 
liability, or for an increment of value of the aircraft beyond the value 
for which the Government is responsible.
    (e) In the event of loss or damage, the Government shall be 
subrogated to all rights of recovery by the Contractor against third 
parties for such loss or damage and such rights shall be immediately 
assigned to the Government. Except as the Contracting Officer may permit 
in writing, the Contractor shall neither release nor discharge any third 
party from liability for such loss or damage nor otherwise compromise or 
adversely affect the Government's subrogation or other rights hereunder. 
The Contractor shall cooperate with the Government in any suit or action 
undertaken by the Government against any such third party.
    (f) Any failure to agree as to the responsibility of the Government 
or the Contractor under this clause shall, after a final finding and 
determination by the Contracting Officer, be considered a dispute within 
the meaning of the ``Disputes'' clause of this contract.

                             (End of clause)



Sec. 1452.233-2  Service of Protest.

    As prescribed in 1433.106, the provision at FAR 52.233-2, Service of 
Protest, shall be modified before insertion into solicitations and 
contracts by changing the title of the provision to read: ``Service of 
Protest Department of the Interior (JUL 1996) (Deviation)''; and adding 
the following sentence to the end of the provision:
    ``(c) A copy of the protest served on the Contracting Officer shall 
be simultaneously furnished by the protester to the Department of the 
Interior Assistant Solicitor, Acquisitions and Intellectual Property, 
1849 C Street, NW., Room 6511, Washington, DC 20240.''



Sec. 1452.236-70  Prohibition Against Use of Lead-based Paint.

    As prescribed in 1436.570(b), insert the following clause:

[[Page 841]]

Prohibition Against Use of Lead-Based Paint--Department of the Interior 
                               (JUL 1996)

    Paint containing more than .06 percent by weight of lead in paint, 
or the equivalent measure of lead in the dried film of paint already 
applied, shall not be used in the construction or rehabilitation of 
residential structures under this contract or any resulting 
subcontracts.

                             (End of clause)



Sec. 1452.236-71  Additive or Deductive Items.

    As prescribed in 1436.571, insert the following provision:

   Additive or Deductive Items--Department of the Interior (JUL 1996)

    So that the Government may obtain the most desirable features of 
work within the limit of its funds available at time of bid evaluation, 
award may be made to the bidder having the lowest total of the base bid 
and a combination of additive and deductive items. All bids shall be 
evaluated on the basis of the same additive and deductive bid items 
using the order of priority of the items listed in the schedule.

                           (End of provision)



Sec. 1452.237-70  Information Collection.

    As prescribed in 1437.7102, insert the following clause:

      Information Collection--Department of the Interior (JUL 1996)

    If performance of this contract requires the contractor to collect 
information on identical items from ten or more public respondents, no 
action shall be taken or funds expended in the solicitation or 
collection of such information until the contractor has received from 
the Contracting Officer written notification that approval has been 
obtained from the Office of Management and Budget (OMB) pursuant to the 
Paperwork Reduction Act of 1980. The Contractor agrees to provide all 
information requested by the Contracting Officer which is necessary to 
obtain approval from OMB.

                             (End of clause)



Sec. 1452.237-71  Utilization of Woody Biomass.

    As prescribed inSec. 1437.7202, insert the following clause:

                 Utilization of Woody Biomass (MAY 2005)

    (a) The contractor may remove and utilize woody biomass, if:
    (1) Project work is progressing as scheduled; and
    (2) Removal is completed before contract expiration.
    (b) To execute this option, the contractor must submit a written 
request to the Government.
    (c) Following receipt of the written request, and if appropriate, 
the Government and the contractor will negotiate and execute a separate 
timber/vegetative sales contract. Payment under the timber/vegetative 
sales contract must be at a price equal to or greater than the appraised 
value of the woody biomass. The contractor must make any appropriate 
payment specified in the related timber/vegetative sales contract before 
removal may be authorized.
    (d) If required by law, regulation or Bureau policy, the Government 
will prepare a timber/vegetative sales notice and/or prospectus, 
including volume estimates, appraised value and any appropriate special 
provisions.
    (e) The contractor must treat any woody biomass not removed in 
accordance with the specifications in the service contract.
    (f) The sales contract and service contract are severable; default 
or termination under either contract does not remove the contractor from 
payment or performance obligations under the other contract.
    (g) Definitions:
    Timber/vegetative sales contract and/or notice means the agency-
specific authorized contract instrument for the sale, barter, exchange, 
billing or other compensation for the payment, removal, and/or 
transportation of woody biomass material.
    Woody biomass means the trees and woody plants, including limbs, 
tops, needles, leaves, and other woody parts, grown in a forest, 
woodland, or rangeland environment, that are the by-products of 
management, restoration and/or hazardous fuel reduction treatment.

             Subpart 1452.2_Texts of Provisions and Clauses

    Source: 78 FR 34271, June 7, 2013, unless otherwise noted.



Sec. 1452.280-1  Notice of Indian small business economic enterprise 
          set-aside.

    As prescribed in 1480.503(d)(3), and in lieu of the requirements of 
FAR 19.508, insert the following provision in each written solicitation 
of offers to provide supplies or services when purchasing commercial 
items under FAR Part 12 or using simplified acquisition procedures under 
FAR Part 13. If the solicitation is oral, information substantially 
identical to that contained in

[[Page 842]]

the provision must be given to potential offerors.

Notice of Indian Small Business Economic Enterprise Set-aside (JUL 2013)

    Under the Buy Indian Act, 25 U.S.C. 47, offers are solicited only 
from Indian economic enterprises (Subpart 1480.8) that are also small 
business concerns. Any acquisition resulting from this solicitation will 
be from such a concern. Offers received from enterprises that are not 
both Indian economic enterprises and small business concerns will not be 
considered and will be rejected.

                           (End of provision)



Sec. 1452.280-2  Notice of Indian economic enterprise set-aside.

    As prescribed in 1480.503(d)(4) and 1480.504-1(f)(5), insert the 
following clause in solicitations and contracts involving Indian 
economic enterprise set-asides. If the solicitation is oral, information 
substantially identical to that contained in the provision must be given 
to potential offerors.

        Notice of Indian Economic Enterprise Set-aside (JUL 2013)

    (a) Definitions as used in this clause.
    Indian means a person who is a member of an Indian Tribe or 
``Native'' as defined in the Alaska Native Claims Settlement Act (PL 92-
203; 85 Stat. 688; 43 U.S.C. 1601).
    Indian Economic Enterprise means any business activity owned by one 
or more Indians or Indian Tribes that is established for the purpose of 
profit, provided that:
    (i) The combined Indian or Indian Tribe ownership shall constitute 
not less than 51 percent of the enterprise; (ii) the Indians or Indian 
Tribes shall, together, receive at least a majority of the earnings from 
the contract; and (iii) the management and daily business operations of 
an Indian economic enterprise must be controlled by one or more 
individuals who are members of an Indian Tribe. To ensure actual control 
over the enterprise, the individuals must possess requisite management 
or technical capabilities directly related to the primary industry in 
which the enterprise conducts business. The enterprise must meet these 
requirements throughout the following time periods:
    (1) At the time an offer is made in response to a written 
solicitation;
    (2) At the time of contract award; and,
    (3) During the full term of the contract.
    Indian Tribe means an Indian Tribe, band, nation, or other 
recognized group or community which is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians, including any Alaska Native village, 
regional or village corporation established under the Alaska Native 
Claims Settlement Act (PL 92-203, 85 Stat. 688; 43 U.S.C. 1601).
    Representation means the positive statement by an enterprise of its 
eligibility for preferential consideration and participation for 
acquisitions conducted under the Buy Indian Act, 25 U.S.C. 47, in 
accordance with the procedures in Subpart 1480.8.
    (b) General.
    (1) Under the Buy Indian Act, offers are solicited only from Indian 
economic enterprises.
    (2) BIA will reject all offers received from ineligible enterprises.
    (3) Any award resulting from this solicitation will be made to an 
Indian economic enterprise, as defined in paragraph (a) of this clause.
    (c) Required Submissions. In response to this solicitation, an 
offeror must also provide the following:
    (1) A description of the required percentage of the work/costs to be 
provided by the offeror over the contract term as required by section 
1452.280-3, Subcontracting Limitations clause;
    (2) A description of the source of human resources for the work to 
be performed by the offeror;
    (3) A description of the method(s) of recruiting and training Indian 
employees, indicating the extent of soliciting employment of Indian 
persons, as required by DIAR 1452.226-70, Indian Preference, or DIAR 
1452.226-71, Indian Preference Program, clause(s);
    (4) A description of how subcontractors (if any) will be selected in 
compliance with the ``Indian Preference'' or ``Indian Preference 
Program'' clause(s);
    (5) The names, addresses, and descriptions of work to be performed 
by Indian persons or economic enterprises being considered for 
subcontracts (if any) and the percentage of the total direct project 
work/costs they would be performing;
    (6) Qualifications of the key personnel (if any) that will be 
assigned to the contract; and
    (7) A description of method(s) for compliance with any supplemental 
Tribal employment preference requirements, if contained in this 
solicitation.
    (d) Required Assurance. The offeror must provide written assurance 
to the Indian Affairs that it will comply, or has, complied fully with 
the requirements of this clause. It must do this before Indian Affairs 
awards the Buy Indian contract, and upon successful and timely 
completion of the contract, but before the Indian Affairs Contracting 
Officer (CO) accepts the work or product.
    (e) Non-responsiveness. Failure to provide the information required 
by paragraphs (c)

[[Page 843]]

and (d) of this clause may cause Indian Affairs to find an offer non-
responsive and to reject it.
    (f) Eligibility.
    (1) Participation in the Mentor-Prot[eacute]g[eacute] Program 
established under section 831 of the National Defense Authorization Act 
for Fiscal Year 1991 (25 U.S.C. 47 note) does not render an Indian 
economic enterprise ineligible for contracts awarded under the Buy 
Indian Act.
    (2) If a contractor no longer meets the definition of an Indian 
economic enterprise after award, the contractor must notify the CO in 
writing. The notification must include full disclosure of circumstances 
causing the contractor to lose eligibility status and a description of 
any actions that the contractor will take to regain eligibility. Failure 
to give the CO immediate written notification means that: (i) The 
economic enterprise may be declared ineligible for future contract 
awards under this part; and (ii) Indian Affairs may consider termination 
for default if it is in the best interest of the government.

                             (End of clause)



Sec. 1452.280-3  Subcontracting limitations.

    A contractor shall not subcontract to other than responsible Indian 
economic enterprises more than 50 percent of the subcontracted work when 
the prime contract was awarded under the Buy Indian Act. For this 
purpose, work to be performed does not include the provision of 
materials, supplies, or equipment. As prescribed in 1480.601(b), insert 
the following clause in each written solicitation or contract to provide 
supplies, services, or covered construction:

                  Subcontracting Limitations (JUL 2013)

    (a) Definitions as used in this clause.
    (1) Concern means any business entity organized for profit (even if 
its ownership is in the hands of a nonprofit entity) with a place of 
business located in the United States or its outlying areas and that 
makes a significant contribution to the U.S. economy through payment of 
taxes and/or use of American products, material and/or labor, etc. It 
includes but is not limited to an individual, partnership, corporation, 
joint venture, association, or cooperative. For the purpose of making 
affiliation findings (see 19.101) any business entity, whether organized 
for profit or not, and any foreign business entity, i.e., any entity 
located outside the United States and its outlying areas.
    (2) Subcontract means any agreement (other than one involving an 
employer-employee relationship) entered into by a Government prime 
contractor or subcontractor calling for supplies and/or services 
required for performance of the contract, contract modification, or 
subcontract.
    (3) Subcontractor means a concern to which a contractor subcontracts 
any work under the contract. It includes subcontractors at any tier who 
perform work on the contract.
    (b) Required Percentages of work by the concern. The contractor must 
comply with FAR 52.219-14 Limitations on Subcontracting clause in 
allocating what percentage of work to subcontract. Of the work 
subcontracted, no more than 50 percent may be subcontracted to a concern 
other than a responsible Indian economic enterprise.
    (c) Indian Preference. Regardless of the contract type for services, 
supplies, or covered construction, the contractor agrees to give 
preference to Indian organizations and Indian owned economic enterprises 
in awarding subcontracts under this contract in accordance with DIAR 
1452.226-71, Indian Preference.
    (d) Cooperation. The contractor must:
    (1) Carry out the requirements of this clause to the fullest extent; 
and
    (2) Cooperate in any study or survey that the CO, Indian Affairs, or 
its agents may conduct to verify the contractor's compliance with this 
clause.
    (e) Incorporation in Subcontracts. The contractor must incorporate 
the substance of this clause, including this paragraph (e), in all 
subcontracts for supplies, services, and construction awarded under this 
contract.

                             (End of clause)



Sec. 1452.280-4  Indian economic enterprise representation.

    As prescribed in 1480.801(a), insert the following provision in each 
written solicitation for supplies, services, or covered construction:

          Indian Economic Enterprise Representation (JUL 2013)

    The offeror represents as part of its offer that it [ ] does [ ] 
does not meet the definition of Indian economic enterprise as defined in 
1480.201.

                           [End of provision]

[[Page 845]]

                 SUBCHAPTER H_INDIAN AFFAIRS SUPPLEMENT

             PART 1480_ACQUISITIONS UNDER THE BUY INDIAN ACT

                         Subpart 1480.1 General


Sec. 1480.101 Scope of part.

Sec. 1480.102 Buy Indian Act acquisition regulations.

                       Subpart 1480.2 Definitions


Sec. 1480.201 Definitions.

                      Subpart 1480.3 Applicability


Sec. 1480.301 Scope of part.

Sec. 1480.302 Restrictions on use of the Buy Indian Act.

                          Subpart 1480.4 Policy


Sec. 1480.401 Requirement to give preference to Indian Economic 
          Enterprises.

Sec. 1480.402 Delegations and responsibility.

Sec. 1480.403 Deviations.

                        Subpart 1480.5 Procedures


Sec. 1480.501 General.

Sec. 1480.502 Order of precedence for use of Government supply sources.

Sec. 1480.503 Commercial item and simplified acquisitions.

Sec. 1480.504 Other than full and open competition.

Sec. 1480.504-1 Set-asides for Indian economic enterprises.

Sec. 1480.504-2 Other circumstances for use of other than full and open 
          competition.

Sec. 1480.505 Debarment and suspension.

                  Subpart 1480.6 Contract Requirements


Sec. 1480.601 Subcontracting limitations.

Sec. 1480.602 Performance and payment bonds.

                 Subpart 1480.7 Contract Administration


Sec. 1480.701 Contract administration requirements.

 Subpart 1480.8 Representation by an Indian Economic Enterprise Offeror


Sec. 1480.801 General.

Sec. 1480.802 Representation provision.

Sec. 1480.803 Representation process.

               Subpart 1480.9 Challenges to Representation


Sec. 1480.901 General.

Sec. 1480.902 Receipt of challenge.

Sec. 1480.903 Award in the face of challenge.

Sec. 1480.904 Challenge not timely.

    Authority: 25 U.S.C. 47, as amended (36 Stat. 861), 41 U.S.C. 
253(c)(5), and 5 U.S.C. 301.

    Source: 78 FR 34273, June 7, 2013, unless otherwise noted.

                         Subpart 1480.1 General



Sec. 1480.101  Scope of part.

    This part prescribes policies and procedures for the procurement of 
supplies and services from Indian economic enterprises under the Buy 
Indian Act, 25 U.S.C. 47, and this part.



Sec. 1480.102  Buy Indian Act acquisition regulations.

    (a) This part supplements Federal Acquisition Regulation (FAR) and 
Department of the Interior Acquisition Regulation (DIAR) requirements to 
satisfy the needs of Indian Affairs in implementing the Buy Indian Act.
    (b) This part is under the direct oversight and control of the Chief 
Financial Officer, within the Office of the Assistant Secretary--Indian 
Affairs, Department of the Interior (CFO). The CFO is responsible for 
issuing and implementing this part.
    (c) Acquisitions conducted under this part are subject to all 
applicable requirements of the FAR and DIAR, as well as internal 
policies, procedures or instructions issued by the Indian Affairs. The 
provisions of the FAR take precedence in all instances where there may 
be a conflict or discrepancy.

                       Subpart 1480.2 Definitions



Sec. 1480.201  Definitions.

    The following words and terms are used as defined below unless a 
different definition is prescribed for a particular subpart or portion 
of a subpart.
    Buy Indian Act means section 23 of the Act of June 25, 1910 (25 
U.S.C. 47).
    Buy Indian contract means any contract involving activities covered 
by the Buy Indian Act that is negotiated under the provisions of 41 
U.S.C. 252(c)

[[Page 846]]

and 25 U.S.C. 47 between an Indian economic enterprise and a Contracting 
Officer representing the Department of the Interior.
    Challenge to representation means an accurate, complete and timely 
written objection by an interested party to an offeror's representation 
submitted in response to a solicitation under the Buy Indian Act.
    Chief of the Contracting Office (CCO), unless otherwise specified by 
bureau/office regulation, means the senior GS-1102 within a contracting 
office. If the CCO is also the CO for an action requiring approval by 
the CCO, then approval shall be at a level above the CCO in accordance 
with bureau/office procedures.
    Concern means any business entity organized for profit (even if its 
ownership is in the hands of a nonprofit entity) with a place of 
business located in the United States or its outlying areas and that 
makes a significant contribution to the U.S. economy through payment of 
taxes and/or use of American products, material and/or labor, etc. It 
includes but is not limited to an individual, partnership, corporation, 
joint venture, association, or cooperative. For the purpose of making 
affiliation findings (see FAR 19.101), it includes any business entity, 
whether organized for profit or not, and any foreign business entity, 
i.e., any entity located outside the United States and its outlying 
areas.
    Contracting Officer (CO) means a person with the authority to enter 
into, administer, and/or terminate contracts and make related 
determinations and findings on behalf of the U.S. Government.
    Covered construction means construction for road facilities on 
Indian-owned land; road facilities on an Indian reservation; road 
facilities that are primary access routes proposed by tribal 
governments, including roads between villages, roads to landfills, roads 
to drinking water sources, roads to natural resources identified for 
economic development; roads that provide access to intermodal termini, 
such as airports, harbors, or boat landings; bridges along these roads; 
planning and other needs and facilities associated with roads; and 
sidewalks along these roads.
    Day means a calendar day.
    Deviation means an exception to the requirement for use of the Buy 
Indian Act in fulfilling an acquisition requirement of Indian Affairs.
    Fair market price means a price based on reasonable costs under 
normal competitive conditions and not on lowest possible cost, as 
determined in accordance with FAR 19.202-6(a).
    Governing body means the recognized entity empowered to exercise 
governmental authority over an Indian tribe.
    Indian means a person who is a member of an Indian Tribe or 
``Native'' as defined in the Alaska Native Claims Settlement Act (PL 92-
203; 85 Stat 688; 43 U.S.C. 1601).
    Indian Affairs (IA) means all bureaus and offices under the 
Assistant Secretary--Indian Affairs.
    Indian economic enterprise (IEE) means any business activity owned 
by one or more Indians or Indian Tribes that is established for the 
purpose of profit provided that: the combined Indian or Indian Tribe 
ownership must constitute not less than 51 percent of the enterprise; 
the Indians or Indian Tribes must, together, receive at least a majority 
of the earnings from the contract; and the management and daily business 
operations of an enterprise must be controlled by one or more 
individuals who are Indians. To ensure actual control over the 
enterprise, the individuals must possess requisite management or 
technical capabilities directly related to the primary industry in which 
the enterprise conducts business. The enterprise must meet these 
requirements throughout the following time periods:
    (1) At the time an offer is made in response to a written 
solicitation;
    (2) At the time of contract award; and
    (3) During the full term of the contract.
    Indian land means land over which an Indian Tribe is recognized by 
the United States as having governmental jurisdiction and land owned by 
a Native corporation established under the Alaska Native Claims 
Settlement Act of 1971 (85 Stat. 688, 43 U.S.C. 1601), so long as the 
Native corporation qualifies as an IEE, as defined herein. In the State 
of Oklahoma, or where there has

[[Page 847]]

been a final judicial determination that a reservation has been 
disestablished or diminished, the term means that area of land 
constituting the former reservation of the Tribe as defined by the 
Secretary.
    Indian small business economic enterprise (ISBEE) means an IEE that 
is also a small business concern established in accordance with the 
criteria and size standards of 13 CFR part 121.
    Indian Tribe means an Indian Tribe, band, nation, or other 
recognized group or community that is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians, including any Alaska Native village 
or regional or village corporation under the Alaska Native Claims 
Settlement Act (PL 92-203, 85 Stat. 688; 43 U.S.C. 1601).
    Interested party means an IEE that is an actual or prospective 
offeror whose direct economic interest would be affected by the proposed 
or actual IA award of a particular contract set-aside pursuant the Buy 
Indian Act.
    Product of Indian industry means anything produced by an IEE either 
through physical labor or by intellectual effort involving the use and 
application of its skills.
    Representation means the positive statement by an enterprise of its 
eligibility for preferential consideration and participation for 
acquisitions conducted under the Buy Indian Act, 25 U.S.C. 47, in 
accordance with the procedures in Subpart 1480.8.
    Reservation means Indian reservations, public domain Indian 
allotments, former Indian reservations in Oklahoma, and land held by 
incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act, 43 U.S.C. 1601.
    Subcontract means any agreement (other than one involving an 
employer-employee relationship) entered into by a Government prime 
contractor or subcontractor calling for supplies and/or services 
required for performance of the contract, contract modification, or 
subcontract.
    Subcontractor means a concern to which a contractor subcontracts any 
work under the contract. The term includes subcontractors at any tier 
who perform work on the contract.
    Work means the level of work effort by the prime contractor based on 
total direct project costs.

                      Subpart 1480.3 Applicability



Sec. 1480.301  Scope of part.

    Except as provided in 1480.302 and 1480.401(b), this part applies to 
all acquisitions, including simplified acquisitions, made by IA and by 
any other bureau or office of the Department of the Interior delegated 
the authority to make acquisitions under the Buy Indian Act and 
1480.401(d).



Sec. 1480.302  Restrictions on use of the Buy Indian Act.

    (a) IA must not use the authority of the Buy Indian Act and the 
procedures contained in this part to award intergovernmental contracts 
to tribal organizations to plan, operate or administer authorized IA 
programs (or parts thereof) that are within the scope and intent of the 
Indian Self-Determination and Education Assistance Act. IA must use the 
Buy Indian Act solely to award procurement contracts to IEEs.
    (b) IA must not use the authority of this Act for construction 
contracts, as defined in FAR 36.102, unless the construction is covered 
construction, as defined in 1480.201.

                          Subpart 1480.4 Policy



Sec. 1480.401  Requirement to give preference to Indian economic 
          enterprises.

    (a) IA must use the negotiation authority of the Buy Indian Act, 25 
U.S.C. 47, to give preference to Indians whenever the use of that 
authority is authorized and practicable. The Buy Indian Act provides 
that, ``so far as may be practicable, Indian labor shall be employed, 
and purchases of the products (including, but not limited to printing, 
notwithstanding any other law) of Indian industry may be made in open 
market at the discretion of the Secretary of the Interior.'' Thus, IA 
may use the Buy Indian Act to give preference to IEEs through set-asides 
when acquiring supplies, services, and covered construction to meet IA 
needs

[[Page 848]]

and requirements. IA must contract for covered construction in 
accordance with FAR Part 36.
    (b) IA or any other bureau or office of the Department of the 
Interior delegated the authority to make acquisitions under the Buy 
Indian Act may not use the Buy Indian Act to give preference to IEEs 
through set-asides when acquiring construction that is not covered 
construction.
    (c) The provisions of this section shall not apply to the awarding 
of contracts under the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450b et seq.) by the Department of the 
Interior.



Sec. 1480.402  Delegations and responsibility.

    (a) The Secretary has delegated authority under the Buy Indian Act 
to the Assistant Secretary--Indian Affairs. IA exercises this authority 
in support of its mission and program activities and as a means of 
fostering Indian employment and economic development.
    (b) The Secretary may delegate authority under the Buy Indian Act to 
a bureau or office within the Department of the Interior other than IA 
only in accordance with the Departmental Manual.
    (c) As the head of the contracting activity, the CFO is responsible 
for ensuring that all IA acquisitions under the Buy Indian Act comply 
with the requirements of this part.



Sec. 1480.403  Deviations.

    (a) The following officials may authorize a deviation for an IA 
acquisition:

------------------------------------------------------------------------
For a proposed contract action . .  The following official may authorize
                 .                            a deviation . . .
------------------------------------------------------------------------
Exceeding $25,000 but not           The CCO (or the IA Procurement
 exceeding $550,000.                 Chief, absent a CCO).
Exceeding $550,000 but not          IA Competition Advocate.
 exceeding $11.5 million.
Exceeding $11.5 million but not     The head of the procuring activity,
 exceeding $57 million.              or a designee who is a civilian
                                     serving in a position in a grade
                                     above GS-15 under the General
                                     Schedule or in a comparable or
                                     higher position under another
                                     schedule.
Exceeding $57 million.............  Department of the Interior Senior
                                     Procurement Executive.
------------------------------------------------------------------------

    (b) Deviations may be authorized prior to issuing the solicitation 
when IA makes the following determinations and the appropriate official 
takes the following actions:

------------------------------------------------------------------------
      Acquisition type         Basis for deviation    Necessary actions
------------------------------------------------------------------------
In pursuit of a simplified    IA determines after   The official must:
 or commercial item            a market survey      (1) Document the
 acquisition in accordance     that there is no      reasons for the
 with FAR Parts 12 or 13 and   reasonable            deviation in the
 DIAR 1413.                    expectation of        file;
                               obtaining offers     (2) Ascertain the
                               that will be          availability of
                               competitive in        small business
                               terms of market       suppliers through
                               price, quality, and   market research;
                               delivery from two     and
                               or more responsible  (3) If appropriate,
                               ISBEEs (or at least   compete the
                               from one such         purchase using an
                               enterprise, if the    unrestricted small
                               purchase does not     business set-aside
                               exceed the dollar     as prescribed in
                               threshold described   FAR 19.502-2.
                               in FAR 13.003).
In pursuit of all other       IA determines that    The official must:
 acquisitions.                 there is no          (1) Provide a
                               reasonable            written
                               expectation that      determination in
                               offers will be        the contract file
                               received from two     stating there is no
                               or more responsible   reasonable
                               IEEs at a             expectation of
                               reasonable and fair   receiving offers
                               market price.         from two or more
                                                     responsible IEEs
                                                     and that award
                                                     cannot be made at a
                                                     reasonable and fair
                                                     market price; and
                                                    (2) Proceed with the
                                                     acquisition using
                                                     the order of
                                                     precedence
                                                     established in FAR
                                                     8.001.
------------------------------------------------------------------------

    (c) Deviations may be authorized after issuing solicitations when IA 
makes the following determinations and the appropriate official takes 
the following actions:

[[Page 849]]



------------------------------------------------------------------------
      Acquisition type         Basis for deviation    Necessary actions
------------------------------------------------------------------------
In pursuit of a simplified    Only one offer is     The official must:
 or commercial item            received from a      (1) Document the
 acquisition in accordance     responsible ISBEE     reasons for the
 with FAR Parts 12 or 13 and   and the price is      deviation in the
 DIAR 1413.                    unreasonable or no    file;
                               offers are received  (2) Ascertain the
                               from a responsible    availability of
                               ISBEE.                small business
                                                     suppliers through
                                                     market research;
                                                     and
                                                    (3) If appropriate,
                                                     compete the
                                                     purchase using an
                                                     unrestricted small
                                                     business set-aside
                                                     as prescribed in
                                                     FAR 19.502-2.
In pursuit of all other       The Indian tribe      IA must proceed
 acquisitions.                 justifies a           under PL 93-638.
                               deviation under
                               1480.504-1(b)(2).
                              (1) All otherwise     The official must:
                               acceptable offers    (1) Cancel the
                               received from IEEs    solicitation;
                               are unreasonable;    (2) Reject all
                              (2) Only one offer     offers in writing
                               is received from an   in accordance with
                               IEE and the CO        FAR 14.404-3; and
                               determines the       (3) Complete the
                               price to be           acquisition by
                               unreasonable; or.     either:
                              (3) No responsive     (i) Using
                               offers have been      negotiation,
                               received from IEEs..  provided the CO has
                                                     obtained the
                                                     approval required
                                                     by FAR 14.404-1; or
                                                    (ii) If negotiation
                                                     with the offerors
                                                     responding to the
                                                     canceled
                                                     solicitation is not
                                                     authorized, the CO
                                                     must proceed with a
                                                     new acquisition
                                                     using the order of
                                                     precedence in FAR
                                                     8.001.
------------------------------------------------------------------------

    (d) In response to a set-aside acquisition, when using competitive 
proposals, proposals may be rejected by a written determination by the 
CCO that a reasonable price cannot be negotiated.

                        Subpart 1480.5 Procedures



Sec. 1480.501  General.

    All acquisitions made in accordance with this part, including 
simplified or commercial item acquisitions, must conform to all 
applicable requirements of the FAR and DIAR.



Sec. 1480.502  Order of precedence for use of Government supply sources.

    Acquisitions made under an authorized deviation from the Buy Indian 
Act regulation must be made in conformance with the order of precedence 
required by FAR 8.002.



Sec. 1480.503  Commercial item or simplified acquisitions.

    (a) Each acquisition of supplies, services, and covered construction 
that is subject to commercial item or simplified acquisition procedures 
in accordance with FAR Parts 12 or 13 and DIAR 1413 must be set aside 
exclusively for ISBEEs. IA will use ISBEE commercial item(s) or 
simplified acquisition set-asides to accomplish this preference action.
    (b) If the CO proceeds with an ISBEE commercial item or simplified 
acquisition set-aside and receives an offer at a reasonable price from 
only one such responsible economic enterprise (see FAR 19.502-2), the CO 
must make an award to that enterprise. If the CO proceeds with an ISBEE 
commercial item or simplified acquisition set-aside and receives an 
offer from only one responsible economic enterprise at a price that is 
not reasonable, the CO may negotiate with that enterprise to reach a 
reasonable price.
    (c) Commercial item or simplified acquisitions under this section 
must conform to the competition and price reasonableness documentation 
requirements of FAR 12.209 for commercial item acquisitions and FAR 
13.106 for simplified acquisitions.
    (d) Clauses and Provisions.
    (1) Insert the clause at DIAR 1452.226-70, Indian Preference, in 
accordance with DIAR 1426.7003(a).
    (2) Insert the clause at DIAR 1452.226-71, Indian Preference 
Program, in accordance with DIAR 1426.7003(b).
    (3) Insert the clause at 1452.280-1, NOTICE OF INDIAN SMALL BUSINESS 
ECONOMIC ENTERPRISE SET-ASIDE in accordance with 1480.503(a).
    (4) Insert the clause at 1452.280-2, NOTICE OF INDIAN ECONOMIC 
ENTERPRISE SET-ASIDE, in accordance with 1480.504-1(a).

[[Page 850]]

    (5) Insert the clause at 1452.280-3, SUBCONTRACTING LIMITATIONS, in 
accordance with 1480.601(b).
    (6) Insert the clause at 1452.280-4, INDIAN ECONOMIC ENTERPRISE 
REPRESENTATION, in accordance with 1480.801(a).



Sec. 1480.504  Other than full and open competition.



Sec. 1480.504-1  Set-asides for Indian economic enterprises.

    (a) Each proposed procurement for supplies or services that has an 
anticipated dollar value in excess of the simplified acquisition 
threshold amount in FAR Part 13.003 must be set aside exclusively for 
IEEs, and referred to as an ``Indian Economic Enterprise Set-aside,'' 
when there is a reasonable expectation that offers will be received from 
two or more responsible IEEs, and award will be made at a reasonable 
price except when:
    (1) The acquisition is for construction that is not covered 
construction, as described in 1480.401(b);
    (2) A deviation has been obtained in accordance with 1480.403; or
    (3) Use of other than full and open competition has been justified 
and approved in accordance with 1480.504-2.
    (b) When acquiring services to be performed in whole or in part on 
Indian land under a tribe's jurisdiction, the CO must give written 
notice to the governing body or bodies of the applicable Indian tribe 
simultaneously with publication of the synopsis required by paragraph 
(c)(1) of this section. The notice must state IA's intent to solicit 
services or supplies using an IEE set-aside and provide the tribe with 
the opportunity to contract for the program within 15 calendar days from 
the date of the synopsis publication in the GPE.
    (1) If the tribe does not oppose the set-aside intention or advise 
IA by the established deadline of its intent to contract, IA will 
proceed with the solicitation in accordance with FAR 5.2.
    (2) If the tribe advises IA by the established deadline of its 
intent to contract, it must adequately justify a deviation for work on 
or near Indian land under its jurisdiction through a tribal resolution 
in accordance with Public Law 93-638.
    (c) When using an IEE set-aside in accordance with this section, the 
CO must do the following:
    (1) Synopsize the acquisition in the Governmentwide point of entry 
(GPE) as required by FAR Subpart 5.2, and identify it as an IEE set-
aside.
    (2) Use the Class Justification for Use of Other Than Full and Open 
Competition (JOFOC) in Acquisition of Supplies and Services from Indian 
Industry to meet the requirements of FAR 6.303.
    (3) By separate memorandum to the file, document that the supplies 
or services to be acquired are available from two or more responsible 
and IEEs; the anticipated cost to IA of the required supplies or 
services is determined to be reasonable; and the information in the 
JOFOC in Acquisition of Supplies and Services from Indian Industry is 
accurate and complete as it pertains to the proposed acquisition.
    (4) Reject offers that fail to provide representation that they meet 
the definition of an IEE. The CO may also request the Office of the 
Inspector General (on Form DI-1902 as part of a normal pre-award audit) 
to:
    (i) Assist in determining the eligibility of the low responsive and 
responsible offerors on Buy Indian Act awards; and
    (ii) Determine whether the work will be performed by the labor force 
required under 1480.601.
    (5) When using sealed bidding, determine that the price offered by 
the prospective contractor is considered to be reasonable and at a fair 
market price as required by FAR 14.408-2 before awarding a contract.
    (6) When using competitive proposals, solicit proposals in 
accordance with FAR Subpart 15.2 and select sources in accordance with 
FAR Subpart 15.3 and DIAR Subpart 1415.6.
    (7) When using competitive proposals or when negotiating 
modifications that impact the cost of a contract, conduct proposal 
analyses, including cost or price analyses in accordance with FAR 
Subpart 15.4, negotiate profit or fee in accordance with the procedures 
in FAR Subpart 15.4 and DIAR Subpart 1415.9, and prepare a negotiation 
memorandum in accordance with FAR 15.406-3 and DIAR 1415.808.

[[Page 851]]

    (8) When acquiring architect-engineer services, solicit proposals 
and evaluate potential contractors in accordance with FAR Part 36 and 
DIAR Subpart 1436.6.
    (d) This paragraph applies to solicitations that are not restricted 
to participation of IEEs.
    (1) If an interested IEE is identified after a market survey has 
been performed and a solicitation has been issued, but before the date 
established for receipt of offers, the contracting office must provide a 
copy of the solicitation to this enterprise. In this case, the CO:
    (i) Will not give preference under the Buy Indian Act to the IEE, 
and
    (ii) May extend the date for receipt of offers when practical.
    (2) If more than one IEE comes forward subsequent to the 
solicitation, but prior to the date established for receipt of offers, 
the CO may cancel the solicitation and re-compete it as an IEE set-
aside.
    (e) When only one offer is received from a responsible IEE in 
response to an acquisition set-aside under paragraph (a) of this 
section:
    (1) If the offer is not at a reasonable and fair market price, then 
the CO may negotiate with that enterprise for a reasonable and fair 
market price.
    (2) If the offer is at a reasonable and fair market price, the CO 
must:
    (i) Make an award to that enterprise;
    (ii) Document the reason only one offer was considered; and
    (iii) Initiate action to increase competition in future 
solicitations.
    (f) Provisions and Clauses.
    (1) Insert the clause at DIAR 1452.226-70, Indian Preference, in 
accordance with DIAR 1426.7003(a).
    (2) Insert the clause at DIAR 1452.226-71, Indian Preference 
Program, in accordance with DIAR 1426.7003(b).
    (3) Insert the clause at 1452.280-2, NOTICE OF INDIAN ECONOMIC 
ENTERPRISE SET-ASIDE, in accordance with 1480.504-1(a).
    (4) Insert the clause at 1452.280-3, SUBCONTRACTING LIMITATIONS, in 
accordance with 1480.601(b).
    (5) Insert the clause at 1452.280-4, INDIAN ECONOMIC ENTERPRISE 
REPRESENTATION, in accordance with 1480.801(a).
    (6) When applicable, Tribal employment preference requirements may 
be added to the requirements of the clause in accordance with DIAR 
1426.7005.



Sec. 1480.504-2  Other circumstances for use of other than full and open 
          competition.

    (a) Other circumstances may exist where the use of an IEE set-aside 
in accordance with 1480.401(a) and FAR 6.302-5 is not feasible. In such 
situations, the requirements of FAR Subparts 6.3 and DIAR Subparts 
1406.3 apply in justifying the use of the appropriate authority for 
other than full and open competition.
    (b) Except as provided in FAR 5.202, all proposed acquisition 
actions must first be publicized in accordance with the requirements of 
FAR 5.2 and DIAR 1405.2.
    (c) Justifications for use of other than full and open competition 
in accordance with this section must be approved in accordance with DIAR 
1406. These approvals are required for a proposed contract, or for an 
out of scope modification to an existing contract.



Sec. 1480.505  Debarment and suspension.

    Violation of the regulations in this part by an offeror or an 
awardee may be cause for debarment or suspension in accordance with FAR 
9.406 and 9.407. IA must refer recommendations for debarment or 
suspension to the Director, Office of Acquisition and Property 
Management, Department of the Interior, in accordance with DIAR 1409.406 
and 1409.407 through the IA Division of Acquisitions with the 
concurrence of the head of the contracting activity.

                  Subpart 1480.6_Contract Requirements



Sec. 1480.601  Subcontracting limitations.

    (a) In contracts awarded under the Buy Indian Act and this part, the 
contractor must agree to perform the contract in accordance with FAR 
52.219-14, Limitations on Subcontracting.
    (b) The CO must also insert the clause at 1452.280-3, SUBCONTRACTING 
LIMITATIONS, in all purchase orders and contracts for services, 
supplies, or covered construction and awarded to IEEs pursuant this 
part.

[[Page 852]]



Sec. 1480.602  Performance and payment bonds.

    Solicitations requiring performance and payment bonds must conform 
to FAR Part 28 and authorize use of any of the types of security 
acceptable in accordance with FAR Subpart 28.2 or section 11 of Public 
Law 98-449, the Indian Financing Act Amendments of 1984. The CO may 
accept alternative forms of security in lieu of performance and payment 
bonds according to FAR 28.102 and 25 U.S.C. 47a, if a determination is 
made that such forms of security provide the Government with adequate 
security for performance and payment.

                 Subpart 1480.7_Contract Administration



Sec. 1480.701  Contract administration requirements.

    The CO and the CO's representative (see DIAR 1401.670) must monitor 
performance and progress to ensure contractor compliance with FAR Part 
42 regarding all contract requirements. The CO must ensure contractor 
compliance with the following provisions of this part:
    (a) Qualification as an IEE as defined in 1480.201;
    (b) Maintenance of the subcontracting limitations required by the 
clause at 1452.280-3 when acquiring services, supplies, and covered 
construction; and
    (c) Enforcement of Indian preference requirements contained in DIAR 
1426.7004.

 Subpart 1480.8_Representation by an Indian Economic Enterprise Offeror



Sec. 1480.801  General.

    (a) The CO must insert the provision at 1452.280-4, INDIAN ECONOMIC 
ENTERPRISE REPRESENTATION, in all solicitations regardless of dollar 
value that are set aside for IEEs in accordance this part.
    (b) To be considered for an award under 1480.503 or 1480.504-1, an 
offeror must represent that it meets the definition of ``Indian economic 
enterprise'' in response to a specific solicitation set-aside in 
accordance with the Buy Indian Act and this part.
    (c) The enterprise must meet the definition of ``Indian economic 
enterprise'' throughout the following time periods:
    (1) At the time an offer is made in response to a solicitation;
    (2) At the time of contract award; and
    (3) During the full term of the contract.
    (d) If, after award, a contractor no longer meets the eligibility 
requirements in paragraph (b) of this section, the contractor must 
provide immediate, written notification to the CO. The notification must 
include:
    (1) Full disclosure of circumstances causing the contractor to lose 
eligibility status; and
    (2) A description of actions, if any, that must be taken to regain 
eligibility.
    (e) Failure to provide immediate written notification required by 
paragraph (d) of this section means that:
    (1) The economic enterprise may be declared ineligible for future 
contract awards under this part; and
    (2) IA may consider termination for default if it is determined to 
be in the best interest of the government.
    (f) The CO will accept an offeror's representation in a specific bid 
or proposal that it is an IEE unless another interested party challenges 
the IEE representation or the CO has reason to question the 
representation. Challenges of and questions concerning a specific 
representation must be referred to the CO or CCO in accordance with 
Subpart 1480.9.
    (g) Participation in the Mentor-Prot[eacute]g[eacute] Program 
established under section 831 of the National Defense Authorization Act 
for Fiscal Year 1991 (25 U.S.C. 47 note) does not render an IEE 
ineligible for contracts awarded under the Buy Indian Act.



Sec. 1480.802  Representation provision.

    (a) IA contracting offices must provide copies of the IEE 
representation to any interested parties upon written request.
    (b) The submission of a Solicitation Mailing List Application by an 
enterprise does not remove the requirement

[[Page 853]]

for it to provide representation as an IEE, as required by this part, if 
it wishes to be considered as an offeror for a specific solicitation. 
COs may determine the validity of the contents of the applicant's 
representation.
    (c) Any false or misleading information submitted by an enterprise 
when submitting an offer in consideration for an award set aside under 
the Buy Indian Act is a violation of the law punishable under 18 U.S.C. 
1001. False claims submitted as part of contract performance are subject 
to the penalties enumerated in 31 U.S.C. 3729 to 3731 and 18 U.S.C. 287.



Sec. 1480.803  Representation process.

    (a) Only IEEs may participate in acquisitions set aside in 
accordance with the Buy Indian Act and this part. IA procedure supports 
responsible IEEs and seeks to prevent circumvention or abuse of the Buy 
Indian Act.
    (b) Eligibility is based on information furnished by the enterprise 
to an IA CO in the IEE representation at 1452.280-4 in response to a 
specific solicitation under the Buy Indian Act.
    (c) The CO may ask the appropriate Regional Solicitor to review the 
enterprise's representation.
    (d) The IEE representation does not relieve the CO of the obligation 
for determining contractor responsibility, as required by FAR Subpart 
9.1.

               Subpart 1480.9_Challenges to Representation



Sec. 1480.901  General.

    (a) The CO can accept an offeror's written representation of being 
an IEE (as defined in 1480.201) only when it is submitted with an offer 
in response to a solicitation under the Buy Indian Act. Another 
interested party may challenge the representation of an offeror or 
contractor by filing a written challenge to the applicable CO in 
accordance with the procedures in 1480.902.
    (b) After receipt of offers, the CO may question the representation 
of any offeror in a specific offer by filing a formal objection with the 
CCO.



Sec. 1480.902  Receipt of challenge.

    (a) An interested party must file any challenges against an 
offeror's representation with the local CO.
    (b) The challenge must be in writing and must contain the basis for 
the challenge with accurate, complete, specific, and detailed evidence. 
The evidence must support the allegation that the offeror is either 
ineligible or fails to meet both the definitions of ``Indian'' and of 
``Indian economic enterprise'' established in 1480.201. The CO will 
dismiss any challenge that is deemed frivolous or that does not meet the 
conditions in this section.
    (c) To be considered timely, a challenge must be received by the CO 
no later than 10 days after the basis of challenge is known or should 
have been known, whichever is earlier.
    (1) A challenge may be made orally if it is confirmed in writing 
within the 10-day period after the basis of challenge is known or should 
have been known, whichever is earlier.
    (2) A challenge may be made in writing if it is delivered by hand, 
telefax, telegram, or letter postmarked within the 10-day period after 
the basis of challenge is known or should have been known, whichever is 
earlier.
    (3) A CO's objection is always considered timely, whether filed 
before or after award.
    (d) Upon receiving a timely challenge, the CO must:
    (1) Notify the challenger of the date it was received, and that the 
representation of the enterprise being challenged is under consideration 
by IA; and
    (2) Furnish to the economic enterprise (whose representation is 
being challenged) a request to provide detailed information on its 
eligibility by certified mail, return receipt requested.
    (e) Within 3 days after receiving a copy of the challenge and IA's 
request for detailed information, the challenged offeror must file with 
the CO a complete statement answering the allegations in the challenge, 
and furnish evidence to support its position on representation. If the 
offeror does not submit the required material within the 3 days, or 
another period of time granted

[[Page 854]]

by the CO, IA may assume that the offeror does not intend to dispute the 
challenge and IA must not award to the challenged offeror.
    (f) Within 10 days after receiving a challenge, the challenged 
offeror's response and other pertinent information, the CO must 
determine the representation status of the challenged offeror and notify 
the challenger and the challenged offeror of the decision by certified 
mail, return receipt requested, and make known the option to appeal the 
determination to the Office of Acquisition and Property Management, 
Department of the Interior (PAM).
    (g) If the representation accompanying an offer is challenged and 
subsequently upheld by the PAM, the written notification of this action 
must state the reason(s). The PAM may review the economic enterprise for 
possible suspension or debarment recommendations.



Sec. 1480.903  Award in the face of challenge.

    (a) Award of a contract in the face of challenge may be made on the 
basis of the CO's written determination that the challenged offeror's 
representation is valid.
    (1) This determination is final for IA unless it is appealed to the 
PAM, and the CO is notified of the appeal before award.
    (2) If an award was made before the time the CO received notice of 
appeal, the contract must be presumed to be valid.
    (b) After receiving a challenge involving an offeror being 
considered for award, the CO must not award the contract until the CO 
has determined the validity of the representation, or 10 days have 
expired since the CO received the challenge, whichever occurs first. 
Award must be made when the CO determines in writing that an award must 
be made to protect the public interest, or the supplies and services are 
urgently required, or a prompt award will otherwise be advantageous to 
the Government.
    (c) If a timely challenge on representation is filed with the CO and 
received before award in response to a specific offer and solicitation, 
the CO must notify eligible offerors within one day that the award will 
be withheld and a time extension for acceptance is requested.
    (d) If a challenge on representation is filed with the CO and 
received after award in response to a specific offer and solicitation, 
the CO need not suspend contract performance or terminate the awarded 
contract unless the CO believes that an award may be invalidated and a 
delay would prejudice the Government's interest. However, if contract 
performance is to be suspended, a mutual no cost agreement will be 
sought.



Sec. 1480.904  Challenge not timely.

    If a CO receives an untimely filed challenge of a representation, 
the CO must notify the challenger that the challenge cannot be 
considered on the instant acquisition but will be considered in any 
future actions. However, the CO may question at any time, before or 
after award, the representation of an IEE.

[[Page 855]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 857]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2013)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)

[[Page 858]]

       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)

[[Page 859]]

    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
    LXXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 9200--9299)

[[Page 860]]

   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (9600--9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
     XCVII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)

[[Page 861]]

       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)

[[Page 862]]

        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

[[Page 863]]

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

[[Page 864]]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

[[Page 865]]

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)

[[Page 866]]

        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)

[[Page 867]]

        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)

[[Page 868]]

      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)

[[Page 869]]

         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (700--799)[Reserved]
            Subtitle C--Regulations Relating to Education
        XI  National Institute for Literacy (Parts 1100--1199)
       XII  National Council on Disability (Parts 1200--1299)

[[Page 870]]

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)

[[Page 871]]

       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--599)

[[Page 872]]

         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)

[[Page 873]]

       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Health and Human Services (Parts 300--399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)

[[Page 874]]

        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)[Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)

[[Page 875]]

         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--
                1499)[Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 877]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2013)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     22, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII

[[Page 878]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I

[[Page 879]]

Defense Contract Audit Agency                     32, I
Defense Department                                2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99

[[Page 880]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV

[[Page 881]]

Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I; 8, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V

[[Page 882]]

Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department                               2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Bureau of Ocean Energy Management, Regulation,  30, II
       and Enforcement
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
Iraq Reconstruction, Special Inspector General    5, LXXXVII
     for
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V

[[Page 883]]

  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Office of Workers' Compensation Programs        20, VII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III

[[Page 884]]

National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Private and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L

[[Page 885]]

Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
   and Water Commission, United States Section
[[Page 886]]

U.S. Copyright Office                             37, II
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 887]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2008 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  2008

48 CFR
                                                                   73 FR
                                                                    Page
Chapter 8
801--873 (Ch. 8) Revised............................................2717
Chapter 9
911 Authority citation revised.....................................10985
911.600 Amended....................................................10985
911.602 (d) removed................................................10985
911.604 (d) and (e) removed........................................10985
952 Authority citation revised.....................................10985
952.211-70 Revised.................................................10985
952.211-71 Revised.................................................10985

                                  2009

48 CFR
                                                                   74 FR
                                                                    Page
Chapter 8
802 Authority citation revised.....................................64629
    Technical correction...........................................66257
802.101 Amended....................................................64629
804 Authority citation revised.....................................64630
    Technical correction...........................................66257
804.1102 Added.....................................................64630
808 Authority citation revised.....................................64630
    Technical correction...........................................66257
808.405-2 Added....................................................64630
808.603 (Subpart 808.6) Added......................................64630
809 Authority citation revised.....................................64630
    Technical correction...........................................66257
809.406-2 Added....................................................64630
810 Added..........................................................64630
    Technical correction...........................................66257
813 Authority citation revised.....................................64630
    Technical correction...........................................66257
813.106 Revised....................................................64630
813.202 (Subpart 813.2) Added......................................64630
815 Authority citation revised.....................................64631
    Technical correction...........................................66257
815.304 Added......................................................64631
815.304-70 Added...................................................64631
815.304-71 Added...................................................64631
817 Authority citation added.......................................64631
    Technical correction...........................................66257
817.502 (Subpart 817.5) Added......................................64631
819 Authority citation revised.....................................64631
    Technical correction...........................................66257
819.201 Revised....................................................64631
819.307 (Subpart 819.3) Added......................................64631
819.704--819.709 (Subpart 819.7) Added.............................64632
819.7001--819.7009 (Subpart 819.70) Revised........................64632
819.7101--819.7115 (Subpart 819.71) Added..........................64633
828 Authority citation revised.....................................64636
    Technical correction...........................................66257
828.106-71 Added...................................................64636
828.106-72 Added...................................................64636
852 Authority citation revised.....................................64636
    Technical correction...........................................66257
852.215-70 Added...................................................64636
852.215-71 Added...................................................64636
852.219-9 Added....................................................64636
852.219-10 Added...................................................64637
852.219-11 Added...................................................64637
852.219-71 Added...................................................64638
852.219-72 Added...................................................64638
852.228-72 Added...................................................64638

[[Page 888]]

Chapter 9
901 Authority citation revised.....................................36360
901.102 Amended....................................................36378
901.602-3 Heading revised..........................................36360
903 Authority citation revised.....................................36360
903.104-1 Redesignated from 903.104-3; introductory text amended 
                                                                   36361
903.104-3 Redesignated as 903.104-1................................36361
903.104-7 Redesignated from 903.104-10; heading revised; amended 
                                                                   36361
903.104-10 Redesignated as 903.104-7...............................36361
903.203 Amended....................................................36378
903.405 Redesignated from 903.408-1; heading revised...............36361
903.408-1 Redesignated as 903.405..................................36361
903.502 (b) designation removed....................................36361
903.603 (a) amended................................................36378
903.901--903.971 (Subpart 903.9) Heading revised...................36361
903.900 Redesignated from 903.901; heading revised.................36361
903.901 Redesignated as 903.900; new 903.901 redesignated from 
        903.902....................................................36361
903.902 Redesignated as 903.901; new 903.902 redesignated from 
        903.903....................................................36361
903.903 Redesignated as 903.902....................................36361
904 Authority citation revised.....................................36360
904.401 Amended....................................................23124
904.402 (a), (c)(1), (2), (3) introductory text and (i) amended....36361
904.404 (d)(1) amended.............................................23124
    Heading and (d)(6) revised; (d)(3) amended.....................36361
904.702 Revised....................................................36361
904.803--904.805 (Subpart 904.8) Heading revised...................36361
904.803 Amended....................................................36361
904.804 Added......................................................36361
904.804-1 Heading revised; (a) amended.............................36361
904.805 Revised....................................................36361
904.7000 Heading revised...........................................36361
904.7002 Amended...................................................36361
904.7003 (c), (d) introductory text, (1) and (2) amended...........36362
904.7101 Amended...................................................36362
904.7102 (a) introductory text, (b) introductory text and (e) 
        amended....................................................36362
904.7103 (a) and (b) amended.......................................36362
904.7201 Amended...................................................36362
905--912 (Subchapter B) Heading revised............................36362
905 Authority citation revised.....................................36360
906 Authority citation revised.....................................36360
906.202 (b)(1) amended.............................................36378
906.304 (c)(3) amended.............................................36378
908 Authority citation revised.....................................36360
908.802 Heading revised; (b) amended...............................36362
908.1104 Heading revised...........................................36362
908.7105 Amended...................................................36362
908.7106 (a) and (b) amended.......................................36362
908.7108 Removed...................................................36362
908.7111 (c) amended...............................................36362
908.7113 Revised...................................................36362
908.7115 (a) revised...............................................36362
909 Authority citation revised.....................................36360
909.104 Added......................................................36360
909.104-1 (h) amended..............................................36362
909.104-3 Heading revised; (e) amended.............................36362
909.400 (a) amended................................................36362
909.403 Amended....................................................36362
909.405 Correctly reinstated; CFR correction.......................48421
909.406-2 Heading removed; (c) introductory text, (1) and (d)(1) 
        amended....................................................36362
909.406-3 Heading revised..........................................36362
909.406-6 Redesignated as 909.406-70...............................36362
909.406-70 Redesignated from 909.406-6; (b) amended................36362
909.407 Added......................................................36362
909.407-2 Heading revised; (d) introductory text, (1) and (2) 
        amended....................................................36363
909.407-3 Heading revised; (b)(1), (2), (3) and (e)(1)(iv) amended
                                                                   36363
909.503 Revised....................................................36363
909.504 Heading revised; (e) amended...............................36363
909.507-1 Heading revised; (e) amended.............................36363
909.507-2 (a)(1), (2) and (b) amended..............................36363
911 Authority citation revised.....................................36360
911.604 (b) amended................................................36363
912 Authority citation revised.....................................36360
912.302 Revised....................................................36363
913 Authority citation revised.....................................36360
913.307 Heading revised............................................36363
914 Authority citation revised.....................................36360

[[Page 889]]

914.404 Added......................................................36363
914.404-1 (c) amended..............................................36363
914.407-3 (e) amended..............................................36363
914.407-4 Amended..................................................36363
914.408-2 Redesignated as 914.409-2................................36363
914.409-2 Redesignated from 914.408-2..............................36363
915 Authority citation revised.....................................36360
915.200 Revised....................................................36363
915.207 Added......................................................36363
915.207-70 Heading revised; (f)(3) amended.........................36363
915.305 Heading revised............................................36363
915.404 Added......................................................36363
915.404-2 Heading revised; (c)(1) amended; (c)(2) and (e)(6) 
        redesignated as (c)(2)(1) and (ii).........................36363
915.404-2-70 (a) amended...........................................36363
915.404-4 Heading revised..........................................36363
915.404-4-70-2 Redesignated from 915.404-70-2; (a) and (b) amended
                                                                   36363
915.404-4-70-4 (b) introductory text and (d) amended...............36363
915.404-4-70-5 (d) amended.........................................36363
915.404-4-70-6 Amended.............................................36363
915.404-4-70-7 (a) and (b) amended.................................36364
915.404-4-71-1 (a)(1), (2) and (b) amended.........................36364
915.404-4-71-2 Amended.............................................36378
915.404-4-71-3 (a), (b) introductory text, (1) introductory text, 
        (i), (ii), (iii) and (d) amended...........................36364
    (d) amended....................................................36378
915.404-4-71-4 (a) amended.........................................36364
915.404-4-71-5 (a), (e)(1) and (3) amended.........................36364
915.404-4-71-6 (b)(4), (6) and (c) amended.........................36364
915.404-4-72 (a) introductory text, (1) and (b) amended............36364
    (a) introductory text and (b) amended..........................36378
915.404-70-2 Redesignated as 915.404-4-70-2........................36363
915.408 Added......................................................36364
915.408-70 Heading revised; text amended...........................36364
915.602 (b) removed................................................36364
915.603 Heading revised; (e) redesignated as (f)...................36364
915.605 Heading revised; (b)(5) amended............................36364
915.606 Heading revised; (b) amended...............................36364
915.607 Revised....................................................36364
916 Authority citation revised.....................................36360
916.307 (j) redesignated as (g) and amended........................36364
916.404-2 Redesignated as 916.405-2................................36364
916.405 Added......................................................36364
916.405-2 Redesignated from 916.404-2..............................36364
916.504 Heading revised............................................36364
916.505 Revised....................................................36364
916.601 Removed....................................................36364
917 Authority citation revised.....................................36360
917.600 (a) revised; (b) amended...................................36364
917.7200 (a) amended...............................................36365
922 Authority citation revised.....................................36360
922.103-4 (d) introductory text, (1) introductory text, (i) and 
        (A) amended................................................36365
922.103-5 Amended..................................................36365
922.802 Removed....................................................36365
923 Authority citation revised.....................................36360
    Heading revised................................................36365
923.405 Heading revised............................................36365
923.570--923.570-3 (Subpart 923.5) Heading revised.................36365
923.570-1 (a) introductory text, (1) and (2) amended...............36365
923.570-2 (a) and (b)(M)...........................................36365
923.570-3 (a), (b) introductory text and (2) amended...............36365
923.7001--923.7003 (Subpart 923.70) Heading revised................36365
923.7001 (a) designation removed...................................36365
923.7002 Heading revised; (a)(1) and (5) amended...................36365
923.7003 Revised...................................................36365
925 Authority citation revised.....................................36360
925.102 Redesignated as 925.103....................................36366
925.103 Redesignated from 925.102 and revised......................36366
925.105 Removed....................................................36366
925.108 Removed....................................................36366
925.204 Removed....................................................36366
925.701-70 Redesignated from 925.702 and revised...................36366
925.702 (Subpart 925.7) Heading revised............................36366
925.702 Redesignated as 925.701-70.................................36366
925.7003 (a) introductory text, (1) and (b) introductory text 
        amended....................................................36366

[[Page 890]]

928 Authority citation revised.....................................36360
928.101-1--928.103-70 (Subpart 928.1) Heading revised..............36366
928.101 Added......................................................36366
928.103 Added......................................................36366
928.301 Amended....................................................36366
928.370 (b) introductory text amended..............................36366
931 Authority citation revised.....................................36360
931.205 Added......................................................36366
931.205-19 Heading revised; (h) redesignated as (f); amended.......36366
931.205-32 Heading, (a), (b) introductory text, (1), (2) and (4) 
        amended....................................................36366
    (b)(1) amended.................................................36378
931.205-33 Heading revised.........................................36366
931.205-47 Heading revised; (h)(2) introductory text amended.......36366
932 Authority citation revised.....................................36360
932.006 Added......................................................36366
932.102 (Subpart 932.1) Heading revised............................36366
    Heading revised................................................36367
932.304 Added......................................................36367
932.501 Added......................................................36367
932.605 (b) amended................................................36367
932.7003 (e) introductory text amended.............................36367
932.7004-3 Introductory text amended...............................36367
933 Authority citation revised.....................................36360
933.102 Heading revised; (b) amended...............................36367
933.103 Revised....................................................36367
    (f), (i)(1) introductory text and (k) amended..................36378
933.104 Heading revised; (b) and (c) amended.......................36367
    (b), (c) and (g)(1) amended....................................36378
933.106 (a), (b) and (c) amended...................................36367
935 Authority citation revised.....................................36360
935.010 (c) amended................................................36367
936 Authority citation revised.....................................36360
936.202 (d) and (e) amended........................................36367
936.602-70 Introductory text, (a) introductory text, (7) and 
        (b)(1) introductory text amended...........................36367
936.702 (Subpart 936.7) Removed....................................36367
939 Authority citation revised.....................................36360
939.7001 Removed...................................................36367
939.7002 (b), (c) introductory text and (1) amended................36367
941 Authority citation revised.....................................36360
941.201-71 Amended.................................................36367
942 Authority citation revised.....................................36360
    Heading revised................................................36367
942.270-2 Revised..................................................36367
942.705 Added......................................................36368
942.705-1 Heading revised; (a)(3) amended..........................36368
942.705-3 Heading revised; (a)(2) amended..........................36368
942.705-4 Amended..................................................36368
942.905-5 Amended..................................................36368
947 Authority citation revised.....................................36360
947.506 (Subpart 947.5) Removed....................................36368
947.7001 Amended...................................................36368
947.7002 Amended...................................................36368
949.111 (c) amended................................................36378
950 Authority citation revised.....................................36360
    Heading revised................................................36368
950.7000 Amended...................................................36368
950.7002 Amended...................................................36368
951 Authority citation revised.....................................36360
951.101 Amended....................................................36368
951.102 (c)(1) amended.............................................36368
951.103 (b) amended................................................36378
952 Authority citation revised.....................................36360
952.000 Amended....................................................36368
952.203-70 Introductory text amended...............................36368
    Clause amended.................................................36378
952.204-2 Revised..................................................23124
    Clause amended..........................................36368, 36370
    Introductory text amended......................................36370
952.204-70 Introductory text and clause amended....................36370
    Clause amended.................................................36378
952.204-71 Introductory text and clause amended....................36370
    Clause amended..........................................36378, 36380
952.204-72 Introductory text amended...............................36368
    Introductory text and clause amended...........................36370
    Clause amended.................................................36378
952.204-73 Introductory text and clause amended.............36368, 36370
    Clause amended.................................................36378
952.204-75 Introductory text amended........................36368, 36370
952.204-76 Introductory text and clause amended....................36368
    Introductory text amended......................................36370
    Clause amended..........................................36378, 36380
952.204-77 Clause amended...................................36368, 36378
952.208-7 Introductory text and clause amended.....................36370
    Clause amended.................................................36378

[[Page 891]]

952.208-70 Introductory text and clause amended....................36370
    Clause amended..........................................36378, 36380
952.209-8 Introductory text amended................................36368
952.209-72 Clause and Alternate I amended............36368, 36379, 36380
952.211-70 Introductory text and clause amended....................36369
    Introductory text amended......................................36370
952.211-71 Introductory text amended........................36369, 36370
952.215-70 Introductory text and clause amended....................36369
952.216-7 Revised..................................................36369
952.216-15 Clause amended..........................................36369
952.217-70 Introductory text and clause amended....................36370
    Clause amended..........................................36379, 36380
952.223 Revised....................................................36369
952.223-71 Introductory text amended...............................36369
952.223-72 Introductory text amended........................36369, 36370
    Clause amended..........................................36370, 36380
    Introductory text and clause amended...........................36379
952.223-75 Introductory text amended........................36369, 36370
    Clause amended.................................................36370
    Introductory text and clause amended...........................36379
952.223-76 Clause amended............................36369, 36379, 36380
    Introductory text amended......................................36370
952.223-77 Clause amended............................36369, 36379, 36380
    Introductory text amended......................................36370
952.224-70 Removed.................................................36369
952.225-70 Clause amended..........................................36369
    Introductory text and clause amended...........................36370
952.231-70 Clause amended..........................................36370
952.231-71 Clause amended............................36369, 36379, 36380
952.233-2 Introductory text and clause amended.....................36370
952.233-4 Clause amended....................................36370, 36380
952.233-5 Introductory text and clause amended.....................36370
    Clause amended.................................................36380
952.235-70 Removed.................................................36370
    Clause amended.................................................36380
952.235-71 Introductory text and clause amended....................36370
    Clause amended..........................................36379, 36380
952.236-71 Introductory text and clause amended....................36370
952.236-72 Introductory text amended...............................36370
952.237-69 Clause amended..........................................36370
952.237-70 Clause amended..........................................36379
952.242-70 Introductory text and clause amended....................36370
    Clause amended..........................................36379, 36380
952.247-70 Introductory text and clause amended....................36370
952.250-70 Introductory text and clause amended....................36370
    Clause amended.................................................36379
952.251-70 Introductory text and clause amended....................36370
    Clause amended..........................................36379, 36380
970 Authority citation revised.....................................36360
970.0100 Amended...................................................36370
970.0309-1 Amended.................................................36370
970.0370-1 (a), (b) and (d) amended; (b) introductory text, (8) 
        and (9) amended; (b)(10) removed...........................36370
970.0371-9 Amended.................................................36370
970.0404-1 Amended.................................................36370
970.0404-2 (a) and (c) amended.....................................36370
    (c) amended....................................................36378
970.0404-3 (b) amended.............................................36371
970.0404-4 (b) amended.............................................36371
970.0407-1-2 Amended...............................................36371
970.0407-1-3 Amended...............................................36371
970.0470-1 (b) amended.............................................23126
    (d) amended....................................................36371
970.0470-2 Amended.................................................36371
970.0801-1 Redesignated as 970.0801-2..............................36371
970.0801-2 Redesignated from 970.0801-1 and revised................36371
970.0808 Revised...................................................36371
970.0808-1 Redesignated as 970.0808-00.............................36371
970.0808-00 Redesignated from 970.0808-1; heading revised..........36371
970.0905--970.0970-2 (Subpart 970.09) Heading revised..............36371
970.0905 Heading revised; amended..................................36371
970.0970-1 (b) amended.............................................36371
970.0970-2 Amended.................................................36371
970.1100-1 (a) revised.............................................36371
970.1170-1 Amended.................................................36371
970.1170-2 Amended..........................................36371, 36378
970.1504-1-1 Amended...............................................36378
970.1504-1-2 (e)(2) introductory text, (f) and (h) amended.........36371

[[Page 892]]

    (c), (d), (f), (g) and (i)(1) amended..........................36378
970.1504-1-3 (b)(1), (2), (c)(1), (2) and (3) amended..............36371
    (b)(1), (c)(3) and (4) amended.................................36378
970.1504-1-4 (a), (b), (c)(3), (e) and (f) amended.................36371
    (b), (c)(2) and (3) amended....................................36378
970.1504-1-5 (b), introductory text and (3) introductory text 
        amended....................................................36371
970.1504-1-6 (b) introductory text amended.........................36371
970.1504-1-7 (b) introductory text, (4), (d) and (e) amended.......36371
    (e) amended....................................................36378
970.1504-1-8 (a) and (c) amended...................................36371
970.1504-1-9 (e)(1) introductory text, (2) introductory text and 
        (3) introductory text amended..............................36371
    (e)(1)(v), (2)(vii), (3)(vi), (f) and (i) amended..............36378
970.1504-1-10 Amended.......................................36372, 36378
970.1504-1-11 Amended..............................................36372
970.1504-2 (a)(4) and (c) amended..................................36372
970.1504-5 (a) introductory text, (b)(1), (2), (c) and (d) amended
                                                                   36372
    (a) introductory text, (b)(1), (c) and (d) amended.............36378
970.1706-1 (b) and (c) amended.....................................36378
970.1707-2 Introductory text and (d) amended.......................36372
970.1707-3 (b) introductory text, (3), (c) introductory text and 
        (1) amended................................................36372
970.2200 Amended...................................................36372
970.2201-1-1 Amended...............................................23126
970.2201-1-2 (a)(1)(i), (ii) and (iii) revised; (a)(1)(iv), (v) 
        and (vi) added.............................................23126
970.2201-2-2 Amended...............................................36372
970.2204-1-1 (a) introductory text, (2), (c)(1) introductory text, 
        (i), (ii), (iii), (2)(i), (4), (5) and (d) amended.........36372
970.2210 Amended...................................................36372
970.2270 (b)(2) introductory text amended..........................36372
970.2303--970.2307-2 (Subpart 970.23) Heading revised..............36372
970.2303-1 Redesignated as 970.2303-2-70...........................36372
    (c)(1) amended.................................................36378
970.2303-2 Redesignated as 970.2303-3..............................36372
    970.2303-2-70 Redesignated from 970.2303-1; (c)(1) and (2)(ii) 
amended............................................................36372
970.2303-3 Redesignated from 970.2303-2; (a) introductory text 
        amended....................................................36372
970.2304 Revised...................................................36372
970.2304-2 Introductory text amended...............................36372
970.2305-4 (a) amended.............................................36372
970.2306 (a) amended...............................................36372
970.2803-1 (a)(2)(iii), (b)(1) introductory text, (2) introductory 
        text, (iv) and (3) amended.................................36372
970.2803-2 Amended.................................................36372
970.2902-1 Redesignated as 970.2902-3..............................36372
970.2902-3 Redesignated from 970.2902-1; heading revised; (a) 
        amended; (b) and (c) redesignated as new (c) and (d).......36372
970.2903-1 Redesignated as 970.2903-2..............................36372
970.2903-2 Redesignated from 970.2903-1; heading revised; 
        introductory text, (a) and (b) introductory text amended 
                                                                   36372
970.2904-1 (a) revised; (b) amended................................36373
970.3002--970.3002-1 (Subpart 970.30) Heading revised..............36373
970.3002-1 Heading revised.........................................36373
970.3101-00-70 (a) amended.........................................36378
970.3101-9 Heading revised.........................................36373
970.3101-10 Heading revised; (a) and (b) amended...................36373
970.3102-3-70 (a) introductory text, (3) introductory text and (i) 
        amended....................................................36373
970.3102-05 Heading revised........................................36373
970.3102-05-4 Heading revised; (d) amended.........................36373
970.3102-05-6 Heading revised......................................36373
970.3102-05-18 Heading revised.....................................36373
970.3102-05-19 Amended.............................................36373
970.3102-05-22 Heading revised.....................................36373
970.3102-05-28 Heading revised.....................................36373
970.3102-05-30 Redesignated as 970.3102-05-30-70; new 970.3102-05-
        30 added...................................................36373
970.3102-05-30-70 Redesignated from 970.3102-05-30; (b) 
        introductory text amended..................................36373

[[Page 893]]

970.3102-05-33 Heading revised.....................................36373
970.3102-05-46 (a)(5) revised......................................36373
970.3102-05-47 Heading revised.....................................36373
970.3102-05-70 Amended.............................................36373
970.3170 Introductory text amended.................................36373
970.3200 Amended...................................................36373
970.3200-1-1 Amended...............................................36373
970.3204-1 (a) and (c) introductory text amended...................36373
970.3270 (a)(1) through (6), (b)(1) and (2) amended................36373
970.3400-1 Amended.................................................36373
970.3500 Amended...................................................36373
970.3501-1 (b)(3) and (c)(2) amended...............................36373
970.3501-2 Amended.................................................36373
970.3501-3 (b) introductory text amended...........................36373
970.3501-4 Amended.................................................36373
970.3605-1 Amended.................................................36374
970.3605-2 Amended.................................................36374
970.3770-1 Amended.................................................36374
970.4102-1 (a) and (b) amended; (c) revised........................36374
970.4207-03-02 (a) introductory text, (2) introductory text, (ii) 
        and (iii) amended..........................................36374
970.4207-03-70 Amended.............................................36374
970.4207-05-01 Heading revised; (b)(4) introductory text amended 
                                                                   36374
970.4302-1 Amended.................................................36374
970.4401-1 (a), (b) introductory text and (4) introductory text 
        amended....................................................36374
970.4401-2 (a) introductory text amended...........................36374
970.4401-3 (a)(1) introductory text amended........................36374
970.4402-2 (d) introductory text and (2) introductory text amended
                                                                   36374
970.4402-3 (a) introductory text, (3), (b) introductory text, (1), 
        (c)(1) introductory text, (i) and (ii) amended.............36374
970.4402-4 (a) introductory text amended...........................36374
970.5004--970.5070-3 (Subpart 970.50) Heading revised..............36374
970.5001 Redesignated from 970.5004................................36374
970.5001-4 Redesignated from 970.5004-1 and amended................36374
970.5004 Redesignated as 970.5001..................................36374
970.5004-1 Redesignated as 970.5001-4..............................36374
970.5070-1 (a) and (b) amended.....................................36374
970.5070-2 Introductory text and (a) amended.......................36374
970.5070-3 (a) and (b) amended.....................................36374
970.5203-1 Introductory text and clause amended....................36374
    Clause amended..........................................36379, 36380
970.5203-2 Introductory text amended...............................36374
    Clause amended..........................................36379, 36380
970.5203-3 Clause amended............................36374, 36379, 36380
970.5204-1 Introductory text amended...............................36374
    Clause amended.................................................36379
970.5204-2 Introductory text amended...............................36374
970.5204-3 Introductory text amended...............................36374
    Clause amended..........................................36379, 36380
970.5208-1 Introductory text amended...............................36374
970.5209-1 Introductory text amended...............................36374
970.5211-1 Clause amended..........................................36379
970.5215-1 Introductory text, clause and Alternates I through IV 
        amended....................................................36374
970.5215-1 Clause and Alternate III amended........................36379
    Clause amended.................................................36380
970.5215-3 Clause and Alternates I and II amended...........36375, 36379
    Clause and Alternate I amended.................................36380
970.5215-4 Clause amended............................36375, 36379, 36380
970.5215-5 Introductory text amended...............................36375
970.5217-1 Introductory text and clause amended....................36375
    Clause amended..........................................36376, 36379
970.5222-1 Introductory text amended...............................36375
970.5222-2 Introductory text and clause amended....................36375
    Clause amended..........................................36379, 36380
970.5223-1 Introductory text and clause amended....................36375
    Clause amended..........................................36379, 36380
970.5223-2 Clause amended..........................................36379
970.5223-3 Heading revised.........................................36375

[[Page 894]]

    Clause amended.................................................36380
970.5223-4 Introductory text and clause amended....................36375
    Clause amended..........................................36379, 36380
970.5228-1 Clause amended............................36375, 36379, 36380
970.5229-1 Clause amended............................36375, 36379, 36380
970.5231-4 Introductory text and Alternates I and II amended.......36375
    Alternate II amended....................................36379, 36380
970.5232-1 Heading revised; introductory text amended..............36375
    Clause amended..........................................36379, 36380
970.5232-2 Clause and Alternates I through IV amended..............36375
    Clause amended.................................................36376
    Clause and Alternates II, III and IV amended...................36379
    Clause and Alternates II and IV amended........................36381
970.5232-3 Clause and Alternate I amended...................36376, 36379
    Clause amended.................................................36381
970.5232-4 Introductory text, clause and Alternate I amended.......36376
    Clause amended..........................................36376, 36381
970.5232-5 Introductory text and clause amended....................36376
    Clause amended..........................................36378, 36380
970.5232-6 Introductory text and clause amended....................36376
    Clause amended.................................................36380
970.5232-7 Introductory text and clause amended....................36376
    Clause amended..........................................36380, 36381
970.5232-8 Introductory text and clause amended....................36376
    Clause amended..........................................36380, 36381
970.5235-1 Introductory text and clause amended....................36376
    Clause amended.................................................36380
970.5236-1 Introductory text amended...............................36376
    Clause amended..........................................36380, 36381
970.5242-1 Revised.................................................36376
    Clause amended..........................................36380, 36381
970.5243-1 Introductory text amended...............................36376
    Clause amended..........................................36380, 36381
970.5244-1 Revised.................................................36376
970.5245-1 Introductory text, clause, and Alternate I amended......36378
    Clause and Alternate I amended.................................36380
    Clause amended.................................................36381

                                  2010

48 CFR
                                                                   75 FR
                                                                    Page
Chapter 9
907 Authority citation revised.....................................57692
907.105 (Subpart 907.1) Added; interim.............................57692
919 Authority citation revised.....................................69012
919.201 (c) amended................................................69012
919.501 (g) amended................................................69012
919.502 Added......................................................69012
919.502-2 Heading revised..........................................69012
919.503 Amended....................................................69012
919.705-6 (Subpart 919.7) Heading revised..........................69012
919.705-6 Amended..................................................69012
919.805-2 Amended..................................................69012
919.7007 (a) introductory text amended.............................69012
919.7008 (a) amended...............................................69012
919.7009 Introductory text amended.................................69012
919.7010 Introductory text, (c) and (k) amended....................69012
919.7011 (a) introductory text, (1) and (b) amended................69012
919.7012 (a) amended...............................................69012
922.103-5 Amended..................................................69012
922.608-3--922.608-6 (Subpart 922.6) Removed.......................69012
922.800 Amended....................................................69012
923 Heading revised................................................69012
923 Heading revised; interim.......................................57692
923.002 Added; interim.............................................57692
923.101--923.103 (Subpart 923.1) Added; interim....................57693
923.405--923.471 (Subpart 923.4) Removed; interim..................57693
923.500 Added......................................................69012
923.570-1 Revised..................................................69012
923.570-3 (a) amended..............................................69012
923.703 (Subpart 923.7) Removed; interim...........................57693
923.903 (Subpart 923.9) Added; interim.............................57693
923.7003 (h) added.................................................69012
924 Added..........................................................69013
925.103 (a) amended; (b)(2)(ii) added..............................69013
925.202 Revised....................................................69013
925.901 (Subpart 925.9) Removed....................................69013

[[Page 895]]

925.1001 (Subpart 925.10) Added....................................69013
926 Authority citation revised.....................................69012
926.7001 (a), (c) and (e) amended..................................69013
926.7005 (b)(1) introductory text amended..........................69013
926.7006 (a) introductory text and (c) amended.....................69013
926.7007 (d) and (e) amended.......................................69013
926.7102 (1) and (2) amended.......................................69013
926.7104 Amended...................................................69013
928.101-1 Amended..................................................29459
928.301 Amended....................................................29459
931.102 Amended....................................................29459
931.205-32 (a) amended.............................................29459
931.205-47 (h)(1) amended..........................................29459
932.006-4 (a) amended..............................................29459
932.501-2 (a)(3) revised...........................................29458
932.602 Redesignated from 932.605; heading revised; (b) 
        designation removed........................................29458
932.605 Redesignated as 932.602....................................29458
932.803 (d) amended................................................29459
932.7004-1 Amended.................................................29459
932.7004-3 (a) amended.............................................29459
933.103 (k) amended................................................29459
933.104 (b), (c) and (g) amended...................................29459
933.106 (a) amended................................................29459
935.010 Revised....................................................29458
936.202 Redesignated as 936.202-70.................................29458
936.202-70 Redesignated from 936.202; heading revised..............29458
936.202-71 Added; interim..........................................57693
936.602-70 (a)(8) amended..........................................29459
936.609-3 Amended..................................................29459
936.7100 Amended...................................................29459
937 Authority citation revised.....................................29458
937.204 (Subpart 937.2) Added......................................29458
937.7040 Amended...................................................29459
941.201-70 Revised.................................................29458
942.704 (b) amended................................................29459
942.705-1 (b)(1) amended...........................................29459
942.803 (c)(1) amended.............................................29458
949 Authority citation revised.....................................29458
949.101 Amended....................................................29458
949.501--949.505 (Subpart 949.5) Removed...........................29458
950.7003 (a) amended...............................................29459
951.102 (e)(4)(iii) redesignated as (e)(4).........................29458
951.102 (a) amended................................................29459
952 Authority citation revised.....................................29459
952.219-70 Clause amended..........................................69014
952.223-76 Clause amended..........................................69013
952.223-77 Clause amended..........................................69013
952.223-78 Added; interim..........................................57693
952.225-70 (b) introductory text amended...........................69014
952.226-70 (a) introductory text, (1), (c) and (d) amended.........69014
952.226-71 (a) introductory text and (1) amended...................69014
952.226-72 (a) introductory text, (1), (b), introductory text, 
        (2), (c)(1) and (2) amended................................69014
952.226-73 (a) introductory text, (1), (i) and (b) amended.........69014
952.226-74 Introductory text and (b) amended.......................69014
952.233-2 Introductory text amended................................29459
952.233-4 (a) and (b) amended......................................29459
952.235-71 (b)(1) amended..........................................29459
952.247-70 Clause amended..........................................29459
952.250-70 (e)(2) amended..........................................29459
970.0100 Amended...................................................68219
970.0103 (a) introductory text heading and (3) amended.............68219
970.0404-2 (b) amended.............................................68219
970.1504-1-4 (e) introductory text and (2) introductory text 
        amended....................................................68220
970.1907--970.1907-1 (Subpart 970.19) Heading revised..............68219
970.1907 Heading revised...........................................68219
970.1907-1 Redesignated as 970.1907-4..............................68219
970.1907-4 Redesignated from 970.1907-1............................68219
970.2201-1-1 Amended...............................................68220
970.2201-1-2 (a)(1)(ii)(A) and (C) amended.........................68220
    (a)(1)(ii), (iii) and (v)(A) amended...........................68221
970.2301 Added; interim............................................57695
970.2301-1 Added; interim..........................................57695
970.2301-2 Added; interim..........................................57695
970.2304 Removed; interim..........................................57695
970.2304-1 Removed; interim........................................57695
970.2304-2 Removed; interim........................................57695
970.2305-2 (b) amended.............................................68221
970.2306 (b)(4) amended............................................68221
970.2307 Removed; interim..........................................57695
970.2307-1 Removed; interim........................................57695
970.2307-2 Removed; interim........................................57695
970.2570 (Subpart 970.25) Added....................................68219
970.2671-2 Amended.................................................68221
970.2672-2 Amended.................................................68221
970.2672-3 Amended.................................................68221
970.2673-1 Introductory text, (a) and (b) amended..................68219

[[Page 896]]

970.2673-2 Amended.................................................68221
970.3102-05-6 (a)(7)(i) and (ii) revised; (p)(1) amended...........68219
970.3102-05-56 (e)(3) introductory text amended....................68220
970.3204-1 (a) amended.............................................68221
970.3400 Redesignated as 970.3405..................................68220
970.3400-1 Redesignated as 970.3405-2..............................68220
970.3405 Redesignated from 970.3400................................68220
970.3405-2 Redesignated from 97.3400-1.............................68220
970.3706 Added.....................................................68220
970.3706-1 Added...................................................68220
970.3770-1 Revised.................................................68220
970.5204-1 Clause amended..........................................68220
970.5215-3 (b)(4)(iii) amended.....................................68221
970.5222-1 Amended.................................................68221
970.5223-1 (b) and (2) amended.....................................68221
970.5223-2 Removed; interim........................................57695
970.5223-3 Clause amended..........................................68220
970.5223-4 Clause amended..........................................68220
970.5223-5 Removed; interim........................................57695
970.5223-6 Added; interim..........................................57695
970.5223-7 Added; interim..........................................57695
970.5226-1 Amended.................................................68221
970.5226-2 Introductory text amended...............................68221
970.5226-3 Introductory text amended...............................68221
970.5232-2 (e)(2)(iv)(B) amended...................................68221
970.5232-3 Clause amended...................................68220, 68221
970.5232-5 (b) amended.............................................68221
970.5235-1 Clause amended..........................................68220
Chapter 13
Chapter 13 Revised.................................................10570
1352.201-71 Clause heading corrected...............................14496
1352.201-72 Clause heading corrected...............................14496
1352.208-70 Clause heading corrected...............................14496
1352.209-70 Clause heading corrected...............................14496
1352.209-71 Clause heading corrected...............................14496
1352.209-72 Clause heading corrected...............................14496
1352.209-73 Clause heading corrected...............................14496
1352.209-74 Clause heading corrected...............................14496
1352.209-75 Clause heading corrected...............................14496
1352.213-70 Clause heading corrected...............................14496
1352.213-71 Clause heading corrected...............................14496
1352.215-70 Clause heading corrected...............................14496
1352.215-71 Clause heading corrected...............................14496
1352.215-72 Clause heading corrected...............................14496
1352.215-73 Clause heading corrected...............................14496
1352.215-74 Clause heading corrected...............................14496
1352.215-75 Clause heading corrected...............................14496
1352.216-70 Clause heading corrected...............................14496
1352.216-71 Clause heading corrected...............................14496
1352.216-72 Clause heading corrected...............................14496
1352.216-73 Clause heading corrected...............................14496
1352.216-74 Clause heading corrected...............................14496
1352.216-75 Clause heading corrected...............................14496
1352.216-76 Clause heading corrected...............................14496
1352.216-77 Clause heading corrected...............................14496
1352.219-70 Clause heading corrected...............................14496
1352.219-71 Clause heading corrected...............................14496
1352.219-72 Clause heading corrected...............................14496
1352.227-70 Clause heading corrected...............................14496
1352.228-70 Clause heading corrected...............................14496
1352.228-71 Clause heading corrected...............................14496
1352.228-72 Clause heading corrected...............................14496
1352.228-73 Clause heading corrected...............................14496
1352.228-74 Clause heading corrected...............................14496
1352.228-75 Clause heading corrected...............................14496
1352.228-76 Clause heading corrected...............................14496
1352.231-70 Clause heading corrected...............................14496

[[Page 897]]

1352.231-71 Clause heading corrected...............................14496
1352.233-70 Clause heading corrected...............................14496
1352.233-71 Clause heading corrected...............................14496
1352.235-70 Clause heading corrected...............................14496
1352.235-71 Clause heading corrected...............................14496
1352.235-72 Clause heading corrected...............................14496
1352.235-73 Clause heading corrected...............................14496
1352.237-70 Clause heading corrected...............................14496
1352.237-71 Clause heading corrected...............................14496
1352.237-72 Clause heading corrected...............................14496
1352.237-73 Clause heading corrected...............................14496
1352.237-74 Clause heading corrected...............................14496
1352.237-75 Clause heading corrected...............................14496
1352.239-70 Clause heading corrected...............................14496
1352.239-71 Clause heading corrected...............................14496
1352.239-72 Clause heading corrected...............................14496
1352.242-70 Clause heading corrected...............................14496
1352.245-70 Clause heading corrected...............................14496
1352.246-70 Clause heading corrected...............................14496
1352.270-70 Clause heading corrected...............................14496
1352.270-71 Clause heading corrected...............................14496
1352.271-70 Clause heading corrected...............................14496
1352.271-71 Clause heading corrected...............................14496
1352.271-72 Clause heading corrected...............................14496
1352.271-73 Clause heading corrected...............................14496
1352.271-74 Clause heading corrected...............................14496
1352.271-75 Clause heading corrected...............................14496
1352.271-76 Clause heading corrected...............................14496
1352.271-77 Clause heading corrected...............................14496
1352.271-78 Clause heading corrected...............................14496
1352.271-79 Clause heading corrected...............................14496
1352.271-80 Clause heading corrected...............................14496
1352.271-81 Clause heading corrected...............................14496
1352.271-82 Clause heading corrected...............................14496
1352.271-83 Clause heading corrected...............................14496
1352.271-84 Clause heading corrected...............................14496
1352.271-85 Clause heading corrected...............................14496
1352.271-86 Clause heading corrected...............................14496
1352.271-87 Clause heading corrected...............................14496
1352.271-88 Clause heading corrected...............................14496
1352.271-89 Clause heading corrected...............................14496
1352.271-90 Clause heading corrected...............................14496
Chapter 14
Chapter 14 Revised; interim........................................19829

                                  2011

48 CFR
                                                                   76 FR
                                                                    Page
Chapter 9
901.101 Amended.....................................................7689
901.102 Redesignated as 901.103.....................................7689
901.103 Redesignated as 901.104; new 901.103 redesignated from 
        901.102 and revised.........................................7689
901.104 Redesignated as 901.105; new 901.104 redesignated from 
        901.103 and amended.........................................7689
901.104-1 Redesignated as 901.105-1.................................7689
901.104-2 Redesignated as 901.105-2.................................7689
901.104-3 Redesignated as 901.105-3.................................7689
901.105 Redesignated as 901.106; new 901.105 redesignated from 
        901.104.....................................................7689
901.105-1 Redesignated from 901.104-1 and revised...................7689

[[Page 898]]

901.105-2 Redesignated from 901.104-2 and amended...................7689
901.105-3 Redesignated from 901.104-3 and amended...................7689
901.106 Redesignated from 901.105 and revised.......................7689
901.301-70 Revised..................................................7689
901.601--901.602-3 (Subpart 901.6) Heading revised..................7689
901.601 Revised.....................................................7689
901.602-3 (b)(2) revised; (b)(3) amended............................7689
901.603 Added.......................................................7689
901.603-1 Added.....................................................7689
901.603-70 Added....................................................7689
902 Revised.........................................................7690
903.303 (a) amended.................................................7690
903.405 Revised.....................................................7690
903.603 (a) amended.................................................7690
903.700 (Subpart 903.7) Added.......................................7690
903.1004 (Subpart 903.10) Added.....................................7690
904.404 (d)(1) amended..............................................7690
904.804-1 (a) amended...............................................7690
904.7001 Amended....................................................7690
904.7002 Amended....................................................7690
906.102 (d)(1) amended; (d)(4) and (5) revised......................7690
906.202 (b)(1) amended..............................................7690
906.304 (c)(2) amended..............................................7690
906.501 Revised.....................................................7690
907 Removed.........................................................7690
908.7106 (b) amended................................................7691
908.7107 Revised....................................................7691
909.400 (a) and (b) amended.........................................7691
    (c) amended.....................................................7692
909.401 Amended.....................................................7691
909.403 Amended.....................................................7692
909.405 Revised.....................................................7691
909.406-2 (c) introductory text amended.............................7691
    (d)(1) amended..................................................7692
909.406-3 (a)(1), (2) introductory text, (iv) through (vii), 
        (b)(2) and (3) amended; (b)(4) and (d)(4) revised...........7691
909.406-70 (b) amended..............................................7692
    (a) amended.....................................................7692
909.407-3 (e)(1)(vii) revised.......................................7692
    (b)(2) and (e)(1)(v) amended....................................7692
911.600 Amended.....................................................7692
914.404-1 Amended...................................................7692
914.407-3 (e) amended...............................................7692
914.407-4 Amended...................................................7692
914.502 (c) amended.................................................7692
915.201 Heading revised.............................................7692
915.207-70 (e)(2), (f)(2)(i) and (5) amended........................7693
915.305 (d) amended.................................................7692
915.404 Table corrected............................................10476
915.404-2 (a)(1) amended......................................7692, 7693
915.404-2-70 (a)(1) and (2) amended.................................7692
915.404-4 (c)(4)(i) amended.........................................7692
    (c)(4)(i) and (d) amended.......................................7693
915.404-4-70 Amended................................................7693
915.404-4-70-2 (d) revised..........................................7692
    (a) amended.....................................................7693
915.404-4-70-3 Amended..............................................7693
915.404-4-70-4 (a) amended..........................................7693
915.404-4-70-7 (b) amended..........................................7693
915.404-4-71-1 (a) introductory text amended........................7693
    (a) introductory text corrected................................10476
915.404-4-72 (a) amended............................................7693
916.203-4 (d)(2) amended............................................7693
916.307 (a) added; (g) amended......................................7693
917.602 (c) amended.................................................7693
917.7200 (a) amended................................................7693
917.7301-1 (c) and (d) removed......................................7693
917.7401 Introductory text amended; (b) revised.....................7693
917.7402 Introductory text amended; (b), (c)(2) and (4) revised; 
        (d) added...................................................7693
917.7403 Revised....................................................7693
952.202-1 Revised...................................................7693
952.204-2 Clause amended......................................7693, 7694
952.204-71 Clause amended...........................................7694
952.204-73 Clause amended...........................................7694
952.209-72 Introductory text amended................................7694
952.215-70 Clause amended...........................................7694
952.216-7 Amended...................................................7694
952.216-15 Alternate amended........................................7694
952.217-70 Clause amended...........................................7694
Chapter 10
Chapter10 Revised..................................................42057
Chapter 14
1401.670 Revised...................................................50141
1401.670-1 Revised.................................................50141
1402.170 Amended...................................................50141
1415.404-4 (a) amended; (c) removed................................50141
1417.502 (Subpart 1417.5) Removed..................................50141
1419.202-70 (h) revised............................................50142
1436.270-1 (b) table revised.......................................50142
1452.201-70 Added..................................................50142
1452.228-7 (a) amended.............................................50142

[[Page 899]]

                                  2012

48 CFR
                                                                   77 FR
                                                                    Page
Chapter 7
704.7001--704.7005 (Subpart 704.70) Added...........................8170
713.106-370 Added...................................................8171
714.408-170 Added...................................................8171
715.70 (Subpart 715.70) Added.......................................8171
716.501-270--716.506 (Subpart 716.5) Added..........................8171
744 Added...........................................................8171
752.204-70 Added....................................................8171
752.204-71 Added....................................................8171
752.216-71 Added....................................................8172
Chapter 8
832.7000--832.7002-2 (Subpart 832.70) Added........................70709
852.232-72 Added...................................................70709
Chapter 9
908.1102 Revised...................................................74386
908.1102-70 Added..................................................74386
908.1104 (f) amended...............................................74386
908.7101-2 (a) revised; (b) amended................................74386
908.7101-3 Amended.................................................74386
908.7101-4 (a) amended.............................................74386
908.7101-5 Amended.................................................74386
908.7101-6 (a) and (b) amended.....................................74386
908.7101-7 (a) and (e) amended; (b) revised........................74387
908.7102 Revised...................................................74387
908.7103 Amended...................................................74387
908.7104 Amended...................................................74387
908.7121 Revised...................................................74387
945 Revised........................................................74387
952.245-5 Amended..................................................74389
970.5244-1 Clause amended..........................................74389
970.5245-1 Clause amended..........................................74389
Chapter 10
1002.70 Amended....................................................40304
1002.101 Revised...................................................40304
1032.7000--1032.7003 (Subpart 1032.70) Added.......................40304
1052.232-7003 Added................................................40305

                                  2013

  (Regulations published from January 1, 2013, through October 1, 2013)

48 CFR
                                                                   78 FR
                                                                    Page
Chapter 8
819.307 Revised; interim...........................................59865
Chapter 9
931.205-19 Revised.................................................25816
931.205-33 Revised.................................................25816
952.231-71 Revised.................................................25817
    (f)(1)(i) correctly amended....................................29247
970.2803-2 Revised.................................................25817
970.5228-1 Revised.................................................25817
Chapter 14
1401.301-80 Added..................................................34271
1452.280-1 Added...................................................34271
1452.280-2 Added...................................................34271
1452.280-3 Added...................................................34271
1452.280-4 Added...................................................34271
1480 (Subchapter H) Added..........................................34273


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