[Federal Register Volume 61, Number 87 (Friday, May 3, 1996)]
[Proposed Rules]
[Pages 19891-19902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10757]



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DEPARTMENT OF ENERGY

48 CFR Parts 901, 905, 906, 908, 915, 916, 917, 922, 928, 932, 933, 
935, 936, 942, 945, 952 and 971

RIN 1991-AB25


Acquisition Regulation; Regulatory Reinvention

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) proposes to amend the 
Department of Energy Acquisition Regulation (DEAR) in its continuing 
effort to streamline and simplify the acquisition process and to meet 
the objectives of several Executive Orders (EO), including: EO 12861, 
Elimination of One-Half of Executive Branch Internal Regulations; EO 
12931, Federal Procurement Reform; and EO 12866, Regulatory Planning 
and Review. This proposed rule revises certain regulatory material and 
deletes other material that has been determined to be nonregulatory and 
unnecessary. Specific material to be revised or deleted from the DEAR 
is summarized in the ``Section-by-Section Analysis'' appearing later in 
this document.

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

ADDRESSES: Send written comments to the attention of Kevin M. Smith, 
Office of Policy (HR-51), Office of Procurement and Assistance 
Management, Department of Energy, 1000 Independence Avenue, SW., 
Washington, D.C. 20585.

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

SUPPLEMENTARY INFORMATION:

I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12778
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under Executive Order 12612
    F. Review Under the National Environmental Policy Act
    G. Public Hearing Determination

I. Background

    Executive Order (EO) 12861, dated September 11, 1993, Elimination 
of One-Half of Executive Branch Internal Regulations, was issued by the 
President to streamline Government operations, improve productivity, 
and improve customer service. EO 12931, dated October 13, 1994, Federal 
Procurement Reform, calls for significant changes to make the 
Government procurement process more effective and efficient. EO 12866, 
dated September 30, 1993, Regulatory Planning and Review, requires 
agencies to review regulations to improve effectiveness and to reduce 
regulatory burden. This proposed rule represents DOE's third action to 
eliminate existing regulatory material that is unnecessary. In 
promulgating this rule, the Department will further the objectives of 
the EOs by reducing the volume of the DEAR; streamlining operations; 
reducing constraints, prescriptive requirements, and administrative 
processes; making requirements outcome oriented vs. process oriented; 
and, defining roles and assigning responsibilities at the lowest 
appropriate level within the procurement organization. This proposed 
rule makes three types of changes to the DEAR. Certain regulatory 
coverage is being revised and condensed

[[Page 19892]]

to simplify and streamline the acquisition process; substantive policy 
changes have not been made in these areas. In addition, to implement 
certain requirements of the Federal Acquisition Streamlining Act of 
1994, Pub. L. 103-355, regarding the availability of protest files and 
agency protest reviews, two new solicitation provisions are being 
added. Consistent with the requirements of E.O. 12979, dated October 
25, 1995, Agency Procurement Protests, language also is being added to 
encourage the use of alternative dispute resolution procedures in 
appropriate circumstances. Finally, other material that has been 
determined to be nonregulatory in nature is being removed from the 
DEAR, including informational material and internal guidance and 
procedures.
II. Section-by-Section Analysis
    1. Part 901 is revised to simplify the language, remove 
informational material, and remove internal procedures addressing 
deviations to the regulation, ratification of unauthorized commitments, 
and selection of contracting officers and their representatives.
    2. Subpart 905.4, addressing the internal DOE process for release 
of contract information, is removed.
    3. Section 906.302, citing the Atomic Energy Act authority for 
circumstances permitting other than full and open competition, is 
removed.
    4. Section 906.303, addressing the internal procedures for 
processing noncompetitive justifications, is removed.
    5. Part 908, addressing required sources of supplies and services, 
is revised to simplify the language, remove informational material, 
remove internal procedures, and to move subpart 908.3, addressing the 
acquisition of utility services, to the new Part 941.
    6. Subpart 915.5, addressing unsolicited proposals, is revised to 
simplify the language, remove informational material, and remove 
internal procedures.
    7. Subpart 915.6, addressing internal source selection procedures, 
is removed.
    8. Subsection 915.970-8, addressing weighted guidelines application 
considerations, is revised to remove informational material and 
internal guidance.
    9. Section 916.405, containing recommended language for award fee 
contract clauses, is removed.
    10. Subpart 917.70, addressing cost participation, is revised to 
simplify the language, remove informational material, and remove 
internal procedures.
    11. Subpart 917.72, addressing Program Opportunity Notices for 
commercial demonstrations, is revised to simplify the language, remove 
informational material, and remove internal procedures.
    12. Subpart 917.73, addressing Program Research and Development 
Announcements, is revised to simplify the language, remove 
informational material, and remove internal procedures.
    13. Subpart 917.74, addressing the acquisition, use and disposal of 
real estate, is revised to simplify the language, remove informational 
material, and remove internal procedures.
    14. Subpart 917.75, providing guidance for the use of multiple 
awards-phased acquisitions, is removed.
    15. Section 922.805, providing guidance to the contracting officer 
for obtaining affirmative action program posters, is removed.
    16. Subpart 922.70, providing guidance regarding construction 
laborers and mechanics, is removed.
    17. Subpart 928.1, addressing the use of bonds, is revised to 
simplify the language, remove informational material, and remove 
internal procedures.
    18. Section 932.102, providing information on contract financing, 
is revised to simplify the language, remove informational material, and 
remove internal procedures.
    19. Subpart 932.7, providing information on contract financing, is 
removed.
    20. Section 932.802, providing information on the use of partial 
assignments, is removed.
    21. Section 932.805, providing internal procedures for the 
information to be furnished to assignees, is removed.
    22. Subpart 932.9, addressing prompt payments, is revised to 
simplify the language, remove informational material, and remove 
internal procedures.
    23. Section 932.7000, providing introductory information on loan 
guarantees, is removed.
    24. Section 932.7001, providing definitions, is removed.
    25. Subpart 933.1, addressing protests, is revised to simplify the 
language, remove informational material, remove internal procedures, 
add two new solicitation provisions that address protest file 
availability and agency protest review, and add alternative dispute 
resolution procedures.
    26. Section 935.016, addressing research opportunity announcements, 
is revised to simplify the language, remove informational material, and 
remove internal procedures.
    27. Sections 936.601, 936.602-2, 936.602-3, and 936.602-4, 
providing internal procedures for contracting for architect-engineer 
services, are removed.
    28. Sections 936.603, 936.605, and 936.606, providing internal 
procedures for contracting for architect-engineer services, are 
removed.
    29. Subpart 936.72, providing internal information and guidance for 
the acquisition of special equipment, is removed.
    30. Part 941, addressing the acquisition of utility services, is 
added to include the coverage, as revised, that was previously 
contained in Part 908.
    31. Subsection 942.705-1, addressing final indirect cost rate 
determinations, is revised to simplify the language.
    32. Subsection 942.705-3, addressing negotiated rates for 
educational institutions, is revised to simplify the language.
    33. Subsection 942.705-4, addressing negotiated rates for state and 
local governments, is revised to simplify the language.
    34. Subsection 942.705-5, addressing negotiated rates for nonprofit 
organizations other than educational and state and local governments, 
is revised to simplify the language.
    35-36. Subpart 942.70, providing internal guidance and procedures 
for obtaining audit support services, is removed.
    37. Subsection 945.505-5, providing internal guidance for making 
records of plant equipment, is removed.
    38. Subsection 945.505-14, providing information for the completion 
of Government property reports, is removed.
    39. Section 952.214, addressing clauses related to sealed bidding, 
is removed as there is no material under that section title.
    40. Section 952.215, addressing clauses related to contracting by 
negotiation, is removed as the prescriptions for those clauses were 
removed in an earlier final rule.
    41. Subsection 952.233-2 is revised to change the DOE office that 
receives copies of protests.
    42. Subsection 952.233-4 is added to include a new solicitation 
provision regarding the availability of protest files.
    43. Subsection 952.233-5 is added to include a new solicitation 
provision regarding agency protest reviews.
    44. Subsection 952.251-70 is amended to correct the date of the 
contract clause Contractor Employee Travel Discounts.
    45. Part 971, providing internal procedures for the review and 
approval of contract actions, is removed.

[[Page 19893]]

III. Procedural Requirements

A. Review Under Executive Order 12866

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

B. Review Under Executive Order 12778

    Section 2 of Executive Order 12778 instructs each agency to adhere 
to certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in sections 2(a) 
and (b)(2), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected legal conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation specifies 
clearly any preemptive effect, effect on existing Federal law or 
regulation, and retroactive effect; describes any administrative 
proceedings to be available prior to judicial review and any provisions 
for the exhaustion of such administrative proceedings; and defines key 
terms. DOE certifies that this proposed rule meets the requirements of 
sections 2(a) and (b) of Executive Order 12778.

C. Review Under the Regulatory Flexibility Act

    This proposed rule was reviewed under the Regulatory Flexibility 
Act of 1980, Pub. L. 96-354, which requires preparation of a regulatory 
flexibility analysis for any rule that is likely to have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will have no impact on interest rates, tax policies or 
liabilities, the cost of goods or services, or other direct economic 
factors. It will also not have any indirect economic consequences such 
as changed construction rates. DOE certifies that this proposed rule 
will not have a significant economic impact on a substantial number of 
small entities and, therefore, no regulatory flexibility analysis has 
been prepared.

D. Review Under the Paperwork Reduction Act

    No new information collection or recordkeeping requirements are 
imposed by this proposed rule. Accordingly, no OMB clearance is 
required under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et 
seq.).

E. Review Under Executive Order 12612

    Executive Order 12612, entitled ``Federalism,'' 52 FR 41685 
(October 30, 1987), requires that regulations, rules, legislation, and 
any other policy actions be reviewed for any substantial direct effects 
on States, on the relationship between the Federal Government and the 
States, or in the distribution of power and responsibilities among 
various levels of government. If there are sufficient substantial 
direct effects, then the Executive Order requires preparation of a 
federalism assessment to be used in all decisions involved in 
promulgating and implementing a policy action. DOE has determined that 
this proposed rule will not have a substantial direct effect on the 
institutional interests or traditional functions of States.

F. Review Under the National Environmental Policy Act

    Pursuant to the Council on Environmental Quality Regulations (40 
CFR 1500-1508), the Department has established guidelines for its 
compliance with the provisions of the National Environmental Policy Act 
(NEPA) of 1969 (42 U.S.C. 4321, et seq.). Pursuant to Appendix A of 
Subpart D of 10 CFR 1021, National Environmental Policy Act 
Implementing Procedures (Categorical Exclusion A6), DOE has determined 
that this proposed rule is categorically excluded from the need to 
prepare an environmental impact statement or environmental assessment.

G. Public Hearing Determination

    DOE has concluded that this proposed rule does not involve any 
significant issues of law or fact. Therefore, consistent with 5 U.S.C. 
553, DOE has not scheduled a public hearing.

List of Subjects in 48 CFR Parts 901, 905, 906, 908, 915, 916, 917, 
922, 928, 932, 933, 935, 936, 942, 945, 952, and 971

    Government procurement.

    Issued in Washington, D.C., on April 24, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.

    For the reasons set out in the preamble, Chapter 9 of Title 48 of 
the Code of Federal Regulations is proposed to be amended as set forth 
below:
    1. The authority citation for Parts 901, 905, 906, 908, 915, 916, 
917, 922, 928, 932, 933, 935, 936, 942, 945, 952, and 971 continues to 
read as follows:

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

    2. Part 901 is revised to read as follows:

PART 901--FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 901.1--Purpose, Authority, Issuance

Sec.
901.101  Purpose.
901.102  Authority.
901.103  Applicability.
901.104  Issuance.
901.104-1  Publication and code arrangement.
901.104-2  Arrangement of regulations.
901.104-3  Copies.
901.105  OMB control numbers.

Subpart 901.3--Agency Acquisition Regulations

901.301-70  Other issuances related to acquisition.

Subpart 901.6--Contracting Authority and Responsibilities

901.601  General.
901.602-3  Ratification of unauthorized commitments.

Subpart 901.1--Purpose, Authority, Issuance


901.101  Purpose.

    The Department of Energy Acquisition Regulation (DEAR) establishes 
uniform acquisition policies which implement and supplement the Federal 
Acquisition Regulation (FAR).


901.102  Authority.

    The DEAR and amendments thereto are issued by the Procurement 
Executive pursuant to a delegation from the Secretary in accordance 
with the authority of section 644 of the Department of Energy 
Organization Act (42 U.S.C. 7254), section 205(c) of the Federal 
Property and Administrative Services Act of 1949, as amended, (40 
U.S.C. 486(c)), and other applicable law.


901.103  Applicability.

    The FAR and DEAR apply to all DOE acquisitions of supplies and 
services which obligate appropriated funds unless otherwise specified 
in this chapter.


901.104  Issuance.


901.104-1  Publication and code arrangement.

    (a) The DEAR and its subsequent changes are published in the 
Federal Register, cumulative form in the Code of Federal Regulations, 
and a separate loose-leaf edition.
    (b) The DEAR is issued as Chapter 9 of Title 48 of the Code of 
Federal Regulations.

[[Page 19894]]

901.104-2  Arrangement of regulations.

    (a) General. The DEAR is divided into the same parts, subparts, 
sections, subsections and paragraphs as is the FAR.
    (b) Numbering. The numbering illustrations at (FAR) 48 CFR 1.104-
2(b) apply to the DEAR, but the DEAR numbering will be preceded with a 
9 or a 90. Material which supplements the FAR will be assigned the 
numbers 70 and up.


901.104-3  Copies.

    Copies of the DEAR published in the Federal Register or Code of 
Federal Regulations may be purchased from the Superintendent of 
Documents, Government Printing Office, Washington, DC 20402.


901.105  OMB control numbers.

    The Paperwork Reduction Act of 1980, Public Law 98-511, and the 
Office of Management and Budget's implementing regulations at 5 CFR 
Part 1320, require that reporting and record keeping requirements 
affecting 10 or more members of the public be cleared by that Office. 
The OMB control number for the collection of information under 48 CFR 
Chapter 9 is 1910-4100.

Subpart 901.3--Agency Acquisition Regulations


901.301-70  Other issuances related to acquisition.

    In addition to the FAR and DEAR, there are other issuances which 
deal with acquisition. Among these are the Federal Property Management 
Regulations, the DOE Property Management Regulations, and DOE 
Directives.

Subpart 901.6--Contracting Authority and Responsibilities


901.601  General.

    Contracting authority vests in the Secretary of Energy. The 
Secretary has delegated this authority to the Procurement Executive. 
The Procurement Executive has redelegated this authority to the Heads 
of Contracting Activities (HCA). These delegations are formal written 
delegations containing dollar limitations and conditions. Each HCA in 
turn makes formal contracting officer appointments within the 
contracting activity. 901.602-3 Ratification of unauthorized 
commitments.
    (b) (2) The Procurement Executive is authorized to ratify an 
unauthorized commitment.
    (3) The ratification authority of the Procurement Executive in 
paragraph (b)(2) of this section is delegated to the Head of the 
Contracting Activity (HCA) for individual unauthorized commitments of 
$25,000 or under. The ratification authority of the HCA is 
nondelegable.

PART 905--PUBLICIZING CONTRACT ACTIONS


905.4  [Removed]

    3. Subpart 905.4 is removed.

PART 906--COMPETITION REQUIREMENTS


906.302  [Removed]

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


906.303  [Removed]

    5. Section 906.303, including 906.303-1, is removed.
    6. Part 908 is revised to read as follows:

PART 908--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 908.8--Acquisition of Printing and Related Supplies

Sec.
908.802  Policy.

Subpart 908.11--Leasing of Motor Vehicles

908.1102  Presolicitation requirements.
908.1104  Contract clauses.
908.1170  Leasing of fuel-efficient vehicles.

Subpart 908.71--Acquisition of Special Items

908.7100  Scope of subpart.
908.7101  Motor vehicles.
908.7101-1  Consolidated acquisition of new vehicles by General 
Services Administration.
908.7101-3  Direct acquisition.
908.7101-4  Replacement of motor vehicles.
908.7101-5  Used vehicles.
908.7101-6  Acquisition of fuel-efficient vehicles.
908.7101-7  Government license tags.
908.7102  Aircraft.
908.7103  Office machines.
908.7104  Office furniture and furnishings.
908.7105  Filing cabinets.
908.7106  Security cabinets.
908.7107  Alcohol.
908.7108  Helium.
908.7109  Fuels and packaged petroleum products.
908.7111  Arms and ammunition.
908.7112  Materials handling equipment replacement standards.
908.7114  Wiretapping and eavesdropping equipment.
908.7115  Forms.
908.7116  Electronic data processing tape.
908.7117  Tabulating machine cards.

Subpart 908.8--Acquisition of Printing and Related Supplies


908.802  Policy.

    (b) Inclusion of printing requirements (limited exceptions are set 
forth in paragraphs 35-2 through 35-4 of the Government Printing and 
Binding Regulations) in contracts for supplies and services is 
prohibited unless specifically approved by the Director, Office of 
Administrative Services, Headquarters. Contracting officers shall 
insert the clause at 48 CFR 952.208-70.

Subpart 908.11--Leasing of Motor Vehicles


908.1102  Presolicitation requirements.

    (a)(4) Commercial vehicle lease sources may be used only when the 
General Services Administration (GSA) has advised that it cannot 
furnish the vehicle(s) through the Interagency Motor Pool System and it 
has been determined that the vehicle(s) are not available through the 
GSA Consolidated Leasing Program.


908.1104  Contract clauses.

    (e) The clause at 48 CFR 952.208-7, Tagging of Leased Vehicles, 
shall be inserted whenever a vehicle(s) is to be leased over 60 days, 
except for those vehicles exempted by (FPMR) 41 CFR 101-38.6.


908.1170  Leasing of fuel-efficient vehicles.

    (a) All sedans and station wagons and certain types of light 
trucks, as specified by GSA, that are acquired by lease for 60 
continuous days or more for official use by DOE or its authorized 
contractors, are subject to the requirements of the Energy Policy and 
Conservation Act of 1975 (EPCA), Public Law 94-163 and of Executive 
Order 12003 and subsequent implementing regulations.
    (b) Leased vehicles will meet the miles-per-gallon criteria of, and 
be incorporated in, the approved plan of the fiscal year in which 
leases are initiated, reviewed, extended, or increased in scope. 
Vehicle leases will specify the vehicle model type to be provided.

Subpart 908.71--Acquisition of Special Items


908.7100  Scope of subpart.

    This subpart sets forth requirements and procedures for the 
acquisition of special items by DOE and contractors authorized to use 
special sources of supply to the extent indicated herein.


908.7101  Motor vehicles.


908.7101-1  Consolidated acquisition of new vehicles by General 
Services Administration.

    (a) New vehicles shall be procured in accordance with (FPMR) 41 CFR 
101 25.304, 101-26.501, and 101-38.13, and

[[Page 19895]]

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


908.7101-3  Direct acquisition.

    Vehicles may be acquired by DOE activities directly rather than 
through GSA when a waiver has been granted by GSA. A copy of the 
activity's request to GSA for a waiver shall be forwarded to the 
Director, Office of Property Management, within the Headquarters 
procurement organization. In those cases involving general purpose 
vehicles where GSA refuses to grant a waiver and where it is believed 
that acquisition through GSA would adversely affect or otherwise impair 
the program, authority for direct acquisition shall be obtained from 
the above-mentioned Headquarters official, prior to acquisition. In the 
acquisition of special purpose vehicles for use by DOE and its 
authorized contractors, the Head of the Contracting Activity may 
authorize direct purchases. The purchase price for sedans and station 
wagons, shall not exceed any statutory limitation in effect at the time 
the acquisition is made. (See (DOE-PMR) 41 CFR 109-38.5102-4).


908.7101-4  Replacement of motor vehicles.

    (a) The replacement of motor vehicles shall be in accordance with 
the replacement standards prescribed in (FPMR) 41 CFR 101-38.9 and 
(DOE-PMR) 41 CFR 109-38.9.
    (b) The Heads of Contracting Activities may arrange to sell, as 
exchange sales, used motor vehicles being replaced and to apply the 
proceeds to the purchase of similar new vehicles. However, in the event 
personnel are not available to make such sales, or it is in the best 
interest of the DOE office, GSA may be requested to sell the used 
vehicles.


908.7101-5  Used vehicles.

    Heads of Contracting Activities may authorize the purchase of used 
vehicles where justified by special circumstances; e.g., when new 
vehicles are in short supply, the vehicles are to be used for 
experimental or test purposes, or the vehicles are acquired from 
exchange sale. In accordance with (DOE-PMR) 41 CFR 109-38.5102, the 
statutory passenger vehicle allocation requirements for DOE shall apply 
to any purchase of used vehicles except in the case of vehicles to be 
used exclusively for experimental or test purposes.


908.7101-6  (Acquisition of fuel-efficient vehicles.

    (a) All purchases of sedans and station wagons, and certain types 
of light trucks as specified by GSA, are subject to the requirements of 
the Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94-
163, and of Executive Orders 12003 and 12375 and subsequent 
implementing regulations.
    (b) Sedans, station wagons, and light trucks requisitioned 
according to an approved forecast, but not contracted for by GSA until 
the subsequent fiscal year, will be included in the acquisition plan 
for the miles-per-gallon criteria of the year in which GSA signs the 
purchase contract along with the new vehicles planned for acquisition 
that year.


908.7101-7  Government license tags.

    (a) Government license tags shall be procured and assignments 
recorded by DOE offices in accordance with (FPMR) 41 CFR 101-38.303. 
Special license tags for security purposes shall be purchased in 
accordance with State and local laws, regulations, and procedures. See 
(DOE-PMR) 41 CFR 109-38.3 and 109-38.6 for additional guidance.


908.7102  Aircraft.

    Acquisition of aircraft shall be in accordance with (DOE-PMR) 41 
CFR 109-38.5205.


908.7103  Office machines.

    Acquisitions of office machines by DOE offices and its authorized 
contractors shall be in accordance with (FPMR) 41 CFR 101-25.104, 101-
25.302, 101-25.302-3, 101-25.302-4, and 101-25.302-6, and 101-25.403, 
and (DOE-PMR) 41 CFR 109-25.302, 109-25.302-3, and 109-25.4.


908.7104  Office furniture and furnishings.

    Acquisitions of office furniture and furnishings by DOE offices 
shall be in accordance with (FPMR) 41 CFR 101-25.104, 101-25.302, 101-
25.302-1, 101-25.302-5, 101-25.302-7, and 101-25.302-8, 101-25.404 and 
101-26.505, and (DOE-PMR) 41 CFR 109-25.302, 109-25.302-1, and 109-
25.350.


908.7105  Filing cabinets.

    Acquisitions of filing cabinets shall be in accordance with (FPMR) 
41 CFR 101-26.308 and 101-25.302-2 and (DOE-PMR) 41 CFR 109-25.302-2.


908.7106  Security cabinets.

    (a) Acquisitions of security cabinets shall be in accordance with 
(FPMR) 41 CFR 101-26.507 and the ``prerequisites to ordering'' criteria 
contained in (FPMR) 41 CFR 101-25.302-2 and (DOE-PMR) 41 CFR 109-
25.302-2.
    (b) Fixed-price prime contractors and lower tier subcontractors may 
use GSA acquisition sources for security cabinets in accordance with 
(FPMR) 41 CFR 101-26.407 and FAR 51.


908.7107  Alcohol.

    (a) To the fullest extent practicable, alcohol for use by DOE or 
its cost-type contractors shall be procured on a tax-free basis.
    (b) ATF regulations relating to the acquisition and use of alcohol 
free of tax, by Government agencies, are set forth in 26 CFR 213.141 
through 213.146.
    (c) ATF Form 1444/1486, ``Tax Free Spirits or Specially Denatured 
Spirits for Use of United States,'' shall be used for acquisitions of 
specially denatured alcohol and ethyl alcohol. Section I of the form is 
the application for permission to acquire and Section II is the permit. 
If acquisition from more than one warehouse is desirable, separate 
applications must be made for withdrawal from each warehouse. When 
permits are no longer required, they should be forwarded to the Bureau 
of Alcohol, Tobacco and Firearms for cancellation. Alcohol procured by 
use of the ATF form referred to in this section shall be used 
exclusively on DOE work.
    (d) The Procurement Executive has been authorized to sign and 
delegate to others authority to sign applications under Bureau of 
Alcohol, Tobacco and Firearms regulations relating to the acquisition 
and use of alcohol free of tax. Specific DOE personnel have been 
delegated authority to execute Part I of Form 1444/1486 by letters to 
the Director, Bureau of Alcohol, Tobacco and Firearms without power of 
redelegation. Only the individuals so authorized shall execute Section 
I of these forms.
    (e) Applications on the ATF Form 1444/1486 shall be executed in 
duplicate by an authorized DOE official and mailed directly to the 
address on the application. Only one permit will be provided to each 
field organization. Due to the numerous locations managed by field 
operations offices, the exact shipping address need not be shown in 
block 3 of the form. Shipments, however, must be addressed to the 
``Department of Energy at various locations within the United States.'' 
The ATF will assign the application a permit number and return it to 
the requestor. Distribution of certified copies shall be controlled and 
each holder of a certified copy recorded.
    (f) A signed copy of the permit shall accompany the original 
purchase order issued to the plant or warehouse, where it shall be 
retained or returned with the shipment. Subsequent orders shall refer 
to the permit on file in the plant or warehouse if it was retained.
    (g) When alcohol is shipped, the shipper prepares the required form 
as specified by Bureau of Alcohol, Tobacco

[[Page 19896]]

and Firearms regulations and forwards them to the consignee. Upon 
receipt of the receiving report covering the shipment, the officer who 
signed the purchase order shall execute the certificate of receipt and 
forward it to the appropriate Regional Director, Bureau of Alcohol, 
Tobacco and Firearms. The carrier transporting the alcohol shall also 
be given a receipt as specified by Bureau of Alcohol, Tobacco and 
Firearms regulations.
    (h) Abandoned and forfeited alcohol which has come into the custody 
or control of a Federal agency may be obtained by following the 
procedure set forth in (FPMR) 41 CFR 101-48.1.


908.7108  Helium.

    (a) Acquisitions of helium by DOE and its authorized contractors 
shall be in accordance with this section.
    (b) The Helium Act (Public Law 86-777, as amended (50 U.S.C. 
167(d)) provides that, to the extent that supplies are readily 
available, whether in gaseous or liquid form, DOE shall purchase all 
major requirements of helium from the Secretary of Interior, Bureau of 
Mines, or from the Bureau of Mines distribution contractors eligible to 
sell Bureau of Mines helium to Federal agencies and their users in 
accordance with 30 CFR part 602.


908.7109  Fuels and packaged petroleum products.

    Acquisitions of fuel and packaged petroleum products by DOE offices 
shall be in accordance with (FPMR) 41 CFR 101-26.602. When contractors 
are authorized, consistent with 48 CFR part 951, to acquire such 
products from Defense sources, they shall do so in accordance with 
(FPMR) 41 CFR 101-26.602.


908.7111  Arms and ammunition.

    (a) Acquisition of arms and ammunition readily procurable in the 
civilian market shall be made in accordance with regular acquisition 
procedures.
    (b) Acquisition of arms and ammunition which are peculiar to the 
military services shall be made by submission of order form to the 
Commanding General, Headquarters, U.S. Army Material Development and 
Readiness Command, 5001 Eisenhower Avenue, Alexandria, VA 22333.


908.7112  Materials handling equipment replacement standards.

    Materials handling equipment shall be purchased for replacement 
purposes in accordance with the standards in (FPMR) 41 CFR 101-25.405 
and (DOE-PMR) 41 CFR 109-25.4. The Heads of Contracting Activities are 
authorized to replace an item earlier than the date specified in such 
standards under unusual circumstances. A written justification shall be 
placed in the purchase file.


908.7114  Wiretapping and eavesdropping equipment.

    Acquisition by DOE offices and contractors of devices primarily 
designed to be used surreptitiously to overhear or record conversations 
is prohibited.


908.7115  Forms.

    (a) DOE forms shall be obtained by DOE offices in accordance with 
the DOE Order 1322.2 (See current version). Cost-type contractors shall 
obtain DOE forms through the DOE contracting officer.
    (b) Standard, optional, and certain other agency forms as listed in 
the GSA Supply Catalog will be obtained by DOE offices in accordance 
with (FPMR) 41 CFR 101-26.302.
    (c) Marginally punched continuous forms shall be obtained in 
accordance with (FPMR) 41 CFR 101-26.703.


908.7116  Electronic data processing tape.

    (a) Acquisitions of electronic data processing tape by DOE offices 
shall be in accordance with (FPMR) 41 CFR 101-26.508.
    (b) Acquisitions of electronic data processing tape by authorized 
contractors shall be in accordance with (FPMR) 41 CFR 101-26.508-1. 
However, if adequate justification exists, the Heads of the Contracting 
Activities may authorize contractors to obtain their tape from other 
sources. When such an authorization is granted, a copy of the 
authorization and justification shall be retained in the contract file.


908.7117  Tabulating machine cards.

    DOE offices shall acquire tabulating machine cards in accordance 
with (FPMR) 41 CFR 101-26.509.

PART 915--CONTRACTING BY NEGOTIATION

    7. Subpart 915.5 is revised to read as follows:

Subpart 915.5--Unsolicited Proposals

Sec.
915.502  Policy.
915.503  General.
915.505  Content of unsolicited proposals.
915.506  Agency procedures.
915.507  Contracting methods.


915.502  Policy.

    (a) Present and future needs demand the involvement of all 
resources in exploring alternative energy sources and technologies. To 
achieve this objective, it is DOE policy to encourage external sources 
of unique and innovative methods, approaches, and ideas by stressing 
submission of unsolicited proposals for government support. In 
furtherance of this policy and to ensure the integrity of the 
acquisition process through application of reasonable controls, the 
DOE:
    (1) Disseminates information on areas of broad technical concern 
whose solutions are considered relevant to the accomplishment of DOE's 
assigned mission areas;
    (2) Encourages potential proposers to consult with program 
personnel before expending resources in the development of written 
unsolicited proposals;
    (3) Endeavors to distribute unsolicited proposals to all interested 
organizations within DOE;
    (4) Processes unsolicited proposals in an expeditious manner and, 
where practicable, keep proposers advised as discrete decisions are 
made;
    (5) Assures that each proposal is evaluated in a fair and objective 
manner; and,
    (6) Assures that each proposal will be used only for its intended 
purpose and the information contained therein will not be divulged 
without prior permission of the proposer.
    (b) Extensions of contract work resulting from unsolicited 
proposals shall be processed in accordance with the procedures at 48 
CFR 943.170.


915.503  General.

    (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 herein.


915.505  Content of unsolicited proposals.

    (b)(5) Unsolicited proposals for nonnuclear energy demonstration 
activities not covered by existing formal competitive solicitations or 
program opportunity notices may include a

[[Page 19897]]

request for federal assistance or participation, and shall be subject 
to the cost sharing provisions of 48 CFR 917.70.


915.506  Agency procedures.

    (b) Unless otherwise specified in a notice of program interest, all 
unsolicited proposals should be submitted to the Unsolicited Proposal 
Coordinator, Office of Procurement and Assistance, Washington, DC 
20585. If the proposer has ascertained the cognizant program office 
through preliminary contacts with program staff, the proposal may be 
submitted directly to that office. In such instances, the proposer 
should separately send a copy of the proposal cover letter to the 
unsolicited proposal coordinator to assure that the proposal is logged 
in the Department's automated tracking system for unsolicited 
proposals.


915.507  Contracting methods.

    (d) DOE's cost participation policy, at 48 CFR 917.70, shall be 
followed in determining the extent to which the DOE will participate in 
the cost for the proposed effort.

Subpart 915.6--[Removed]

    8. Subpart 915.6 is removed.
    9. Subsection 915.970-8 is revised to read as follows:


915.970-8  Weighted guidelines application considerations.

    The Department has developed internal procedures to aid the 
contracting officer in the application of weighted guidelines and to 
assure a reasonable degree of uniformity across the Department.

PART 916--TYPES OF CONTRACTS


916.405  [Removed]

    10. Section 916.405 is removed.

PART 917--SPECIAL CONTRACTING METHODS

    11. Subpart 917.70 is revised to read as follows:

Subpart 917.70--Cost Participation

Sec.
917.7000  Scope of subpart.
917.7001  Policy.

Subpart 917.70--Cost Participation.


917.7000  Scope of subpart.

    (a) This subpart sets forth the DOE policy on cost participation by 
organizations performing research, development, and/or demonstration 
projects under DOE prime contracts. This subpart does not cover efforts 
and projects performed for DOE by other Federal agencies.
    (b) Cost participation is a generic term denoting any situation 
where the Government does not fully reimburse the performer for all 
allowable costs necessary to accomplish the project or effort under the 
contract. The term encompasses cost sharing, cost matching, cost 
limitation (direct or indirect), participation in kind, and similar 
concepts.


917.7001  Policy.

    (a) When DOE supports performer research, development, and/or 
demonstration efforts, where the principal purpose is ultimate 
commercialization and utilization of the technologies by the private 
sector, and when there are reasonable expectations that the performer 
will receive present or future economic benefits beyond the instant 
contract as a result of performance of the effort, it is DOE policy to 
obtain cost participation. Full funding may be provided for early 
phases of development programs when the technological problems are 
still great.
    (b) In making the determination to obtain cost participation, and 
evaluating present and future economic benefits to the performer, DOE 
will consider the technical feasibility, projected economic viability, 
societal and political acceptability of commercial application, as well 
as possible effects of other DOE-supported projects in competing 
technologies.
    (c) The propriety, manner, and amount of cost participation must be 
decided on a case-by-case basis.
    (d) Cost participation is required for demonstration projects 
unless exempted by the Under Secretary. Demonstration projects, 
pursuant to this subpart, include demonstrations of technological 
advances and field demonstrations of new methods and procedures, and 
demonstrations of prototype commercial applications for the 
exploration, development, production, transportation, conversion, and 
utilization of energy resources.
    12. Subpart 917.72 is revised to read as follows:

Subpart 917.72--Program Opportunity Notices for Commercial 
Demonstrations

Sec.
917.7200  Scope of subpart.
917.7201  Policy.
917.7201-1  General.

Subpart 917.72--Program Opportunity Notices for Commercial 
Demonstrations


917.7200  Scope of subpart.

    (a) This subpart discusses the policy for the use of a program 
opportunity notice solicitation approach to accelerate the 
demonstration of the technical feasibility and commercial application 
of all potentially beneficial non-nuclear energy sources and 
utilization technologies.
    (b) This subpart applies to demonstrations performed by 
individuals, educational institutions, other commercial or industrial 
organizations, or other private entities, or by public entities, 
including State and local governments, but not other Federal agencies. 
For purposes of this subpart, commercial demonstration projects include 
demonstrations of technological advances, field demonstrations of new 
methods and procedures, and demonstration of prototype commercial 
applications for the exploration, development, production, 
transportation, conversion, and utilization of non-nuclear energy 
resources.


917.7201  Policy.


917.7201-1  General.

    (a) It is DOE's intent to encourage the submission of proposals to 
accelerate the demonstration of the technical, operational, economic, 
and commercial feasibility and environmental acceptability of 
particular energy technologies, systems, subsystems, and components. 
Program opportunity notices will be used to provide information 
concerning scientific and technological areas encompassed by DOE's 
programs. DOE shall, from time to time, issue program opportunity 
notices for proposals for demonstrations of various forms of non-
nuclear energy and technology utilization.
    (b) Each program opportunity notice shall as a minimum describe: 
the goal of the intended demonstration effort; the time schedule for 
award; evaluation criteria; program policy factors; the amount of cost 
detail required; and proposal submission information. Program policy 
factors are those factors which, while not appropriate indicators of a 
proposal's individual merit (i.e., technical excellence, proposer's 
ability, cost, etc.), are relevant and essential to the process of 
choosing which of the proposals received will, taken together, best 
achieve the program objectives. All such factors shall be predetermined 
and specified in the notice so as to notify proposers that factors 
which are

[[Page 19898]]

essentially beyond their control will affect the selection process.
    13. Subpart 917.73 is revised to read as follows:

Subpart 917.73--Program Research and Development Announcements

Sec.
917.7300  Scope of subpart.
917.7301  Policy.
917.7301-1  General.

Subpart 917.73--Program Research and Development Announcements


917.7300  Scope of subpart.

    (a) This subpart discusses the policy for the use of a program 
research and development announcement (PRDA) solicitation approach to 
obtain and select proposals from the private sector for the conduct of 
research, development, and related activities in the energy field.


917.7301  Policy


917.7301-1  General

    (a) PRDAs shall be used to provide potential proposers with 
information concerning DOE's interest in entering into arrangements for 
research, development, and related projects in specified areas of 
interest. It is DOE's intent to solicit the submission of ideas which 
will serve as a basis for research, development, and related activities 
in the energy field. It is DOE's desire to encourage the involvement of 
small business concerns, small disadvantage business concerns, and 
women-owned small business concerns in research and development 
undertaken pursuant to PRDAs.
    (b) The PRDA should not replace existing acquisition procedures 
where a requirement can be sufficiently defined for solicitation under 
standard advertised or negotiated acquisition procedures. Similarly, it 
should not inhibit or curtail the submission of unsolicited proposals. 
However, a proposal which is submitted as though it were unsolicited 
but is in fact germane to an existing PRDA shall be treated as though 
submitted in response to the announcement or returned without action to 
the proposer, at the proposer's option. Further, the PRDA is not to be 
used in a competitive situation where it is appropriate to negotiate a 
study contract to obtain analysis and recommendations to be 
incorporated in the subsequent request for proposals.
    (c) The PRDA is to be used only where:
    (1) Research and development is required in support of a specific 
project area within an energy program with the objective of advancing 
the general scientific and technological base, and this objective is 
best achieved through:
    (i) A diversity of possible approaches, within the current state of 
the art, available for solving the problems;
    (ii) The involvement of a broad spectrum of organizations in 
seeking out solutions to the problems posed;
    (iii) The application of the unique qualifications or specialized 
capabilities of many individual proposers which will enable them to 
perform portions of the research project (without necessarily 
possessing the qualifications to perform the entire project) so that 
the overall support may be broken into segments which cannot be 
ascertained in advance; and,
    (iv) The fostering of new and creative solutions.
    (2) Consistent with paragraph (c)(1) of this section, it is 
anticipated that choices will have to be made among dissimilar 
concepts, ideas, or approaches; and
    (3) It is determined that a broad range of organizations exist that 
would be capable of contributing towards the overall research and 
development goals identified in paragraph (c)(1) of this section.
    (d) Each PRDA shall as a minimum describe: the area(s) of program 
interest; time schedule for award; proposal submittal information; 
evaluation criteria; and program policy factors. The PRDA should 
clearly emphasize to proposers that program policy factors are 
essentially beyond their control and will affect the selection process. 
The PRDA should also state that DOE reserves the right to select for 
award or support any, all, or none of the proposals received in 
response to an announcement.
    14. Subpart 917.74 is revised to read as follows:

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

Sec.
917.7401  General.
917.7402  Policy.
917.7403  Application.

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


917.7401  General.

    Special circumstances and situations may arise under cost-type 
contracts when, in the performance of their contract or subcontract, 
the performer shall be required, or otherwise find it necessary, to 
acquire real estate or interests therein by:
    (a) Purchase, on DOE's behalf or in its own name, with title 
eventually vesting in the Government.
    (b) Lease, and DOE assumes liability for, or otherwise will pay for 
the obligation under the lease.
    (c) Acquisition of temporary interest through easement, license or 
permit, and DOE funds the cost of the temporary interest.


917.7402  Policy.

    It is the policy of the Department of Energy that when the real 
estate acquisitions are made, the following policies and procedures 
shall be applied to such acquisitions:
    (a) Real estate acquisitions shall be mission essential; 
effectively, economically, and efficiently managed and utilized; and 
disposed of promptly, when not needed;
    (b) Acquisitions shall be justified, with documentation which 
describes the need for the acquisitions, general requirements, cost, 
acquisition method to be used, site investigation reports, site 
recommended for selection, and property appraisal reports; and
    (c) Acquisition by lease, in addition to the requirements in 
paragraphs (a) and (b) of this section:
    (1) Shall not exceed a one-year term if funded by one-year 
appropriations.
    (2) May exceed a one-year term, when the lease is for special 
purpose space funded by no-year appropriations and approved by the 
Department.
    (3) Shall contain an appropriate cancellation clause which limits 
the Government's obligation to no more than the amount of rent to the 
earliest cancellation date plus a reasonable cancellation payment.
    (4) Shall be consistent with Government laws and regulations 
applicable to real estate management.


917.7403  Application.

    The clause at 48 CFR 952.217-70 shall be included in contracts or 
modifications where contractor acquisitions are expected to be made.


917.75  [Removed]

    15. Subpart 917.75 is removed.


922.805  [Removed]

    16. Section 922.805 is removed.


922.70  [Removed]

    17. Subpart 922.70 is removed.

PART 928--BONDS AND INSURANCE

    18. Subpart 928.1 is revised to read as follows:

Subpart 928.1--Bonds

Sec.
928.101-1  Policy on use.
928.103-3  Payment bonds.
928.103-70  Review of performance and payment bonds for other than 
construction.

[[Page 19899]]

Subpart 928.1--Bonds


928.101-1  Policy on use.

    (a) In addition to the restriction on use of bid guarantees in FAR 
28.101-1(a), a bid guarantee may be required only for fixed price or 
unit price contracts entered into as a result of sealed bidding. They 
may not be required for negotiated contracts.


928.103-3  Payment bonds.

    (a) A determination that is in the best interest of the Government 
to require payment bonds in connection with other than construction 
contracts may be made by the contracting officer on individual 
acquisitions.


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

    A performance or payment bond, other than an annual bond, shall not 
antedate the contract to which it pertains.

PART 932--CONTRACT FINANCING

    19. Section 932.102 is revised to read as follows:


932.102  Description of contract financing methods.

    (e)(2) Progress payments based on a percentage or stage of 
completion may be authorized by the Head of the Contracting Activity 
when a determination is made that progress payments based on costs 
cannot be practically employed and that there are adequate safeguards 
provided for the administration of progress payments based on a 
percentage or stage of completion.


932.7  [Removed]

    20. Subpart 932.7 is removed.


932.802  [Removed]

    21. Section 932.802 is removed.


932.805  [Removed]

    22. Section 932.805 is removed.
    23. Subpart 932.9 is revised to read as follows:

Subpart 932.9--Prompt Payment

Sec.
932.970  Implementing DOE policies and procedures.

Subpart 932.9--Prompt Payment


932.970  Implementing DOE policies and procedures.

    (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.


932.7000  [Removed]

    24. Section 932.7000 is removed.


932.7001  [Removed]

    25. Section 932.7001 is removed.

PART 933--PROTESTS, DISPUTES AND APPEALS

    26. Subpart 933.1 is revised to read as follows:

Subpart 933.1--Protests

Sec.
933.103  Protests to the agency.
933.104  Protests to GAO.
933.105  Protests to GSBCA.
933.106  Solicitation provisions.

Subpart 933.1--Protests


933.103  Protests to the agency.

    (f) If FAR 33.103(f) requires that award be withheld or performance 
be suspended or the awarded contract be terminated pending resolution 
of an agency protest, authority to award and/or continue performance of 
the protested contract may be requested by the Head of the Contracting 
Activity (HCA), concurred in by counsel, and approved by the 
Procurement Executive.
    (i)(1) Protests filed with the contracting officer before or after 
award shall be decided by the Head of the Contracting Activity except 
for the following cases, which shall be decided by the Procurement 
Executive:
    (i) The protester requests that the protest be decided by the 
Procurement Executive.
    (ii) The HCA is the contracting officer of record at the time the 
protest is filed, having signed either the solicitation where the award 
has not been made, or the contract, where the award or nomination of 
the apparent successful offeror has been made.
    (iii) The HCA concludes that one or more of the issues raised in 
the protest have the potential for significant impact on DOE 
acquisition policy.
    (2) Upon receipt of a protest requesting a decision by the 
Procurement Executive, the contracting activity shall immediately 
provide a copy of the protest to the Office of Clearance and Support.
    (j) The Department of Energy encourages direct negotiations between 
an offeror and the contracting officer in an attempt to resolve 
protests. In those situations where the parties are not able to achieve 
resolution, the Department favors the use of alternative dispute 
resolution (ADR) techniques to resolve protests. A protest requesting a 
decision at the Headquarters level shall state whether the protester is 
willing to utilize ADR techniques such as mediation or nonbinding 
evaluation of the protest by a neutral. Upon receipt of a protest 
requesting a decision at the Headquarters level, the Office of 
Clearance and Support will explore with the protester whether the use 
of ADR techniques would be appropriate to resolve the protest. Both 
parties must agree that the use of such techniques is appropriate. If 
the parties do not mutually agree to utilize ADR to resolve the 
protest, the protest will be processed in accordance with the 
procedures set forth in paragraph (k).
    (k) Upon receipt of a protest lodged with the Department, the 
contracting officer shall prepare a report similar to that discussed in 
FAR 33.104(a)(3)(iii). In the case of a protest filed at the 
Headquarters level, the report shall be forwarded to the Office of 
Clearance and Support within 21 calendar days of being notified of such 
a protest with a proposed response to the protest. The Procurement 
Executive (for protests at the Headquarters level or those specific HCA 
protests cited in paragraph (d)(2) of this section) or an HCA (for 
protests

[[Page 19900]]

at the contracting activity level) will render a decision on a protest 
within 35 calendar days, unless a longer period of time is determined 
to be needed.


933.104  Protests to GAO.

    (a)(2) The contracting officer shall provide the notice of protest.
    (b) Protests before award. (1) When the Department has received 
notice from the GAO of a protest filed directly with the GAO, a 
contract may not be awarded until the matter is resolved, unless 
authorized by the Head of the Contracting Activity in accordance with 
FAR 33.104(b). Before the Head of the Contracting Activity authorizes 
the award, the required finding shall be concurred in by the DOE 
counsel handling the protest, endorsed by the Senior Program Official, 
and approved by the Procurement Executive. The finding shall address 
the likelihood that the protest will be sustained by the GAO.
    (c) Protests after award. Before the Head of the Contracting 
Activity authorizes the award, the finding required by FAR 33.104(c)(2) 
shall be concurred in by the DOE counsel handling the protest, endorsed 
by the Senior Program Official, and approved by the Procurement 
Executive.
    (g) Notice to GAO. (1) The report to the GAO regarding a decision 
not to comply with the GAO's recommendation, discussed at FAR 
33.104(f), shall be provided by the HCA making the award, after 
approval of the Procurement Executive. If a DOE-wide policy issue is 
involved, the report shall be provided by the Procurement Executive.
    (2) It is the policy of the Department to comply promptly with 
recommendations set forth in Comptroller General Decisions except for 
compelling reasons.
    (3) The GAO does not have jurisdiction to consider subcontractor 
protests.


933.105  Protests to GSBCA.

    (a)(1)(i) The GSBCA does not have jurisdiction to consider 
subcontractor protests.
    (d)(2) The determinations and findings required by FAR 33.105(d)(2) 
shall be executed by the HCA.
    (4) If the GSBCA suspends the procurement authority to acquire any 
goods or services not previously delivered and accepted under an 
awarded contract, the contracting officer shall invoke the clause at 
FAR 52.233-3, ``Protest After Award,'' to cause the contractor to cease 
performance and to suspend related activities that may result in 
additional obligations being incurred by the Government.


933.106  Solicitation provisions.

    (a) The contracting officer shall supplement the provision at FAR 
52.233-2, Service of Protest, in solicitations for other than 
simplified acquisitions by adding the provision at 48 CFR 952.233-2.
    (b) The contracting officer shall include the provision at 48 CFR 
952.233-4 in solicitations for purchases above the simplified 
acquisition threshold.
    (c) The contracting officer shall include the provision at 48 CFR 
952.233-5 in solicitations for purchases above the simplified 
acquisition threshold.

PART 935--RESEARCH AND DEVELOPMENT CONTRACTING

    27. Subsections 935.016-3 through 935.016-7 and 935.016-9 are 
removed, and section 935.016 and subsections 935.016-1, 935.016-2 and 
935.016-8 are revised to read as follows:


935.016  Research opportunity announcements.


935.016-1  Scope.

    (a) FAR 35.016 sets forth the policies and procedures for 
contracting for research through the use of broad agency announcements 
as authorized by the Competition in Contracting Act of 1984 (CICA) (41 
U.S.C. 259(b)(2)) and Federal Acquisition Regulation (FAR) 6.102(d)(2). 
Within DOE, broad agency announcements, will be designated as Research 
Opportunity Announcements (ROAs).
    (b) Research Opportunity Announcements are a form of competitive 
solicitation under which DOE's broad mission and program-level research 
objectives are defined; proposals which offer meritorious approaches to 
those objectives are requested from all offerors capable of satisfying 
the Government's needs; those proposals are evaluated by scientific or 
peer review against stated specific evaluation criteria; and selection 
of proposals for possible contract award is based upon that evaluation, 
the importance of the research to the program objectives, and funds 
availability.


935.016-2  Applicability.

    (a) This section applies to all DOE Headquarters and field program 
organizations which, by virtue of their statutorily mandated mission or 
other such authority as may exist, support energy or energy-related 
research activities through contractual relationships.
    (1) The ROA may be used as a competitive solicitation procedure 
through which DOE acquires basic and applied research in support of its 
broad mission and program-level research objectives, and these 
objectives may be best achieved through relationships where contractors 
pursue diverse and dissimilar solutions and approaches to scientific 
and technological areas related to DOE's missions and programs.
    (2) The ROA shall not be used as a solicitation method when one or 
more of the following conditions exist:
    (i) In accordance with the Federal Grant and Cooperative Agreement 
Act, Public Law 97-258, the principal purpose of the relationship will 
be assistance;
    (ii) The purpose of the research is to accelerate the demonstration 
of the technical, operational, economic, or commercial feasibility and 
environmental acceptability of particular energy technologies, systems, 
subsystems, and components that would appropriately be acquired by 
Program Opportunity Notices (PONs) in accordance with 48 CFR 917.72;
    (iii) The research is required in support of a specific project 
area within an energy program which appropriately would be acquired by 
Program Research and Development Announcements (PRDAs) in accordance 
with 48 CFR 917.73;
    (iv) The research requirements can be sufficiently defined to allow 
the use of contracting by negotiation in accordance with FAR part 15;
    (v) The purpose of the research is the acquisition of goods and 
services related to the development of a specific system or hardware 
acquisition; or,
    (vi) Any funds to be obligated to a resulting contract will be used 
to conduct or support a conference or training activity.
    (b) The following limitations are applicable to the use of ROAs:
    (1) The use of broad agency announcements for the acquisition of 
that part of development not related to the development of a specific 
system or hardware is authorized by FAR 35.016(a). Notwithstanding that 
authorization, ROAs shall be used within DOE only to acquire basic and 
applied research.
    (2) Proposals shall not be solicited from, and contracts shall not 
be awarded to, any specific entity which operates a Government-owned or 
-controlled research, development, special production, or testing 
establishment, such as DOE's management and operating contractor

[[Page 19901]]

facilities, Federally Funded Research and Development Centers chartered 
by other agencies, or other such entities. This limitation shall not be 
used to preclude the parent organization of the entity operating the 
Government-owned or -controlled facility, its subsidiaries, other 
divisions, or other related business affiliates from proposing, or 
receiving awards, under DOE's ROA solicitations, provided that any 
proposed resources (personnel, facilities, and other resources) used in 
the management and operation of the Government-owned or -controlled 
facility have been approved for use in the ROA effort by the sponsoring 
agency.


935.016-8  Selection of proposals.

    (a) After considering the evaluation findings, the importance of 
the proposed research to the program objectives, and funds 
availability, the Selection Official shall determine whether a specific 
proposal warrants selection for negotiation and award of a contract. 
The decision of the Selection Official shall be documented in writing 
and shall address, as appropriate, such issues as:
    (1) The scientific and technical merit of the proposal in relation 
to the ROA evaluation criteria;
    (2) The qualifications, capabilities, and experience of the 
proposed personnel; technical approach; facilities; and where 
applicable, cost participation by the offeror (or any combination of 
the above);
    (3) The importance of the proposed research to the program 
objectives;
    (4) Which areas of the proposal, whether in whole or in part, have 
been selected for funding, and the amount of that funding; and,
    (5) Assurances that any other requirements which are imposed by 
statute, regulation, or internal directives relating to the specific 
research activities and which are properly the responsibility of the 
program office have been satisfied.
    (b) Absent extenuating circumstances, selection decisions regarding 
any individual proposal should be made within six (6) months after 
receipt of the proposal. Proposals which have been evaluated may be 
accumulated to allow for a consolidated selection decision so long as 
not more than six (6) months have passed since the receipt of any of 
the proposals so accumulated.
    (c) The cognizant DOE program official shall notify successful and 
unsuccessful offerors of any selection/non-selection decisions. These 
notices shall be made in writing promptly after the decision is made, 
and shall, at a minimum, state in general terms, the basis for the 
determination.

PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS


936.601 through 936.602-4   [Removed]

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


936.603 through 936.606   [Removed]

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


936.72   [Removed]

    30. Subpart 936.72 is removed.
    31. Part 941 is added at the end of Subchapter F as follows:

PART 941--ACQUISITION OF UTILITY SERVICES

Subpart 941.2--Acquiring Utility Services.

Sec.
941.201-70  DOE Directives.
941.201-71  Use of subcontracts.

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

Subpart 941.2--Acquiring Utility Services


941.201-70   DOE Directives.

    Utility services (defined at FAR 41.101) shall be acquired in 
accordance with FAR part 41 and DOE Directives in subseries 4540 
(Public Services).


941.201-71   Use of subcontracts.

    Utility services for the furnishing of electricity, gas (natural or 
manufactured), steam, water and/or sewerage at facilities owned or 
leased by DOE shall not be acquired under a subcontract arrangement, 
except as provided for at 48 CFR 970.0803 or if the prime contract is 
with a utility company.

PART 942--CONTRACT ADMINISTRATION

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


942.705-1   Contracting officer determination procedure.

    (a)(3) The Department of Energy shall use the contracting officer 
determination procedure for all business units for which it shall be 
required to negotiate final indirect cost rates. A list of such 
business units is maintained by the Office of Policy, within the 
Headquarters procurement organization.
    (b)(1) Pursuant to FAR 52.216-7, Allowable Cost and Payment, 
contractors shall be requested to submit their final indirect cost rate 
proposals reflecting actual cost experience during the covered period 
to the cognizant contracting officer responsible for negotiating their 
final rates. The DOE negotiating official shall request all needed 
audit service in accordance with internal procedures.
    33. Subsection 942.705-3 is revised to read as follows:


942.705-3   Educational institutions.

    (a)(2) The negotiated rates established for the institutions cited 
in OMB circular No. A-88 are distributed to the Cognizant DOE Office 
(CDO) assigned lead office responsibility for all DOE indirect cost 
matters relating to a particular contractor by the Office of Policy, 
within the Headquarters procurement organization.
    34. Subsection 942.705-4 is revised to read as follows:


942.705-4   State and local governments.

    A list of cognizant agencies for State/local government 
organizations is periodically published in the Federal Register by the 
Office of Management and Budget (OMB). The responsible agencies are 
notified of such assignments. The current negotiated rates for State/
local government activities is distributed to each CDO by the Office of 
Policy, within the Headquarters procurement organization.
    35. Subsection 942.705-5 is revised to read as follows:


942.705-5   Nonprofit organizations other than educational and state 
and local governments.

    OMB Circular A-122 establishes the rules for assigning cognizant 
agencies for the negotiation and approval of indirect cost rates. The 
Federal agency with the largest dollar value of awards (contracts plus 
federal financial assistance dollars) will be designated as the 
cognizant agency. There is no published list of assigned agencies. The 
Office of Policy, within the Headquarters procurement organization, 
distributes to each CDO the rates established by the cognizant agency.


942.70   [Removed]

    36.37. Subpart 942.70 is removed.

PART 945--GOVERNMENT PROPERTY


945.505-5   [Removed]

    38. Subsection 945.505-5 is removed.


945.505-14   [Removed]

    39. Subsection 945.505-14 is removed.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


952.214   [Removed]

    40. Section 952.214 is removed.

[[Page 19902]]

952.215   [Removed]

    41. Section 952.215 and subsections 952.215-22 and 952.215-23 are 
removed.
    42. Subsection 952.233-2 is revised to read as follows:


952.233-2   Service of protest.

    As prescribed in 48 CFR 933.106(a), add the following to the end of 
the clause at FAR 52.233-2:

    (c) Another copy of a protest filed with the General Accounting 
Office or the General Services Administration Board of Contract 
Appeals shall be furnished to the following address within the time 
periods described in paragraph (b) of this clause: U.S. Department 
of Energy, Assistant General Counsel for Procurement and Financial 
Assistance (GC-61), 1000 Independence Avenue, SW., Washington, DC 
20585, Fax: (202) 586-4546.

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


952.233-4   Notice of protest file availability.

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

NOTICE OF PROTEST FILE AVAILABILITY (XXX)

    (a) If a protest of this procurement is filed with the General 
Accounting Office (GAO) in accordance with 4 CFR part 21, any actual 
or prospective offeror may request the Department of Energy to 
provide it with reasonable access to the protest file pursuant to 
FAR 33.104(a)(3)(ii), implementing section 1065 of Pub.L. 103-355. 
Such request must be in writing and addressed to the contracting 
officer for this procurement.
    (b) Any offeror who submits information or documents to the 
Department for the purpose of competing in this procurement is 
hereby notified that information or documents it submits may be 
included in the protest file that will be available to actual or 
prospective offerors in accordance with the requirements of FAR 
33.104(a)(3)(ii). The Department will be required to make such 
documents available unless they are exempt from disclosure pursuant 
to the Freedom of Information Act. Therefore, offerors should mark 
any documents as to which they would assert that an exemption 
applies. (See 10 CFR part 1004.)

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


952.233-5   Agency protest review.

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

AGENCY PROTEST REVIEW (XXX)

    Protests to the Agency will be decided either at the level of 
the Head of the Contracting Activity or at the Headquarters level. 
The Department of Energy's agency protest procedures, set forth in 
933.103, elaborate on these options and on the availability of a 
suspension of a procurement that is protested to the agency. The 
Department encourages potential protesters to discuss their concerns 
with the contracting officer prior to filing a protest.


952.251-70   [Amended]

    45. Subsection 952.251-70 is amended by revising the date of the 
clause to read ``(June 1995)''.

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

    46. Part 971 is removed.

[FR Doc. 96-10757 Filed 5-2-96; 8:45 am]
BILLING CODE 6450-01-P