[Federal Register Volume 63, Number 235 (Tuesday, December 8, 1998)]
[Proposed Rules]
[Pages 67726-67752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32253]
[[Page 67725]]
_______________________________________________________________________
Part II
Nuclear Regulatory Commission
_______________________________________________________________________
48 CFR Chapter 20
Acquisition Regulation (NRCAR); Proposed Rule
Federal Register / Vol. 63, No. 235 / Tuesday, December 8, 1998 /
Proposed Rules
[[Page 67726]]
NUCLEAR REGULATORY COMMISSION
48 CFR Chapter 20
RIN 3150-AF52
Acquisition Regulation (NRCAR)
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to
amend its regulations governing the procurement of goods and services.
The proposed rule is intended to meet the requirements of Public Law
103-355 (the Federal Acquisition Streamlining Act--FASA) and Public Law
104-106 (the Federal Acquisition Reform Act (FARA), and the Information
Technology Management Reform Act (ITMRA.)) Both public laws modify and
streamline Federal Acquisition Regulation (FAR) requirements. This
proposed rule would eliminate obsolete coverage and make necessary
technical and conforming amendments to the NRCAR. The NRCAR applies to
all contracts including simplified acquisitions where specified and to
modifications that require a justification for other than full and open
competition.
DATES: Comments on the proposed rule must be received on or before
February 22, 1999. Comments received after this date will be considered
if it is practical to do so, but assurance of consideration cannot be
given except as to comments received on or before this date.
ADDRESSES: Submit written comments to: The Secretary of the Commission:
U.S. Nuclear Regulatory Commission; Attention: Rulemakings and
Adjudications Staff; Washington, D.C. 20555. Copies of comments
received may be examined or obtained for a fee at the NRC Public
Document Room, 2120 L Street, NW, Lower Level, Washington, D.C.
(telephone (202) 634-3273). You may also provide comments via the NRC's
interactive rulemaking website through the NRC home page (http://
www.nrc.gov). This site provides the availability to upload comments as
files (any format), if your web browser supports that function. For
information about the interactive rulemaking website, contact Ms. Carol
Gallagher, (301) 415-5906; e-mail [email protected].
FOR FURTHER INFORMATION CONTACT: Timothy F. Hagan, Director, Division
of Contracts and Property Management, Office of Administration, Nuclear
Regulatory Commission, Washington, D.C. 20555. Telephone: (301) 415-
7305.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Nuclear Regulatory Commission Acquisition Regulations
(NRCAR) in 48 CFR Chapter 20 implement and supplement the government-
wide Federal Acquisition Regulation (FAR) and ensure that the policies
governing the procurement of goods and services within the NRC satisfy
the needs of the agency. The NRCAR includes policies, procedures,
solicitation provisions, and contract clauses needed to ensure
effective and efficient evaluation, negotiation, and administration of
procurements.
The NRCAR must now be updated to meet the requirements of Public
Law 103-355 (the Federal Acquisition Streamlining Act--FASA) and Public
Law 104-106 (the Federal Acquisition Reform Act (FARA), and the
Information Technology Management Reform Act (ITMRA.)) Both public laws
modify and streamline FAR requirements. In the process of updating the
NRCAR to comply with FAR acquisition streamlining requirements, the NRC
intends to eliminate obsolete coverage and make necessary technical and
conforming amendments to its policies, procedures, solicitation
provisions, and contract clauses. The NRC expects that any new
reporting burden that would be incurred as a result of these changes
would be offset by elimination of other reporting requirement burdens
specific to this agency (e.g., pre-award proposal preparation
requirements).
Summary of Changes
1. Part 2002--Definitions--This Part would be amended to add
language designating Task and Delivery Order Ombudsman in accordance
with FASA requirements.
2. Part 2003--Improper business practices and personal conflicts of
interest--This Part would be amended to cite the Office of Government
Ethics (OGE) regulations covering standards of conduct for federal
employees rather than the NRC's regulation in this area. The OGE
regulations were published at 61 FR 66830-66851 (December 18, 1996) and
took effect on January 17, 1997. The OGE regulations supersede the NRC
standards of conduct regulations which were previously found in 10 CFR
Part 0. Standards of conduct and requirements for financial disclosure
are now published in 5 CFR Parts 2635, 5801 and 2634 respectively. 10
CFR Part 0 has been eliminated.
3. Part 2009--Contractor Qualifications--This Part would be amended
at Sec. 2009.1 ``Responsible prospective contractors''. The language
under Sec. 2009.100 would be simplified to enhance understanding of the
NRC's policy covering award of contracts to former NRC employees and
award of contracts to firms which employ former NRC employees. The
language would also clarify which procurement actions are considered
noncompetitive for the purposes of this policy.
a. The NRC requires information provided under Sec. 2052.209-70
``Current/Former Agency Employee Involvement'' to ensure that conflict
of interests are avoided and fairness is maintained during the
selection process. Section 2052.209-71 ``Contractor Organizational
Conflicts of Interest (representation)'' is required by statute (42
U.S.C. Sec. 2221, Sec. 170A of the Atomic Energy Act of 1954, as
amended). The Certification requirement of both sections, which
required a high level review within a contractor's organization, would
be downgraded to a Representation requirement. This action is intended
to lessen a contractor's reporting burden pursuant to Section 4301 of
PL 109-106 (FARA).
4. Part 2009.5--Organizational Conflicts of Interest--This Part
would be amended to bring the definition of ``Subcontractor'' found in
Sec. 2009.570-2 into conformance with Section 170A of the Atomic Energy
Act.
5. Part 2010--Specifications, Standards, and Other Purchase
Descriptions--This Part, as well as Sec. 2010.004--Brand name products
or equal, would be deleted in their entirety. FAR Part 10 is now
devoted to Market Research. Guidance on the use of brand name products
is now found under FAR Part 11. FAR Subpart 11.104 describes brand name
product as ``Items peculiar to one manufacturer.'' The FAR now allows
some flexibility in acquiring brand name products which is not evident
in the current NRCAR prescription and clause (Sec. 2052.210-70). Some
restriction on ordering brand name products is evident in FAR 6.302-1
which requires a sole source justification for such purchases. Also,
the basis for not providing for maximum practicable competition must
now be documented in the file when the acquisition is awarded using
simplified acquisition procedures.
6. Part 2015--Contracting By Negotiation--This Part would be
amended in keeping with changes made under the NRC's Procurement
Reinvention Laboratory. Sections 2015.209-70(b) and Sec. 2052.215-75
encourage the contracting officer to ask Offerors to submit technical
and management proposals either by an oral
[[Page 67727]]
presentation or by a written document. Section 2015.209-70(b) further
clarifies that proposal preparation instructions be tailored to assure
that all sections of the instructions reflect a one-to-one relationship
to the evaluation criteria. Section 2015.304 would allow the
contracting officer flexibility in selection evaluation procedures/
criteria (e.g., weighted criteria or evaluations based upon non-
weighted narrative evaluations) which are appropriate to the type of
solicitation and requirement. Section 2015.304 would also encourage the
contracting officer to use a minimum number of evaluation factors by
referencing FAR Sec. 15.304(b). This section of the FAR emphasizes that
evaluation factors and significant subfactors must represent key areas
of importance and emphasis to be considered in the source selection
decision.
7. Part 2016--Types of Contracts--This Part would be amended to
allow the CO the flexibility to negotiate ceiling rates for indirect
costs and to streamline the task order technical proposal language.
8. Part 2032--Contract Financing--Sec. 2032.4--This Part would be
amended to bring its language in line with FAR Part 32.4 which covers
advance payments for non-commercial items.
9. Part 2025--Foreign Acquisition--This Part would be deleted in
its entirety due to a regulatory change in FAR Part 2025. The NRCAR
previously required the contracting officer to approve a written
determination not to acquire US-produced supplies for public use. The
Head of the Contracting Activity (HCA) was required to approved such a
determination for acquisitions which exeeded $1 million. FAR
Sec. 25.102 has since been revised to give the contracting officer some
flexibility in making the nonavailability of US-produced supplies
determination. FAR Sec. 25.102 has done this by eliminating the
requirement and dollar threshold for HCA approval of the contracting
officer's determination, and stating that the HCA may (vice ``must''
under previous FAR language) make a nonavilability determination for
any circumstance other than what was considered by the contracting
officer. Due to this regulatory change, NRCAR coverage of foreign
acquisitions is no longer needed.
10. Part 2033--Protests, Disputes and Appeals--This Part would be
amended to clarify agency procedures for responding to agency protests
and for handling disputes and appeals pursuant to the Contracts Dispute
Act. This Part would be amended to update the address for the U.S.
Department of Energy Board of Contract Appeals.
11. Part 2035 Research and Development Contracting--This Part would
be amended to give the contracting officer flexibility to choose the
evaluation criteria which will be used to select contractors under
Broad Agency Announcements.
Administrative Procedure Act
Section 553 of the Administrative Procedure Act (5 U.S.C. 551 et
seq.) exempts rules relating to public contracts from the prior notice
and comment procedure normally required for informal rulemaking.
However, the Office of Federal Procurement Policy (OFPP), Office of
Management and Budget, has established procedures to be used by all
Federal agencies in the promulgation of procurement regulations. OFPP
Policy Letter 83-2 states that an agency must provide an opportunity
for public comment before adopting procurement regulation if the
regulation is ``significant.'' ``Significant'' is defined generally as
something which has an effect beyond the internal operating procedures
of the agency or has a cost or administrative impact on contractors.
The NRC has determined that this rule is not significant within the
meaning of OFPP Policy Letter No. 83-2. This regulation is issued
principally to combine previously cleared procedures into one document,
to exercise delegations established by the FAR, and to adopt other
procedures that will not have a cost or administrative impact on
contractors.
While not required to do so under the terms of the OFPP Policy
Letter 83-2, the NRC is issuing the revised NRC Acquisition Regulation
(NRCAR) as a proposed rule. The NRC is accepting comments on this
regulation for 75 days after the date of publication. The NRC will
review all comments and will consider changes to the rule, as proposed,
as a result of comments received.
Environmental Impact: Categorical Exclusion
The NRC has determined that this proposed regulation is the type of
action described in the categorical exclusion set forth in 10 CFR
51.22(c)(5). Therefore, neither an environmental impact statement nor
an environmental assessment is required for this proposed rule.
Paperwork Reduction Act Statement
This proposed rule amends information collection requirements that
are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.). This rule has been submitted to the Office of Management and
Budget for review and approval of the paperwork requirements.
Because the proposed rule will reduce existing information
collection requirements, the public burden for this information
collection is expected to be decreased by 3.2 hours per potential
contractor. This reduction includes the time required for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed and completing and reviewing the
information collection. The U.S. Nuclear Regulatory Commission is
seeking public comment on the potential impact of the information
collections contained in the proposed rule and on the following issues.
1. Is the proposed information collection necessary for the proper
performance of the functions of the NRC, including whether the
information will have practical utility?
2. Is the estimate of burden accurate?
3. Is there a way to enhance the quality, utility, and clarity of
the information to be collected?
4. How can the burden of the information collection be minimized,
including the use of automated collection techniques or other forms of
information technology?
Send comments on any aspect of this proposed information
collection, including suggestions for further reducing the burden, to
the Records Management Branch (T6 F-33), U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, or by Internet electronic mail
at [email protected]; and to the Desk Officer, Office of Information and
Regulatory Affairs, NEOB-10202, (3150-0169), Office of Management and
Budget, Washington, DC 20503.
Comments to OMB on the information collections or on the above
issues should be submitted by January 7, 1999. Comments received after
this date will be considered if it is practical to do so, but assurance
of consideration cannot be given to comments received after this date.
Public Protection Notification
If an information collection does not display a currently valid OMB
control number, the NRC may not conduct or sponsor, and a person is not
required to respond to, the information collection.
Regulatory Analysis
This proposed rule would amend the procedures and requirements
necessary to implement and supplement the FAR. The proposed rule
presents
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amendments to the regulations necessary to ensure that the regulations
governing the procurement of goods and services within the NRC
satisfies the particular needs and requirements of the NRC. This
proposed rule constitutes an administrative action governing the
procurement activities of the NRC. These provisions would not have an
adverse economic impact on any contractor or potential contractor
because they merely supplement the requirements applicable to the
acquisition of goods and services by the agency. By clearly and
explicitly implementing the FAR and presenting those additional
provisions necessary to reflect the needs of the NRC, the proposed rule
would allow a contractor or potential contractor to understand more
clearly the regulations to be used in soliciting, evaluating and
awarding contracts for the provision of goods and services. This
constitutes the regulatory analysis for this proposed rule.
Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this proposed rule, if adopted,
will not have a significant economic impact on a substantial number of
small entities. The proposed rule would amend the procedures and
requirements necessary to implement and supplement the FAR which govern
the acquisition of goods and services by the NRC. To the extent that
the proposed rule affects a small entity, it sets out provisions
applicable to small business, disadvantaged business, and women-owned
business concerns.
Backfit Analysis
The NRC has determined that a backfit analysis is not required for
this proposed rule because it does not involve any provision which
would impose backfits as defined in 10 CFR 50.109(a)(1).
List of Subjects
48 CFR Parts 2001, 2002, 2003, 2004, and 2005
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations.
48 CFR Part 2009
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations, Reporting and record-keeping requirements.
48 CFR Parts 2011 and 2013
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations.
48 CFR Parts 2014 and 2015
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations, Reporting and record-keeping requirements.
48 CFR Parts 2016 and 2017
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations.
48 CFR Part 2019
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations, Reporting and record-keeping requirements.
48 CFR Parts 2022 and 2024
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations.
48 CFR Part 2027
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations, Reporting and record-keeping requirements.
48 CFR Parts 2030, 2031, 2032, 2033, and 2035
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations.
48 CFR Part 2042
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations, Reporting and record-keeping requirements.
48 CFR Part 2045
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations Reporting and record-keeping requirements.
48 CFR Part 2052
Government procurement, Nuclear Regulatory Commission Acquisition
Regulations, Reporting and record-keeping requirements.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act of 1974, as amended, 5 U.S.C. 553, and FAR Subpart 1.3, the NRC is
proposing to revise Chapter 20 to Title 48 of the Code of Federal
Regulations in its entirety to read as follows:
CHAPTER 20--NUCLEAR REGULATORY COMMISSION
SUBCHAPTER A--GENERAL
PART 2001--NUCLEAR REGULATORY COMMISSION ACQUISITION REGULATION
SYSTEM
Subpart 2001.1--Purpose, Authority, Issuance
Sec.
2001.101 Purpose.
2001.102 Authority.
2001.103 Applicability.
2001.104 Issuance.
2001.104-1 Publication and code arrangement.
2001.104-2 Arrangement of the regulations.
2001.104-3 Copies.
2001.105 Information collection requirements: OMB approval.
Subpart 2001.3--Agency Acquisition Regulations
2001.301 Policy.
2001.303 Public participation.
Subpart 2001.4--Deviations From the FAR and the NRCAR
2001.402 Policy.
2001.403 Individual deviations.
2001.404 Class deviations.
Subpart 2001.6--Contracting Authority and Responsibilities
2001.600-70 Scope of subpart.
2001.601 General.
2001.602-3 Ratification of unauthorized commitments.
2001.603 Selection, appointment, and termination of appointment.
Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201);
Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841; 41 U.S.C.
418(b)).
Subpart 2001.1--Purpose, Authority, Issuance
2001.101 Purpose.
This subpart establishes Chapter 20, the Nuclear Regulatory
Commission Acquisition Regulation (NRCAR), and provides for the
codification and publication of uniform policies and procedures for
acquisitions by the NRC. The NRCAR is not, by itself, a complete
document. It must be used in conjunction with the Federal Acquisition
Regulation (FAR) (48 CFR Chapter 1).
2001.102 Authority.
The NRCAR and the amendments to it are issued by the Senior
Procurement Executive under a delegation from the Executive Director
for Operations dated May 16, 1997, in accordance with the authority of
the Atomic Energy Act of 1954, as amended (42. U.S.C. 161), the Energy
Reorganization Act of 1974 (42 U.S.C. 5841, 5872), the Federal Property
and Administrative Services Act of 1949
[[Page 67729]]
(40 U.S.C. 486(c)), as amended, FAR Subpart 1.3, and other applicable
law.
2001.103 Applicability.
The FAR and NRCAR apply to all NRC acquisitions of supplies and
services which obligate appropriated funds, except as exempted by
Sections 31 and 161 of the Atomic Energy Act of 1954 as amended, and
Section 205 of the Energy Reorganization Act of 1974 as amended. For
procurements made from nonappropriated funds, the Director, Division of
Contracts and Property Management, shall determine the rules and
procedures that apply.
2001.104 Issuance.
2001.104-1 Publication and code arrangement.
(a) The NRCAR and its subsequent changes are:
(1) Published in the daily issue of the Federal Register; and
(2) Codified in the Code of Federal Regulations (CFR).
(b) The NRCAR is issued as 48 CFR Chapter 20.
2001.104-2 Arrangement of the regulations.
(a) General. Chapter 20 is divided into parts, subparts, sections,
subsections, paragraphs, and further subdivisions as necessary.
(b) Numbering. The numbering system and part, subpart and section
titles used in this Chapter 20 conform with those used in the FAR as
follows:
(1) Where Chapter 20 implements the FAR or supplements a parallel
part, subpart, section, subsection, or paragraph of the FAR, that
implementation or supplementation is numbered and captioned to the FAR
part, subpart, section, or subsection being implemented or
supplemented, except that the implementation or supplementation is
preceded with a 20 or 200 so that there will always be four numbers to
the left of the decimal. For example, NRC's implementation of FAR
1.104-1 is shown as 2001.104-1 and the NRC's implementation of FAR 24.1
is shown as 2024.1.
(2) When NRC supplements material contained in the FAR, it is given
a unique number containing the numerals ``70'' or higher. The rest of
the number parallels the FAR part, subpart, section, subsection, or
paragraph it is supplementing. For example, Section 170A of the Atomic
Energy Act of 1954, as amended, requires a more comprehensive
organizational conflict of interest review for NRC than is contemplated
by FAR 9.5. This supplementary material is identified as 2009.570.
(3) Where material in the FAR requires no implementation or
supplementation, there is no corresponding numbering in the NRCAR.
Therefore, there may be gaps in the NRCAR sequence of numbers where the
FAR requires no further implementation.
(c) Citation. The NRCAR will be cited in accordance with Federal
Register Standards approved for the FAR. Thus, this section when
referred to in the NRCAR is cited as 2001.104-2(c). When this section
is referred to formally in official documents, such as legal briefs, it
should be cited as ``48 CFR 2001.104-2(c).'' Any section of the NRCAR
may be formally identified by the section number, e.g., ``NRCAR
2001.104-2.'' In the NRCAR, any reference to the FAR will be indicated
by ``FAR'' followed by the section number, for example FAR 1-104.
2001.104-3 Copies.
Copies of the NRCAR in Federal Register and CFR form may be
purchased from the Superintendent of Documents, Government Printing
Office, Washington, DC 20402.
2001.105 Information collection requirements: OMB approval.
(a) The Nuclear Regulatory Commission has submitted the information
collection requirements contained in this part to the Office of
Management and Budget (OMB) for approval as required by the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
OMB has approved the information collection requirements contained in
this part under control number 3150-0169.
(b) The information collection requirements contained in this part
appear in sections 2009.570-3, 2009.570-5, 2009.570-8, 2014.201-670,
2027.305-3, 2042.570-1, 2042.803, 2045.371, 2052.204-70, 2052.204-71,
2052.209-70, 2052.209-71, 2052.209-72, 2052.211-70, 2052.211-71,
2052.211-72, 2052.211-72 Alternate 1, 2052.214-71, 2052.214-72,
2052.214-74, 2052.215-70, 2052.215-71, 2052.215-74, 2052.215-75,
2052.215-75 Alternate 1, 2052.215-75 Alternate 2, 2052.215-78,
2052.216-72, 2052.227-70, 2052.235-70, 2052.235-71, 2052.242-70, and
2052.242-71.
(c) This part contains information collection requirements in
addition to those approved under the control number specified in
paragraph (a) of this section. These information collection
requirements and control numbers under which they are approved are as
follows:
(1) In 2052.215-77(a) and 2052.215-78(b), NRC Form 445 is approved
under control number 3150 **to be assigned**.
(2) [Reserved]
Subpart 2001.3--Agency Acquisition Regulations
2001.301 Policy.
Policy, procedures, and guidance of an internal nature will be
promulgated through internal NRC issuances such as Management
Directives or Division of Contracts and Property Management
Instructions.
2001.303 Public participation.
FAR 1.301 and Section 22 of the Office of Federal Procurement
Policy Act, as amended (41 U.S.C. 418b) require rulemaking for
substantive acquisition rules, but allow discretion in the matter for
other than significant issues meeting the stated criteria. Accordingly,
the NRCAR has been promulgated and may be revised from time to time in
accordance with FAR 1.301. This procedure for significant subject
matter generally involves issuing a notice of proposed rulemaking,
inviting public comment, review and analysis of comments received, and
publication of a final rule. The final rule includes a discussion of
the public comments received and describes any changes made as a result
of the comments.
Subpart 2001.4--Deviations From the FAR and the NRCAR
2001.402 Policy.
(a) Deviations from the provisions of the FAR or NRCAR may be
granted as specified in this subpart when necessary to meet the
specific needs of the requesting office. The development and testing of
new techniques and methods of acquisition should not be discouraged
simply because such action would require a FAR or NRCAR deviation.
(b) Requests for authority to deviate from the provisions of the
FAR or the NRCAR must be signed by the requesting office and submitted
to the Director, Division of Contracts and Property Management, in
writing as far in advance as possible. Each request for deviation must
contain the following:
(1) A statement of the deviation desired, including identification
of the specific paragraph number(s) of the FAR or NRCAR from which a
deviation is requested;
[[Page 67730]]
(2) The reason why the deviation is considered necessary or would
be in the best interest of the Government;
(3) If applicable, the name of the contractor and identification of
the contract affected;
(4) A description of the intended effect of the deviation;
(5) A statement of the period of time for which the deviation is
needed; and
(6) Any pertinent background information which will contribute to a
full understanding of the desired deviation.
2001.403 Individual deviations.
In individual cases, deviations from either the FAR or the NRCAR
will be authorized only when essential to effect only one contracting
action or where special circumstances make the deviations clearly in
the best interest of the Government. Individual deviations must be
authorized in advance by the Director, Division of Contracts and
Property Management.
2001.404 Class deviations.
Class deviations affect more than one contracting action. Where
deviations from the FAR or NRCAR are considered necessary for classes
of contracts, requests for authority to deviate must be submitted in
writing to the Director, Division of Contracts and Property Management,
who will consider the submission jointly with the Chairperson of the
Civilian Agency Acquisition Council, as appropriate.
Subpart 2001.6--Contracting Authority and Responsibilities
2001.600-70 Scope of subpart.
This subpart deals with the placement of contracting authority and
responsibility within the agency, the selection and designation of
contracting officers, and the authority of contracting officers.
2001.601 General.
(a) Contracting authority vests in the Chairman. The Chairman has
delegated this authority to the Executive Director for Operations
(EDO). The EDO has delegated this authority to the Deputy Executive
Director for Management Services (DEDM). The DEDM has delegated this
authority to the Director, Office of Administration (ADM). The
Director, ADM, has delegated the authority to the Director, Division of
Contracts and Property Management, who, in turn, makes contracting
officer appointments within the Headquarters and the Regional Offices.
All of the above delegations are formal written delegations containing
dollar limitations and conditions.
(b) The Director, Division of Contracts Division of Contracts and
Property Management, establishes contracting policy throughout the
agency; monitors the overall effectiveness and efficiency of the
agency's contracting office; establishes controls to assure compliance
with laws, regulations, and procedures; and delegates contracting
officer authority.
2001.602-3 Ratification of unauthorized commitments.
(a) The Government is not bound by agreements or contractual
commitments made to prospective contractors by persons to whom
contracting authority has not been delegated. Any unauthorized
commitment may be in violation of the Federal Property and
Administrative Services Act, other Federal laws, the FAR, the NRCAR,
and good acquisition practice. Certain requirements of law and
regulation necessary for the proper establishment of a contractual
obligation may not be met under an unauthorized commitment; for
example, the certification of the availability of funds, justification
for other than full and open competition, competition of sources,
determination of contractor responsibility, certification of current
pricing data, price/cost analysis, administrative approvals, and
negotiation of appropriate contract clauses.
(b) The execution of otherwise proper contracts made by individuals
without contracting authority, or by contracting officers in excess of
the limits of their delegated authority, may later be ratified. To be
effective, the ratification must be in the form of a written
procurement document clearly stating that ratification of a previously
unauthorized commitment is intended. All ratifications of procurement
actions valued at $2,500 or less may be approved by the appropriate
regional administrator or Headquarters contracting officer. For any
such action, all other terms of Subpart 2001.6 are applicable. The
Competition Advocate shall approve all ratification actions exceeding
$2,500 subsequent to the review and approval recommendation by the
Director, Division of Contracts and Property Management.
(c) Requests received by contracting officers for ratification of
commitments made by personnel lacking contracting authority must be
processed as follows:
(1) The Designating Official, responsible for the office request,
shall furnish the contracting officer all records and documents
concerning the commitment and a complete written statement of facts,
including, but not limited to:
(i) A written statement consistent with the complexity and size of
the action as to why the contracting office was not used including the
name of the employee who made the commitment;
(ii) A statement as to why the proposed contractor was selected;
(iii) A list of other sources considered;
(iv) A description of work performed, or to be performed, or
products to be furnished;
(v) The estimated or agreed upon contract price;
(vi) A certification of the appropriated funds available;
(vii) A description of how unauthorized commitments in similar
circumstances will be avoided in the future.
(2) The contracting officer shall review the written statement of
facts for a determination of approval of all actions valued at $2,500
or less. For actions greater than $2,500, the contracting officer shall
forward the written statement of facts to the Competition Advocate
through the Director, Division of Contracts and Property Management
with any comments or information that should be considered in
evaluating the request for ratification.
(3) The NRC legal advisor may be asked for an opinion, advice, or
concurrence if there is concern regarding the propriety of the funding
source, appropriateness of the expense, or when some other legal issue
is involved.
2001.603 Selection, appointment, and termination of appointment.
The Director, Division of Contracts and Property Management, is
authorized by the Director, Office of Administration, to select and
appoint contracting officers and to terminate their appointment as
prescribed in FAR 1.603. Delegations of contracting officer authority
are issued by memorandum which includes a clear statement of the
delegated authority, including responsibilities and limitations in
addition to the ``Certificate of Appointment'', SF 1402. The Director,
Division of Contracts and Property Management, may delegate micro-
purchase authority in accordance with agency procedures. Such
delegation may be accomplished by written memorandum. (ref. FAR 1.603-
3(b))
PART 2002--DEFINITIONS
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841, and 41 U.S.C. 418(b).
[[Page 67731]]
Subpart 2002.1--Definitions
2002.100 Definitions.
Agency means the Nuclear Regulatory Commission (NRC).
Agency Head or Head of the Agency means the NRC Executive Director
for Operations, for the purposes specified in this chapter and the FAR.
This delegation does not extend to internal NRC requirements such as
clearance levels and Commission papers which specify higher levels of
authority.
Commission means the NRC Commission of five members, or a quorum
thereof, sitting as a body, as provided by Section 201 of the Energy
Reorganization Act of 1974 (42 U.S.C. 5841).
Competition Advocate means the individual appointed as such by the
Agency Head as required by Pub. L.
98-369. The Director, Office of Administration, has been appointed the
Competition Advocate for the NRC.
Head of the Contracting Activity means the Director, Division of
Contracts and Property Management.
Senior Procurement Executive means the individual appointed as such
by the Agency Head pursuant to Executive Order 12352. The Deputy
Executive Director for Management Services, has been appointed the NRC
Senior Procurement Executive.
Simplified acquisitions means those acquisition conducted using the
methods, policies and procedures of FAR Part 13 for making purchases of
supplies or services.
Task and Delivery Order Ombudsman means the Director, Office of
Administration, or designee pursuant to Section 1004(a) of Pub. L. 103-
355, the Federal Acquisition Streamlining Act.
PART 2003--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 2003.1--Safeguards
Sec.
2003.101-3 Agency regulations.
Subpart 2003.2--Contractor Gratuities to Government Personnel
Sec.
2003.203 Reporting of suspected violation of the gratuities clause.
Authority: 42 U.S.C. 2201; Sec. 201, 88 Stat. 1242, as amended; 42
U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2003.1--Safeguards
2003.101-3 Agency regulations.
Standards of conduct for federal employees are published in 5 CFR
Parts 2635 and 5801. Requirements for financial disclosure are
published in 5 CFR Part 2634.
Subpart 2003.2--Contractor Gratuities to Government Personnel
2003.203 Reporting suspected violations of the gratuities clause.
(a) Suspected violations of the ``Gratuities'' clause, FAR
52.203.3, must be reported orally or in writing directly to the NRC
Office of the Inspector General. A report must include all facts and
circumstances related to the case. Refer to 5 CFR 2635 for an
explanation regarding what is prohibited and what is permitted.
(b) When appropriate, discussions with the contracting officer or a
higher procurement official, procurement policy staff, and the
procurement legal advisor prior to filing a report are encouraged.
PART 2004--ADMINISTRATIVE MATTERS
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 481(b).
Subpart 2004.4--Safeguarding Classified Information Within Industry
2004.404 Contract clauses.
(a) The contracting officer shall insert the clause at
Sec. 2052.204-70 Security, in all solicitations and contracts under
which the contractor may have access to, or contact with, classified
information, including National Security information, restricted data,
formerly restricted data, and other classified data.
(b) The contracting officer shall insert the clause Sec. 2052.204-
71 Site Access Badge Requirements, in all solicitations and contracts
under which the contractor will require access to Government
facilities. The clause may be altered to reflect any special conditions
to be applied to foreign nationals.
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
Part 2005--PUBLICIZING CONTRACT ACTIONS
Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201);
Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-
400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub.
L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.).
Subpart 2005.5--Paid Advertisements
2005.502 Authority.
Before placing paid advertisements in newspapers and trade journals
to publicize contract actions, written authority must be obtained from
the Director, Division of Contracts and Property Management, for
Headquarters activities, or the Director, Division of Resource
Management and Administration, within each regional office for a
regional procurement.
Part 2009--CONTRACTOR QUALIFICATIONS
Subpart 2009.1--Responsible Prospective Contractors
Sec.
2009.100 NRC policy.
2009.105-70 Contract provisions.
Subpart 2009.4--Debarment, Suspension, and Ineligibility
Sec.
2009.403 Definitions.
2009.404 Consolidated lists of parties excluded from Federal
procurement or non-procurement programs.
2009.405 Effect of listing.
2009.405-1 Continuation of current contracts.
2009.405-2 Restrictions on subcontracting.
2009.406 Debarment.
2009.406-3 Procedures.
2009.407 Suspension.
2009.407-3 Procedures.
2009-470 Appeals.
Subpart 2009.5--Organizational Conflicts of Interest
Sec.
2009.500 Scope of subpart.
2009.570 NRC organizational conflicts of interest.
2009.570-1 Scope of policy.
2009.570-2 Definitions.
2009.570-3 Criteria for recognizing contractor organizational
conflicts of interest.
2009.570-4 Representation.
2009.570-5 Contract clauses.
2009.570-6 Evaluation, findings, and contract award.
2009.570-7 Conflicts identified after award.
2009.570-8 Subcontracts.
2009.570-9 Waiver.
2009.570-10 Remedies.
Authority: 42 U.S.C. 2201; Sec 201, 88 Stat. 1242; as amended;
42 U.S.C. 5841; and 41 U.S.C 418(b).
Subpart 2009.1--Responsible Prospective Contractors
2009.100 NRC policy.
(a) It is NRC policy that only competitively awarded contracts
shall be placed with an individual who was employed by the NRC within
two years from the date of the Request for Procurement Action. This
policy also pertains to any firm in which the former NRC employee is a
partner, principal officer, majority stockholder, principal
investigator, project manager, principal under the contract, a person
who performs more than a nominal amount of the work under the NRC
Statement of Work, or the firm is otherwise controlled or predominately
staffed by former NRC employees.
[[Page 67732]]
(b) The following procurement actions are considered noncompetitive
for the purposes of this policy:
(1) Contracts awarded noncompetitively under the Small Business
Administration's 8(a) Program;
(2) Individual task orders if the former employee was not
identified as ``key personnel'' in a proposal which was evaluated under
competitive procedures;
(3) Unsolicited proposals;
(4) Subcontracts that require review for the purpose of granting
consent under NRC prime contracts.
(c) The term NRC employee includes special Government employees
performing services for NRC as experts, advisors, consultants, or
members of advisory committees, if--
(1) The contract arises directly out of the individual's activity
as a special employee;
(2) The individual is in a position to influence the award of the
contract; or
(3) The Contracting Officer determines that another conflict of
interest exists.
(d) A justification explaining why it is in the best interest of
the Government to contract with an individual or firm described in
paragraphs (a) and (b) of this section on a noncompetitive basis may be
approved by the Senior Procurement Executive after consulting with the
Executive Director for Operations. This is in addition to any
justification and approvals which may be required by the FAR for use of
other than full and open competition.
(e) Nothing in this policy statement shall be construed as
relieving former employees from obligations prescribed by law, such as
18 U.S.C. 207, Restrictions on Former Officers, Employees, and Elected
Officials of the Executive and Legislative Branches.
2009.105-70 Contract provisions.
The contracting officer shall insert the following provisions in
all solicitations:
(a) Section 2052.209-70 Current/Former Agency Employee Involvement.
Subpart 2009.4--Debarment, Suspension, and Ineligibility
2009.403 Definitions.
As used in 2009.4:
Debarring official means the Senior Procurement Executive.
Suspending official means the Senior Procurement Executive.
2009.404 Consolidated list of parties excluded from Federal
procurement or non-procurement programs.
The contracting officer responsible for the contract affected by
the debarment or suspension shall perform the actions required by FAR
9.404(c)(1)-(6).
2009.405 Effect of listing.
Compelling reasons are considered to be present where failure to
contract with the debarred or suspended contractor would seriously harm
the agency's programs and prevent accomplishment of mission
requirements. The Senior Procurement Executive is authorized to make
the determinations under FAR 9.405. Requests for these determinations
must be submitted from the Head of the Contracting Activity, through
the Director, Office of Administration, to the Senior Procurement
Executive.
2009.405-1 Continuation of current contracts.
The Head of the Contracting Activity is authorized to make the
determination to continue contracts or subcontracts in existence at the
time the contractor was debarred, suspended, or proposed for debarment
in accordance with FAR 9.405-1.
2009.405-2 Restrictions on subcontracting.
The Head of the Contracting Activity is authorized to approve
subcontracts with debarred or suspended subcontractors under FAR 9.405-
2.
2009.406 Debarment.
2009.406-3 Procedures.
(a) Investigation and referral. When a contracting officer becomes
aware of possible irregularities or any information which may be
sufficient cause for debarment, the case must be referred from the Head
of the Contracting Activity, through the Director, Office of
Administration, to the Senior Procurement Executive immediately. The
case must be accompanied by a complete statement of the facts
(including a copy of any criminal indictments, if applicable) along
with a recommendation for action. Where the statement of facts
indicates the irregularities to be possible criminal offenses, or for
any other reason further investigation is considered necessary, the
matter must first be referred to the Head of the Contracting Activity
who will consult with the Office of the Inspector General to determine
if further investigation is required prior to referring to the
debarring official.
(b) Decision-making process. If, after reviewing the
recommendations and consulting with the Office of the General Counsel
and, if appropriate, the Office of the Inspector General, the debarring
official determines debarment is justified, the debarring official
shall initiate the proposed debarment in accordance with FAR 9.406-3(c)
and notify the Head of the Contracting Activity of the action taken. If
the contractor fails to submit a timely written response within 30 days
after receipt of the notice in accordance with FAR 9.406-3(c)(4), the
debarring official may notify the contractor in accordance with FAR
9.406-3(d) that the contractor is debarred.
(c) Fact-finding proceedings. For actions listed under FAR 9.406-
3(b)(2), the contractor shall be given the opportunity to appear at an
informal hearing. The hearing should be held at a location and time
that is convenient to the parties concerned, and no later than 30 days
after the contractor received the notice, if at all possible. The
contractor and any specifically named affiliates may be represented by
counsel or any duly authorized representative. Witnesses may be called
by either party. The proceedings must be conducted expeditiously and in
such a manner that each party will have an opportunity to present all
information considered pertinent to the proposed debarment.
2009.407 Suspension.
2009.407-3 Procedures.
(a) Investigation and referral. When a contracting officer becomes
aware of possible irregularities or any information which may be
sufficient cause for suspension, the case must be referred from the
Head of the Contracting Activity, through the Director, Office of
Administration, to the Senior Procurement Executive immediately. The
case must be accompanied by a complete statement of the facts along
with a recommendation for action. Where the statement of facts
indicates the irregularities to be possible criminal offenses, or for
any other reason further investigation is considered necessary, the
matter must first be referred to the Head of the Contracting Activity
who will consult with the Office of the Inspector General to determine
if further investigation is required prior to referring the matter to
the suspending official.
(b) Decision-making process. If, after reviewing the
recommendations and consulting with the Office of the General Counsel,
and if appropriate, the Office of the Inspector General, the suspending
official determines suspension is justified, the suspending official
shall initiate the proposed suspension in accordance with FAR 9.407-
3(b)(2). The contractor shall be given the opportunity to appear at an
informal hearing, similar in nature to the hearing for debarments as
discussed in FAR 9.406-3(b)(2). If the contractor fails to submit a
timely written response within 30 days after receipt of the notice in
accordance with FAR 9.407-3(c)(5),
[[Page 67733]]
the suspending official may notify the contractor in accordance with
FAR 9.407-3(d) that the contractor is suspended.
2009.470 Appeals.
A debarred or suspended contractor may appeal the debarring/
suspending official's decision by mailing or otherwise furnishing a
written notice within 90 days from the date of the decision to the
Executive Director for Operations. A copy of the notice of appeal must
be furnished to the debarring/suspending official.
Subpart 2009.5--Organizational Conflicts of Interest
2009.500 Scope of subpart.
In accordance with 42 U.S.C. 2210a., NRC acquisitions are processed
in accordance with 2009.570, which takes precedence over FAR 9.5 with
respect to organizational conflicts of interest. Where non-conflicting
guidance appears in FAR 9.5, that guidance must be followed.
2009.570 NRC organizational conflicts of interest.
2009.570-1 Scope of policy.
(a) It is the policy of NRC to avoid, eliminate, or neutralize
contractor organizational conflicts of interest. The NRC achieves this
objective by requiring all prospective contractors to submit
information describing relationships, if any, with organizations or
persons (including those regulated by the NRC) which may give rise to
actual or potential conflicts of interest in the event of contract
award.
(b) Contractor conflict of interest determinations cannot be made
automatically or routinely. The application of sound judgment on
virtually a case-by-case basis is necessary if the policy is to be
applied to satisfy the overall public interest. It is not possible to
prescribe in advance a specific method or set of criteria which would
serve to identify and resolve all of the contractor conflict of
interest situations that might arise. However, examples are provided in
this chapter to guide application of this policy guidance. The ultimate
test is as follows: Might the contractor, if awarded the contract, be
placed in a position where its judgment may be biased, or where it may
have an unfair competitive advantage?
(c) The conflict of interest rule contained in this subpart applies
to contractors and offerors only. Individuals or firms who have other
relationships with the NRC (e.g., parties to a licensing proceeding)
are not covered by this regulation. This rule does not apply to the
acquisition of consulting services through the personnel appointment
process, NRC agreements with other Government agencies, international
organizations, or state, local, or foreign Governments. Separate
procedures for avoiding conflicts of interest will be employed in these
agreements, as appropriate.
2009.570-2 Definitions.
Affiliates means business concerns which are affiliates of each
other when either directly or indirectly one concern or individual
controls or has the power to control another, or when a third party
controls or has the power to control both.
Contract means any contractual agreement or other arrangement with
the NRC except as provided in Sec. 2009.570-1(c).
Contractor means any person, firm, unincorporated association,
joint venture, co-sponsor, partnership, corporation, affiliates
thereof, or their successors in interest, including their chief
executives, directors, key personnel (identified in the contract),
proposed consultants or subcontractors, which are a party to a contract
with the NRC.
Evaluation activities means any effort involving the appraisal of a
technology, process, product, or policy.
Offeror or prospective contractor means any person, firm,
unincorporated association, joint venture, co-sponsor, partnership,
corporation, or their affiliates or successors in interest, including
their chief executives, directors, key personnel, proposed consultants,
or subcontractors, submitting a bid or proposal, solicited or
unsolicited, to the NRC to obtain a contract.
Organizational conflicts of interest means that a relationship
exists whereby a contractor or prospective contractor has present or
planned interests related to the work to be performed under an NRC
contract which:
(1) May diminish its capacity to give impartial, technically sound,
objective assistance and advice, or may otherwise result in a biased
work product; or
(2) May result in its being given an unfair competitive advantage.
Potential conflict of interest means that a factual situation
exists that suggests that an actual conflict of interest may arise from
award of a proposed contract. The term potential conflict of interest
is used to signify those situations that--
(1) Merit investigation before contract award to ascertain whether
award would give rise to an actual conflict; or
(2) Must be reported to the contracting officer for investigation
if they arise during contract performance.
Research means any scientific or technical work involving
theoretical analysis, exploration, or experimentation.
Subcontractor means any subcontractor of any tier who performs work
under a contract with the NRC except subcontracts for supplies and
subcontracts in amounts not exceeding $10,000.
Technical consulting and management support services means internal
assistance to a component of the NRC in the formulation or
administration of its programs, projects, or policies which normally
require that the contractor be given access to proprietary information
or to information that has not been made available to the public. These
services typically include assistance in the preparation of program
plans, preliminary designs, specifications, or statements of work.
2009.570-3 Criteria for recognizing contractor organizational
conflicts of interest.
(a) General. (1) Two questions will be asked in determining whether
actual or potential organizational conflicts of interest exist:
(i) Are there conflicting roles which might bias an offeror's or
contractor's judgment in relation to its work for the NRC?
(ii) May the offeror or contractor be given an unfair competitive
advantage based on the performance of the contract?
(2) NRC's ultimate determination that organizational conflicts of
interest exist will be made in light of common sense and good business
judgment based upon the relevant facts. While it is difficult to
identify and to prescribe in advance a specific method for avoiding all
of the various situations or relationships that might involve potential
organizational conflicts of interest, NRC personnel will pay particular
attention to proposed contractual requirements that call for the
rendering of advice, consultation or evaluation activities, or similar
activities that directly lay the groundwork for the NRC's decisions on
regulatory activities, future procurements, and research programs. Any
work performed at an applicant or licensee site will also be closely
scrutinized by the NRC staff.
(b) Situations or relationships. The following situations or
relationships
[[Page 67734]]
may give rise to organizational conflicts of interest:
(1) The offeror or contractor shall disclose information, that may
give rise to organizational conflicts of interest under the following
circumstances. The information may include the scope of work or
specification for the requirement, being performed, the period of
performance, and the name and telephone number for a point of contact
at the organization knowledgeable about the commercial contract.
(i) Where the offeror or contractor provides advice and
recommendations to the NRC in the same technical area where it is also
providing consulting assistance to any organization regulated by the
NRC.
(ii) Where the offeror or contractor provides advice to the NRC on
the same or similar matter on which it is also providing assistance to
any organization regulated by the NRC.
(iii) Where the offeror or contractor evaluates its own products or
services, or has been substantially involved in the development or
marketing of the products or services of another entity.
(iv) Where the award of a contract would result in placing the
offeror or contractor in a conflicting role in which its judgment may
be biased in relation to its work for the NRC, or would result in an
unfair competitive advantage for the offeror or contractor.
(v) Where the offeror or contractor solicits or performs work at an
applicant or licensee site while performing work in the same technical
area for the NRC at the same site.
(2) The contracting officer may request specific information from
an offeror or contractor or may require special contract clauses such
as provided in Sec. 2009.570-5(b) in the following circumstances:
(i) Where the offeror or contractor prepares specifications that
are to be used in competitive procurements of products or services
covered by the specifications.
(ii) Where the offeror or contractor prepares plans for specific
approaches or methodologies that are to be incorporated into
competitive procurements using the approaches or methodologies.
(iii) Where the offeror or contractor is granted access to
information not available to the public concerning NRC plans, policies,
or programs that could form the basis for a later procurement action.
(iv) Where the offeror or contractor is granted access to
proprietary information of its competitors.
(v) Where the award of a contract might result in placing the
offeror or contractor in a conflicting role in which its judgment may
be biased in relation to its work for the NRC or might result in an
unfair competitive advantage for the offeror or contractor.
(c) Policy application guidance. The following examples are
illustrative only and are not intended to identify and resolve all
contractor organizational conflict of interest situations.
(1)(i) Example. The ABC Corp., in response to a Request For
Proposal (RFP), proposes to undertake certain analyses of a reactor
component as called for in the RFP. The ABC Corp. is one of several
companies considered to be technically well qualified. In response to
the inquiry in the RFP, the ABC Corp. advises that it is currently
performing similar analyses for the reactor manufacturer.
(ii) Guidance. An NRC contract for that particular work normally
would not be awarded to the ABC Corp. because the company would be
placed in a position in which its judgment could be biased in
relationship to its work for the NRC. Because there are other well-
qualified companies available, there would be no reason for considering
a waiver of the policy.
(2)(i) Example. The ABC Corp., in response to an RFP, proposes to
perform certain analyses of a reactor component that is unique to one
type of advanced reactor. As is the case with other technically
qualified companies responding to the RFP, the ABC Corp. is performing
various projects for several different utility clients. None of the ABC
Corp. projects have any relationship to the work called for in the RFP.
Based on the NRC evaluation, the ABC Corp. is considered to be the best
qualified company to perform the work outlined in the RFP.
(ii) Guidance. An NRC contract normally could be awarded to the ABC
Corp. because no conflict of interest exists which could motivate bias
with respect to the work. An appropriate clause would be included in
the contract to preclude the ABC Corp. from subsequently contracting
for work with the private sector that could create a conflict during
the performance of the NRC contract. For example, ABC Corp. would be
precluded from the performance of similar work for the company
developing the advanced reactor mentioned in the example.
(3)(i) Example. The ABC Corp., in response to a competitive RFP,
submits a proposal to assist the NRC in revising NRC's guidance
documents on the respiratory protection requirements of 10 CFR Part 20.
ABC Corp. is the only firm determined to be technically acceptable. ABC
Corp. has performed substantial work for regulated utilities in the
past and is expected to continue similar efforts in the future. The
work has and will cover the writing, implementation, and administration
of compliance respiratory protection programs for nuclear power plants.
(ii) Guidance. This situation would place the firm in a role where
its judgment could be biased in relationship to its work for the NRC.
Because the nature of the required work is vitally important in terms
of the NRC's responsibilities and no reasonable alternative exists, a
waiver of the policy, in accordance with 2009.570-9 may be warranted.
Any waiver must be fully documented in accordance with the waiver
provisions of this policy with particular attention to the
establishment of protective mechanisms to guard against bias.
(4)(i) Example. The ABC Corp. submits a proposal for a new system
to evaluate a specific reactor component's performance for the purpose
of developing standards that are important to the NRC program. The ABC
Corp. has advised the NRC that it intends to sell the new system to
industry once its practicability has been demonstrated. Other companies
in this business are using older systems for evaluation of the specific
reactor component.
(ii) Guidance. A contract could be awarded to the ABC Corp. if the
contract stipulates that no information produced under the contract
will be used in the contractor's private activities unless this
information has been reported to the NRC. Data on how the reactor
component performs, which is reported to the NRC by contractors, will
normally be disseminated by the NRC to others to preclude an unfair
competitive advantage. When the NRC furnishes information about the
reactor component to the contractor for the performance of contracted
work, the information may not be used in the contractor's private
activities unless the information is generally available to others.
Further, the contract will stipulate that the contractor will inform
the NRC contracting officer of all situations in which the information,
developed about the performance of the reactor component under the
contract, is proposed to be used.
(5)(i) Example. The ABC Corp., in response to a RFP, proposes to
assemble a map showing certain seismological features of the
Appalachian fold belt. In accordance with the representation in the RFP
and 2009.570-3(b)(1)(i), ABC Corp. informs the NRC that it is presently
doing seismological studies
[[Page 67735]]
for several utilities in the eastern United States, but none of the
sites are within the geographic area contemplated by the NRC study.
(ii) Guidance. The contracting officer would normally conclude that
award of a contract would not place ABC Corp. in a conflicting role
where its judgment might be biased. Section 2052.209-72(c) Work for
Others, would preclude ABC Corp. from accepting work which could create
a conflict of interest during the term of the NRC contract.
(6)(i) Example. AD Division of ABC Corp., in response to a RFP,
submits a proposal to assist the NRC in the safety and environmental
review of applications for licenses for the construction, operation,
and decommissioning of fuel cycle facilities. ABC Corp. is divided into
two separate and distinct divisions, AD and BC. The BC Division
performs the same or similar services for industry. The BC Division is
currently pro viding the same or similar services required under the
NRC's contract for an applicant or licensee.
(ii) Guidance. An NRC contract for that particular work would not
be awarded to the ABC Corp. The AD Division could be placed in a
position to pass judgment on work performed by the BC Division, which
could bias its work for NRC. Further, the Conflict of Interest
provisions apply to ABC Corp. and not to separate or distinct divisions
within the company. If no reasonable alternative exists, a waiver of
the policy could be sought in accordance with 2009.570-9.
(7)(i) Example. The ABC Corp. completes an analysis for NRC of
steam generator tube leaks at one of a utility's six sites. Three
months later, ABC Corp. is asked by this utility to perform the same
analysis at another of its sites.
(ii) Guidance. Section 2052.290-72(c)(3) would prohibit the
contractor from beginning this work for the utility until one year
after completion of the NRC work at the first site.
(8)(i) Example. ABC Corp. is assisting NRC in a major on-site
analysis of a utility's redesign of the common areas between its twin
reactors. The contract is for two years with an estimated value of $5
million. Near the completion of the NRC work, ABC Corp. requests
authority to solicit for a $100K contract with the same utility to
trans port spent fuel to a disposal site. ABC Corp. is performing no
other work for the utility.
(ii) Guidance. The Contracting Officer would allow the contractor
to proceed with the solicitation because it is not in the same
technical area as the NRC work; and the potential for technical bias by
the contractor because of financial ties to the utility is slight due
to the relative value of the two contracts.
(9)(i) Example. The ABC Corp. is constructing a turbine building
and installing new turbines at a reactor site. The contract with the
utility is for five years and has a total value of $100 million. ABC
Corp. has responded to an NRC Request For Proposal requiring the
contractor to participate in a major team inspection unrelated to the
turbine work at the same site. The estimated value of the contract is
$75K.
(ii) Guidance. An NRC contract would not normally be awarded to ABC
Corp. since these factors create the potential for financial loyalty to
the utility that may bias the technical judgment of the contractor.
(d) Other considerations. (1) The fact that the NRC can identify
and later avoid, eliminate, or neutralize any potential organizational
conflicts arising from the performance of a contract is not relevant to
a determination of the existence of conflicts prior to the award of a
contract.
(2) It is not relevant that the contractor has the professional
reputation of being able to resist temptations which arise from
organizational conflicts of interest, or that a follow-on procurement
is not involved, or that a contract is awarded on a competitive or a
sole source basis.
2009.570-4 Representation.
(a) The following procedures are designed to assist the NRC
contracting officer in determining whether situations or relationships
exist which may constitute organizational conflicts of interest with
respect to a particular offeror or contractor. The procedures apply to
small purchases meeting the criteria stated in the following paragraph
(b) of this section.
(b) The organizational conflicts of interest representation
provision at 2052.209-71 must be included in solicitations and
contracts resulting from unsolicited proposals. The contracting officer
must also include this provision for task orders and contract
modifications for new work for:
(1) Evaluation services or activities;
(2) Technical consulting and management support services;
(3) Research; and
(4) Other contractual situations where special organizational
conflicts of interest provisions are noted in the solicitation and
would be included in the resulting contract. This representation
requirement also applies to all modifications for additional effort
under the contract except those issued under the ``Changes'' clause.
Where, however, a statement of the type required by the organizational
conflicts of interest representation provisions has previously been
submitted with regard to the contract being modified, only an updating
of the statement is required.
(c) The offeror may, because of actual or potential organizational
conflicts of interest, propose to exclude specific kinds of work
contained in a RFP unless the RFP specifically prohibits the exclusion.
Any such proposed exclusion by an offeror will be considered by the NRC
in the evaluation of proposals. If the NRC considers the proposed
excluded work to be an essential or integral part of the required work
and its exclusion would be to the detriment of the competitive posture
of the other offerors, the NRC shall reject the proposal as
unacceptable.
(d) The offeror's failure to execute the representation required by
paragraph (b) of this section with respect to an invitation for bids is
considered to be a minor informality. The offeror will be permitted to
correct the omission.
2009.570-5 Contract clauses.
(a) General contract clause. All contracts and simplified
acquisitions of the types set forth in 2009.570-4(b) must include the
clause entitled, ``Contractor Organizational Conflicts of Interest,''
set forth in 2052.209-72.
(b) Other special contract clauses. If it is determined from the
nature of the proposed contract that an organizational conflict of
interest exists, the contracting officer may determine that the
conflict can be avoided, or, after obtaining a waiver in accordance
with 2009.570-9, neutralized through the use of an appropriate special
contract clause. If appropriate, the offeror may negotiate the terms
and conditions of these clauses, including the extent and time period
of any restriction. These clauses include but are not limited to:
(1) Hardware exclusion clauses which prohibit the acceptance of
production contracts following a related non-production contract
previously performed by the contractor;
(2) Software exclusion clauses;
(3) Clauses which require the contractor (and certain of its key
personnel) to avoid certain organizational conflicts of interest; and
(4) Clauses which provide for protection of confidential data and
guard against its unauthorized use.
2009.570-6 Evaluation, findings, and contract award.
The contracting officer shall evaluate all relevant facts submitted
by an offeror and other relevant information. After evaluating this
information against the
[[Page 67736]]
criteria of 2009.570-3, the contracting officer shall make a finding of
whether organizational conflicts of interest exist with respect to a
particular offeror. If it has been determined that real or potential
conflicts of interest exist, the contracting officer shall:
(a) Disqualify the offeror from award;
(b) Avoid or eliminate such conflicts by appropriate measures; or
(c) Award the contract under the waiver provision of 2009.570-9.
2009.570-7 Conflicts identified after award.
If potential organizational conflicts of interest are identified
after award with respect to a particular contractor, and the
contracting officer determines that conflicts do exist and that it
would not be in the best interest of the Government to terminate the
contract, as provided in the clauses required by 2009.570-5, the
contracting officer shall take every reasonable action to avoid,
eliminate, or, after obtaining a waiver in accordance with 2009.570-9,
neutralize the effects of the identified conflict.
2009.570-8 Subcontracts.
The contracting officer shall require offerors and contractors to
submit a representation statement from all subcontractors (other than a
supply subcontractor) and consultants performing services in excess of
$10,000 in accordance with 2009.570-4(b). The contracting officer shall
require the contractor to include contract clauses in accordance with
2009.570-5 in consultant agreements or subcontracts involving
performance of work under a prime contract.
2009.570-9 Waiver.
(a) The contracting officer determines the need to seek a waiver
for specific contract awards, with the advice and concurrence of the
program office director and legal counsel. Upon the recommendation of
the Senior Procurement Executive, and after consultation with legal
counsel, the Executive Director for Operations may waive the policy in
specific cases if he determines that it is in the best interest of the
United States to do so.
(b) Waiver action is strictly limited to those situations in which:
(1) The work to be performed under contract is vital to the NRC
program.
(2) The work cannot be satisfactorily performed except by a
contractor whose interests give rise to a question of conflict of
interest.
(3) Contractual and/or technical review and surveillance methods
can be employed by the NRC to neutralize the conflict.
(c) For any waivers, the justification and approval documents must
be placed in the NRC Public Document Room.
2009.570-10 Remedies.
In addition to other remedies permitted by law or contract for a
breach of the restrictions in this subpart or for any intentional
misrepresentation or intentional nondisclosure of any relevant interest
required to be provided for this section, the NRC may debar the
contractor from subsequent NRC contracts.
PART 2011--DESCRIBING AGENCY NEEDS
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2011.4--Delivery or Performance Schedules--Contract Clauses
2011.104-70 NRC Clauses.
(a) The contracting officer shall insert the clause at 2052.211-70
Preparation of Technical Reports, when deliverables include a technical
report.
(b) The contracting officer shall insert the clause at 2052.211-71
Technical Progress Report, in all solicitations and contracts except--
(1) Firm fixed price; or
(2) Indefinite-delivery contracts to be awarded on a time-and-
materials or labor-hour basis, or which provide for issuance of
delivery orders for specific products/services (line items).
(c) The contracting officer shall insert the clause at 2052.211-72
Financial Status Report, in applicable cost reimbursement solicitations
and contracts when detailed assessment of costs is warranted and a
Contractor Spending Plan is required; use the clause at 2052.2211-72
Financial Status Report--Alternate 1 when no Contractor Spending Plan
is required.
(d) The contracting officer may alter clauses 2052.211-70,
2052.211-71, and 2052.211-72 Alternate 1 prior to issuance of the
solicitation or during competition by solicitation amendment. Reporting
requirements should be set at a meaningful and productive frequency.
Insignificant changes may also be made by the contracting officer on a
case-by-case basis during negotiations, without solicitation amendment.
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 2013--SIMPLIFIED ACQUISITION PROCEDURES [RESERVED]
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
PART 2014--SEALED BIDDING
Subpart 2014.2--Solicitation of Bids
Sec.
2014.201 Preparation of invitation for bids.
2014.201-670 Solicitation provisions.
Subpart 2014.4--Opening of Bids and Award of Contract
2014.407 Mistakes in bids.
2014.407-3 Other mistakes disclosed before award.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2014.2--Solicitation of Bids
2014.201 Preparation of invitation for bids.
2014.201-670 Solicitation provisions.
(a) The contracting officer may insert the provision at 2052.214-
70, Prebid Conference, in Invitations for Bids (IFB) where there will
be a prebid conference. This provision may be altered by the
contracting officer to fit the circumstances of the procurement.
(b) The contracting officer may insert in IFBs the provision at
2052.214-71, Bidder Qualifications and Past Experience on an optional
basis to fit the circumstances of the requirement;
(c) The contracting officer shall insert the provision at 2052.214-
72 Bid Evaluation in all IFBs. Paragraph (f) of this provision is
optional.
(d) The contracting officer shall insert the provision of 2052.214-
73 Timely Receipt of Bids in all IFBs.
(e) The contracting officer shall insert the provision at 2052.214-
74 Disposition of Bids in all IFBs.
Subpart 2014.4--Opening of Bids and Award of Contract
2014.407 Mistakes in bids.
2014.407-3 Other mistakes disclosed before award.
The Director, Division of Contracts and Property Management, is
delegated the authority to make the determinations concerning mistakes
in bids, including those with obvious clerical errors, discovered prior
to award. These determinations will be concurred in by legal counsel
prior to notification of the bidder.
2014.407-4 Mistakes after award.
The cognizant contracting officer is delegated the authority to
make determinations concerning mistakes disclosed after award in
accordance with FAR 14.407-4. These determinations will be concurred in
by legal counsel prior to notification of the contractor.
[[Page 67737]]
PART 2015--CONTRACTING BY NEGOTIATION
Subpart 2015.2--Solicitation and Receipt of Proposals and Information
Sec.
2015.209-70 Solicitation provisions and contract clause
Subpart 2015.3--Source Selection
2015.300 Scope of part.
2015.303 Responsibilities.
2015.304 Evaluation factors.
2015.305 Proposal evaluation.
Subpart 2015.6--Unsolicited Proposals
2015.606 Agency procedures.
2015.606-1 Receipt and initial review.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Supart 2015.2--Solicitation and Receipt of Proposals and
Information
2015.209-70 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert in solicitations and
contracts the following clauses as applicable to the requirement:
(1) Section 2052.215-70, Key Personnel in applicable solicitations
and contracts;
(2)(i) Section 2052.215-71, Project Officer Authority in applicable
solicitations and contracts for cost-reimbursement, cost-plus-fixed-
fee, cost-plus-award-fee, cost sharing, labor-hour or time-and-
materials, including task order contracts. This clause and the
following Alternate clauses are intended for experienced, trained
project officers, and may be altered to delete duties where
appropriate:
(ii) Section 2052.215-71 Alternate 1. For solicitations for
issuance of delivery orders for specific products/services;
(iii) Section 2052.215-71 Alternate 2. For solicitations for firm
fixed price contracts, with paragraph (b)(1) of Alternate 1 deleted and
the remainder of the clause renumbered.
(3) The contracting officer shall insert the provision at 2052.215-
72, Timely Receipt of Proposals in all solicitations;
(4) The contracting officer shall insert the provision at 2052.215-
73, Award Notification and Commitment of Public Funds in all
solicitations; and
(5) The contracting officer shall insert the provision at 2052.215-
74, Disposition of Proposals in all solicitations.
(b) The contracting officer may insert in all solicitations the
following provisions as applicable. These provisions may be altered to
fit the circumstances of the requirement. These provisions shall be
tailored to assure that all sections of the instructions for the
Technical and Management Proposal, or Oral Presentation and Supporting
Documentation, reflect a one-to-one relationship to the evaluation
criteria:
(1) Section 2052.215-75, Proposal Presentation and Format for
negotiated procurements for cost type contracts;
(2) Section 2052.215-75 Alternate 1 may be used for all
solicitations for negotiated task order contracts;
(3) Section 2015.215-75 Alternate 2 may be used for all
solicitations for negotiated fixed price, labor hour, or time and
materials contracts:
(c) The contracting officer shall insert the provision at 2052.215-
76, PreProposal Conference, in solicitations which include a
PreProposal conference. This provision may be altered to fit the
circumstances of the requirement.
(d) The contracting officer shall insert the following clauses in
solicitations and contracts as applicable:
(1) Section 2052.215-77, Travel Approvals and Reimbursement, shall
be inserted in cost reimbursement solicitations and contracts which
require travel but do not set a specific ceiling amount on that travel.
Note that requests for foreign travel must be submitted to the NRC 30
days in advance of the travel date.
(2) Section 2052.215-78, Travel Approvals and Reimbursement--
Alternate 1, shall be inserted in cost reimbursement solicitations and
contracts which include a ceiling amount on travel. Note that requests
for foreign travel must be submitted to the NRC 30 days in advance of
the travel.
(e) The contracting officer shall include the following provisions
in all solicitations for competitive procurements to describe the
relationship of technical considerations to cost considerations. The
contracting officer may make appropriate changes to these provisions to
accurately reflect other evaluation procedures, such as evaluation of
proposals against mandatory criteria and bench marking criteria for
Information Technology (IT) procurements:
(1) Section 2052.215-79 Contract Award and Evaluation of Proposals,
shall be included in all solicitations where technical merit is more
important than cost,
(2) Section 2052.215-79 Alternate 1 shall be included when
proposals are to be evaluated on a lowest price, technically acceptable
basis.
(3) Section 2052.215-79 Alternate 2 shall be included where cost
and technical merit are of equal significance.
Subpart 2015.3--Source Selection Processes and Techniques
2015.300 Scope of subpart.
This subpart applies to all contracts awarded on a competitive
basis in accordance with FAR Part 15. This subpart does not apply to
contracts awarded on a non-competitive basis to the Small Business
Administration under Section 8(a) of the Small Business Act.
2015.303 Responsibilities.
(a) The source selection authority is the contracting officer. The
contracting officer, acting as the source selection authority, shall
select an offer for award based upon review of the Source Evaluation
Panel's recommendation as contained in the reports described in
paragraph (c) of this section.
(b) Any cancellation of solicitations and subsequent rejection of
all proposals must be approved by the Head of the Contracting Activity.
(c) For all proposed contracts with total estimated values in
excess of the simplified acquisition threshold and expected to result
from competitive technical and price/cost negotiations, the cooperative
review efforts of technical, contracting, and other administrative
personnel are formalized through establishment of a Source Evaluation
Panel. A single technical member may be appointed to the Source
Evaluation Panel to evaluate proposals with the contracting officer's
approval. In such instances, the Designating Official may appoint
technical advisors (non-voting members) to assist the single technical
member. Except in unusual cases, the Source Evaluation Panel should not
exceed five members including the Chairperson. The Source Evaluation
Panel's proposal evaluation report(s) may include a Competitive Range
Report and a Final Evaluation Report (to be used when award will be
made after conducting discussions), or a Recommendation for Award
Report (to be used when award will be made without discussions).
(d) The Designating Official (Office Director or designee) is
responsible for appointing a Source Evaluation Panel to evaluate
competitive technical proposals in accordance with the solicitation
technical criteria. The Designating Official is also responsible for
conducting an independent review and evaluation of the Source
Evaluation Panel's proposal evaluation report(s) to the contracting
officer.
2015.304 Evaluation factors
The evaluation factors included in the solicitation serve as the
standard against
[[Page 67738]]
which all proposals are evaluated and are the basis for the development
of proposal preparation instructions, in accordance with FAR 15.304(b).
Indication in the solicitation of the relative importance of evaluation
factors and subfactors may be accomplished by the assignment of a
numerical weight to each. For those solicitations which use numerical
weights, those weights shall be stated in the solicitation. For those
factors that will not be numerically weighted, only their relative
importance will be stated in the solicitation. Examples of factors
which may not be numerically weighted are conflict of interest,
estimated cost, and ``go/no go'' evaluation factors.
2015.305 Proposal evaluation.
The contracting officer may provide offerors' cost proposals and
supporting financial information to members of the Source Evaluation
Panel at the same time technical proposals are distributed for
evaluation. The Source Evaluation Panel shall use this information to
perform an accurate integrated assessment of each offeror's proposal
based on all the facts presented to them.
Subpart 2015.6--Unsolicited Proposals
2015.606 Agency procedures.
(a) The Division of Contracts and Property Management is the point
of contact for the receipt, acknowledgment, and handling of unsolicited
proposals.
(b) To ensure that the unsolicitated proposal is logged into the
unsolicited proposal tracking system, it must be submitted in an
original and two copies, and requests for additional information
regarding their preparation, must be submitted to: U.S. Nuclear
Regulatory Commission, Division of Contracts and Property Management,
Mail Stop T-7-I-2, Washington, DC 20555.
2015.606-1 Receipt and initial review.
(a) The Division of Contracts and Property Management shall
acknowledge receipt of an unsolicited proposal, complete a preliminary
review, assign a docket number, and send copies of the unsolicited
proposal to the appropriate program office Director(s) or designee for
evaluation.
(b) The Division of Contracts and Property Management shall be
responsible for controlling reproduction and distribution of proposal
material by notifying evaluators of their responsibilities and tracking
the number of proposals received and forwarded to evaluators.
(c) An acknowledgment letter will be sent to the proposer by The
Division of Contracts and Property Management, providing an estimated
date for a funding decision or identifying the reasons for non-
acceptance of the proposal for review in accordance with FAR 15.606-
1(b) and FAR 15.606-1(c).
PART 2016--TYPES OF CONTRACTS
Subpart 2016.3--Cost Reimbursement Contracts
Sec.
2016.307-70 Contract provisions and clauses.
Subpart 2016.5--Indefinite-Delivery Contracts
2016.506-70 Contract provisions and clauses.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2016.3--Cost Reimbursement Contracts
2016.307-70 Contract provisions and clauses.
(a) The contracting officer shall insert the provision at 2052.216-
70, Level of Effort, in solicitations for negotiated procurements
containing labor costs other than maintenance services, to be awarded
on a cost reimbursement, cost sharing, cost-plus-award fee, cost-plus-
fixed fee, time and materials, or labor hour basis.
(b) The contracting officer may insert the following provisions and
clauses in cost reimbursement contracts as applicable:
(1) Section 2052.216-71, Indirect Cost Rates (where provisional
rates without ceilings apply).
(2) Section 2052.216-71, Indirect Cost Rates--Alternate 1 (where
predetermined rates apply).
(3) Section 2052.216-71, Indirect Cost Rates (Ceiling)--Alternate 2
(where provisional rates with ceilings apply).
(c) The contracting officer may make appropriate changes to these
clauses to reflect different arrangements.
Subpart 2016.5--Indefinite-Delivery Contracts
2016.506-70 Contract provisions and clauses.
The contracting officer shall insert the following clauses in all
solicitations and contracts that contain task order procedures. These
clauses may be altered by the contracting officer to fit the
circumstances of the requirement.
(a) Section 2052.216-72, Task Order Procedures;
(b) Section 2052.216-73, Accelerated Task Order Procedures.
PART 2017--SPECIAL CONTRACTING METHODS
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 481(b).
Subpart 2017.2--Options
2017.204 Contracts.
(a) The contracting officer may approve non-competitive extensions,
within the limits of his/her delegation, to five-year contracts up to a
total of an additional 6 months for the purpose of completing the
competitive process for a follow-on contract, provided that the request
for procurement action for a follow-on or replacement contract was
received in the Division of Contracts and Property Management not less
than 6 months before the end of the fifth year.
(b) Other extensions beyond five years must be approved by the
Competition Advocate.
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 2019--SMALL BUSINESS PROGRAMS
Subpart 2019.7--Subcontracting with small business, small disadvantaged
business, and women-owned small business concerns
Sec.
2019.705 Responsibilities of the contracting officer under the
subcontracting assistance program.
2019.705-4 Reviewing the subcontracting plan.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2019.7--Subcontracting With Small Business, Small
Disadvantaged Business, and Women-Owned Small Business Concerns
2019-705 Responsibilities of the contracting officer under the
subcontracting assistance program.
2019.705-4 Reviewing the subcontracting plan.
(a) The contracting officer may accept the terms of an overall or
``master'' company subcontracting plan incorporated by reference into a
specific subcontracting plan submitted by the apparent successful
offeror/bid for a specific contract, only upon ensuring that the
required information, goals and assurances are included in accordance
with FAR 19.704.
[[Page 67739]]
PART 2022--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 2022.1--Basic Labor Policies.
Sec.
2022.101-1 General
2022.103-4 Approvals.
Subpart 2022.9--Nondiscrimination Because of Age
2022.901-70 Contract provisions.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 4186
(b).
Subpart 2022.1--Basic Labor Policies
2022.101-1 General.
The Head of the Contracting Activity shall designate programs or
requirements for which it is necessary that contractors be required to
notify the Government of actual or potential labor disputes that are
delaying or threaten to delay the timely contract performance.
Contractor notification shall be made in accordance with FAR 52.222-1,
``Notice to the Government of Labor Disputes.''
2022.103-4 Approvals.
The agency approving official for contractor overtime shall be the
contracting officer.
Subpart 2022.9--Nondiscrimination Because of Age
2022.901-70 Contract provisions.
The contracting officer shall insert the provision found at
2052.222-70, Nondiscrimination Because of Age, in all solicitations.
PART 2024--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 2024.1--Protection of Individual Privacy
Sec.
2024.103 Procedures.
Subpart 2024.2--Freedom of Information Act
2024.202 Policy.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2024.1--Protection of Individual Privacy
2024.103 Procedures.
The provisions at 10 CFR Part 9, Subpart B, Privacy Act
Regulations, are applicable to the maintenance or disclosure of
information for a system of records on individuals.
Subpart 2024.2--Freedom of Information Act
2024.202 Policy.
The provisions at 10 CFR Part 9, Subpart A, Freedom of Information
Act Regulations, are applicable to the availability of NRC records to
the public.
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 2027--PATENTS, DATA, AND COPYRIGHTS
Subpart 2027.3--Patent Rights Under Government Contracts
Sec.
2027.305-3 Follow-up by Government.
2027.305-70 Solicitation provisions and contract clauses.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2027.3--Patent Rights Under Government Contracts
2027.305-3 Follow-up by Government.
(a) The contracting officer shall, as a part of the closeout of a
contract, require each contractor to report in writing any patents,
copyrights, or royalties attained using any portion of the contract
funds.
(b) If no activity is to be reported, the contractor shall provide
the following written determination before final payment and closeout
of the contract:
(1) No inventions or discoveries were made,
(2) No copyrights were secured, produced, or composed,
(3) No notices or claims of patent or copyright infringement have
been received by the contractor or its subcontractors, and
(4) No royalty payments were directly involved in the contract or
reflected in the contract price to the Government, nor were any
royalties or other payments paid or owed directly to others.
(c) The contracting officer may waive any of the requirements in
paragraphs (b)(1) through (b)(4) of this section, after documenting the
file to indicate the--
(1) Impracticality of obtaining the document(s); and
(2) Steps taken to attempt to obtain them.
(d) The contracting officer shall notify agency legal counsel
responsible for patents whenever a contractor reports any patent,
copyright, or royalty activity, and shall document the official file
with the resolution to protect the Government's rights prior to making
any final payment and closing out the contract.
2027.305-70 Solicitation provisions and contract clauses.
The contracting officer shall insert the clause at 2052.227-70,
Drawings, Designs, Specifications, and Data, in all solicitations and
contracts in which drawings, designs, specifications, or other data
will be developed and the NRC must retain full rights to them (except
for the contractor's right to retain a copy for its own use). When any
of the clauses prescribed at FAR 27.409, Solicitation Provisions and
Contract Clauses, are included in the solicitation/contract, this
clause will not be used.
PART 2030--COST ACCOUNTING STANDARDS
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2030.2--CAS Program Requirements
2030.201-5 Waiver.
Requests to waive Cost Accounting Standards (CAS) requirements must
be submitted to the Chairman, CAS Board by the Competition Advocate.
The requests for waiver must be forwarded through the Head of the
Contracting Activity with supporting documentation and rationale in
accordance with FAR 30.201-5.
PART 2031--CONTRACT COST PRINCIPLES AND PROCEDURES
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2031.1--Applicability
2031.109-70 Contract clauses.
The contracting officer shall insert the clause at 2052.231-70,
Precontract Costs, in all cost type contracts when costs in connection
with work under the contract will be incurred by the contractor before
the effective date of the contract. Approval for use of this clause
must be obtained at one level above the contracting officer.
PART 2032--CONTRACT FINANCING
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2032.4--Advance Payments for Non-Commercial Items
2032.402 General.
(a) The contracting officer shall have the responsibility and
authority for making findings and determinations and for approval of
contract terms concerning advance payments.
(b) Before authorizing any advance payment agreements, except for
subscriptions to publications, the
[[Page 67740]]
contracting officer shall coordinate with the Office of the Chief
Financial Officer, Division of Accounting and Finance, to ensure
completeness of contractor submitted documentation.
PART 2033--PROTESTS, DISPUTES, AND APPEALS
Subpart 2033.1--Protests
Sec.
2033.103 Protests to the agency.
Subpart 2033.2--Disputes and Appeals
Sec.
2033.204 Policy.
2033.211 Contract Claims--Contracting officer's decision.
2033.215 Contract clause.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2033.1--Protests
2033.103 Protests to the agency.
Protests to the agency shall first be considered by the contracting
officer. In accordance with FAR 33.103(d)(4), the protestor may appeal
the contracting officer's decision by delivering or providing a written
request to the agency Director, Division of Contracts or Property
Management, or designee, to conduct an independent review of the
Contracting Officer's decision.
Subpart 2033.2--Disputes and Appeals
2033.204 Policy.
Final decisions of the NRC contracting officer on contract disputes
and appeals issued pursuant to the Contracts Disputes Act will be heard
by the Department of Energy Board of Contract Appeals (EBCA) pursuant
to an interagency agreement between the NRC and the Department of
Energy. The EBCA rules appear in 10 CFR part 1023.
2033.211 Contract Claims--Contracting officer's decision.
The contracting officer shall alter the paragraph at FAR
33.211(a)(4)(v) to identify the Energy Board of Contract Appeals and
include its address: U.S. Department of Energy, Board of Contract
Appeals, HG-50, Building 950, 1000 Independence Ave., SW, Washington,
DC 20585, when preparing a written decision.
2033.215 Contract clause.
The contracting officer shall use the clause at FAR 52.233-1,
Disputes, with its Alternate I, where continued performance is vital to
National Security, the public health and safety, critical and major
agency programs, or other essential supplies or services whose timely
reprocurement from other sources would be impractical.
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 2035--RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
2035.70 Contract clauses.
2035.71 Broad agency announcements.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
2035.70 Contract clauses.
(a) The contracting officer shall insert the following clause in
all solicitations and contracts for research and development by private
contractors and universities and for other technical services, as
appropriate:
(1) Section 2052.235-70, Publication of Research Results;
(2) Section 2052.235-72 Safety, Health and Fire Protection.
2035.71 Broad agency announcements.
(a) Criteria for selecting contractors may include such factors as:
(1) Unique and innovative methods, approaches, or concepts
demonstrated by the proposal.
(2) Overall scientific, technical, or economic merits of the
proposal.
(3) The offeror's capabilities, related experience, facilities,
techniques, or unique combinations of these which are integral factors
for achieving the proposal objectives.
(4) The qualifications, capabilities, and experience of the
proposed principal investigator, team leader, or key personnel who are
critical in achieving the proposal objectives.
(5) Potential contribution of the effort to NRC's mission.
(6) Overall standing among similar proposals available for
evaluation and/or evaluation against the known state-of-the-art
technology.
(b) Once a proposal is received, communication between the agency's
scientific or engineering personnel and the principal investigator is
permitted for clarification purposes only and must be coordinated
through the Division of Contracts and Property Management.
(c) After evaluation of the proposals, the Designating Official
shall submit a comprehensive evaluation report to the contracting
officer which recommends the source(s) for contract award. The report
must reflect the basis for the selection or nonselection of each
proposal received.
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 2042--CONTRACT ADMINISTRATION
Subpart 2042.570--Differing Professional Views (DPV)
Sec.
2042.570-1 Policy.
2042.570-2 Solicitation and contract clauses.
Subpart 2042.8--Disallowance of Costs
Sec.
2042.803 Disallowing costs after incurrence.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 418(b).
Subpart 2042.570--Differing Professional Views
2042.570-1 Policy.
The Nuclear Regulatory Commission's (NRC) policy is to support the
contractor's expression of professional health and safety-related
concerns associated with the contractor's work for NRC that may differ
from a prevailing NRC staff view, disagree with an NRC decision or
policy position, or take issue with proposed or established agency
practices. An occasion may arise when an NRC contractor, contractor's
personnel, or subcontractor personnel believes that a conscientious
expression of a competent judgment is required to document such
concerns on matters directly associated with its performance of the
contract. The procedure described in 2052.242-71, Procedures for
Resolving NRC Contractor Differing Professional Views, provide for the
expression and resolution of DPVs of health and safety-related concerns
associated with the mission of the agency by NRC contractors,
contractor personnel or subcontractor personnel on matters directly
associated with its performance of the contract. The contractor shall
provide a copy of the NRC DPV procedure to all of its employees
performing under this contract and to all subcontractors who shall, in
turn, provide a copy of the procedure to its employees. Note: The prime
contractor or subcontractor shall submit all DPV's received but need
not endorse them.
2042.570-2 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert the clause at 2052.242-70,
Resolving NRC Contractor Differing Professional Views, in the body of
cost reimbursement solicitations and contracts for professional
services, as
[[Page 67741]]
appropriate. This clause may not be altered by the contracting officer.
(b) The contracting officer shall include the clause at 2052.242-
71, Procedures for Resolving NRC Contractor Differing Professional
Views, as an attachment to cost reimbursement solicitations and
contracts for professional services, as appropriate. This clause may
not be altered by the contracting officer.
Subpart 2042.8--Disallowance of Costs
2042.803 Disallowing costs after incurrence.
(a) Vouchers and invoices submitted to NRC must 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, the contracting officer or designee
shall:
(1) Hold informal discussions with the contractor as appropriate.
(2) If the discussions do not resolve the matter, the contracting
officer shall issue a notice advising the contractor of costs
disallowed. The notice must advise the contractor that it may:
(i) If in disagreement with the disallowance, submit a written
claim to the contracting officer for payment of the disallowed cost and
explain why the cost should be reimbursed; or
(ii) If the disagreement(s) cannot be settled, file a claim under
the disputes clause which will be processed in accordance with disputes
procedures found at FAR Subpart 33.2; and
(3) Process the voucher or invoice for payment and advise the NRC
Division of Accounting and Finance to deduct the disallowed costs when
scheduling the voucher for payment.
(b) When audit reports or other notifications question costs or
consider them unallowable, the contracting officer shall resolve all
cost issues through discussions with the contractor and/or auditor,
whenever possible, within six months of receipt of the audit report.
(1) One of the following courses of action must be pursued:
(i) Accept and implement audit recommendations as submitted;
(ii) Accept the principle of the audit recommendation but adjust
the amount of the questioned costs;
(iii) Reject audit findings and recommendations.
(2) When implementing the chosen course of action, the contracting
officer shall:
(i) Hold discussions with the auditor and contractor, as
appropriate;
(ii) If the contracting officer agrees with the auditor concerning
the questioned costs, attempt to negotiate a mutual settlement of
questioned costs;
(iii) Issue a final decision, including any disallowance of
questioned costs; inform the contractor of his/her right to appeal the
decision under the disputes procedures found at FAR Subpart 33.2; and
provide a copy of the final decision to the Office of the Inspector
General; and
(iv) Initiate immediate recoupment actions for all disallowed costs
owed the Government by one or more of the following methods:
(A) Request that the contractor provide a credit adjustment
(offset) and an adequate description/explanation of the adjustment
against amounts billed the Government on the next or other future
invoice(s) submitted under the contract for which the disallowed costs
apply;
(B) Deduct the disallowed costs from the next invoice submitted
under the contract;
(C) Deduct the disallowed costs on a schedule determined by the
contracting officer after discussion with the contractor (if the
contracting officer determines that an immediate and complete deduction
is inappropriate); and
(D) Advise the contractor that a refund is immediately payable to
the Government (in situations where there are insufficient payments
owed by the Government to effect recovery from the contract).
Part 2045--GOVERNMENT PROPERTY
Subpart 2045.3--Providing Government Property to Contractors
Sec.
2045.370 Providing government property (in general).
2045.371 Property accountability procedures.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2045.3--Providing Government Property to Contractors
2045.370 Providing Government property (in general).
(a) Unless otherwise provided for in FAR 45.302-1(d), applicable to
Government facilities with a unit cost of less than $10,000, a
contractor may be provided Government property or allowed to purchase
the property at Government expense upon determination made by the
contracting officer with the advice of the agency property official
that:
(1) No practicable or economical alternative exists; e.g.,
acquisition from other sources, utilization of subcontractors, rental
of property, or modification of program project requirements;
(2) Furnishing Government property is likely to result in
substantially lower costs to the Government for the items produced or
services rendered when all costs involved (e.g., transportation,
installation, modification, maintenance, etc.) are compared with the
costs to the Government of the contractor's use of privately-owned
property; and
(3) The Government receives adequate consideration for providing
the property.
2045.371 Property accountability procedures.
(a) The threshold for detailed reporting of capitalized equipment
by contractors is $50,000.
(b) The contractor shall send a copy of each Financial Status
Report (NRCAR 2052.211-72, and 2052.211-72 Alternate 1) to the Chief,
Property and Acquisition Oversight Branch, Division of Contracts and
Property Management, which references the acquisition of, or change in
status of, contractor-held property purchased with government funds
valued at the time of purchase at $50,000 or more.
SUBCHAPTER H--CLAUSES AND FORMS
PART 2052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 2052.2--Text of Provisions and Clauses
Sec.
2052.200 Authority.
2052.204-70 Security.
2052.204-71 Site access badge requirements.
2052.209-70 Current/former agency employee involvement.
2052.209-71 Contractor organizational conflicts of interest
(representation).
2052.209-72 Contractor organizational conflicts of interest.
2052.211-70 Preparation of technical reports.
2052.211-71 Technical progress report.
2052.211-72 Financial status report.
2052.214-70 Prebid conference.
2052.214-71 Bidder qualifications and past experience.
2052.214-72 Bid evaluation.
2052.214-73 Timely receipt of bids.
2052.214-74 Disposition of bids.
2052.215-70 Key personnel.
2052.215-71 Project officer authority.
2052.215-72 Timely receipt of proposals.
2052.215-73 Award notification and commitment of public funds.
2052.215-74 Disposition of proposals.
2052.215-75 Proposal presentation and format.
2052.215-76 Preproposal conference.
[[Page 67742]]
2052.215-77 Travel approvals and reimbursement.
2052.215-78 Travel approvals and reimbursement--Alternate 1.
2052.215-79 Contract award and evaluation of proposals.
2052.216-70 Level of effort.
2052.216-71 Indirect cost rates.
2052.216-72 Task order procedures.
2052.216-73 Accelerated task order procedures.
2052.222-70 Nondiscrimination because of age.
2052.227-70 Drawings, designs, specifications, and other data.
2052.231-70 Precontract costs.
2052.235-70 Publication of research results.
2052.235-71 Safety, health, and fire protection.
2052.242-70 Resolving NRC differing professional views.
2052.242-71 Procedures for resolving NRC differing professional
views.
Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).
Subpart 2052.2--Text of Provisions and Clauses
2052.200 Authority.
2052.204-70 Security.
As prescribed at 2004.404(a), the contracting officer shall insert
the following clause in solicitations and contracts during which the
contractor may have access to, or contact with classified information,
including National Security information, restricted data, formerly
restricted data, and other classified data:
Security (Date)
(a) Security/Classification Requirements Form. The attached NRC
Form 187 (See List of Attachments) furnishes the basis for providing
security and classification requirements to prime contractors,
subcontractors, or others (e.g., bidders) who have or may have an
NRC contractual relationship that requires access to classified
information or matter, access on a continuing basis (in excess of 90
or more days) to NRC Headquarters controlled buildings, or otherwise
requires NRC photo identification or card-key badges.
(b) It is the contractor's duty to safeguard National Security
Information, Restricted Data, and Formerly Restricted Data. The
contractor shall, in accordance with the Commission's security
regulations and requirements, be responsible for safeguarding
National Security Information, Restricted Data, and Formerly
Restricted Data, and for protecting against sabotage, espionage,
loss, and theft, the classified documents and material in the
contractor's possession in connection with the performance of work
under this contract. Except as otherwise expressly provided in this
contract, the contractor shall, upon completion or termination of
this contract, transmit to the Commission any classified matter in
the possession of the contractor or any person under the
contractor's control in connection with performance of this
contract. If retention by the contractor of any classified matter is
required after the completion or termination of the contract and the
retention is approved by the contracting officer, the contractor
shall complete a certificate of possession to be furnished to the
Commission specifying the classified matter to be retained. The
certification must identify the items and types or categories of
matter retained, the conditions governing the retention of the
matter and their period of retention, if known. If the retention is
approved by the contracting officer, the security provisions of the
contract continue to be applicable to the matter retained.
(c) In connection with the performance of the work under this
contract, the contractor may be furnished, or may develop or
acquire, proprietary data (trade secrets) or confidential or
privileged technical, business, or financial information, including
Commission plans, policies, reports, financial plans, internal data
protected by the Privacy Act of 1974 (Pub. L. 93-579), or other
information which has not been released to the public or has been
determined by the Commission to be otherwise exempt from disclosure
to the public. The contractor agrees to hold the information in
confidence and not to directly or indirectly duplicate, disseminate,
or disclose the information in whole or in part to any other person
or organization except as may be necessary to perform the work under
this contract. The contractor agrees to return the information to
the Commission or otherwise dispose of it at the direction of the
contracting officer. Failure to comply with this clause is grounds
for termination of this contract.
(d) Regulations. The contractor agrees to conform to all
security regulations and requirements of the Commission which are
subject to change as directed by the NRC Division of Facilities and
Security and the Contracting Officer. These changes will be under
the authority of the FAR Changes clause referenced in Section I of
this document.
(e) Definition of National Security Information. The term
National Security Information, as used in this clause, means
information that has been determined pursuant to Executive Order
12958 or any predecessor order to require protection against
unauthorized disclosure and that is so designated.
(f) Definition of Restricted Data. The term Restricted Data, as
used in this clause, 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 does not include data declassified or removed from
the Restricted Data category pursuant to Section 142 of the Atomic
Energy Act of 1954, as amended.
(g) Definition of Formerly Restricted Data. The term Formerly
Restricted Data, as used in this clause, means all data removed from
the Restricted Data category under Section 142-d of the Atomic
Energy Act of 1954, as amended.
(h) Security clearance personnel. The contractor may not permit
any individual to have access to Restricted Data, Formerly
Restricted Data, or other classified information, except in
accordance with the Atomic Energy Act of 1954, as amended, and the
Commission's regulations or requirements applicable to the
particular type or category of classified information to which
access is required. The contractor shall also execute a Standard
Form 312, Classified Information Nondisclosure Agreement, when
access to classified information is required.
(i) Criminal liabilities. It is understood that disclosure of
National Security Information, Restricted Data, and Formerly
Restricted Data relating to the work or services ordered hereunder
to any person not entitled to receive it, or failure to safeguard
any Restricted Data, Formerly Restricted Data, or any other
classified matter that may come to the contractor or any person
under the contractor's control in connection with work under this
contract, may subject the contractor, its agents, employees, or
subcontractors to criminal liability under the laws of the United
States. (See the Atomic Energy Act of 1954, as amended, 42 U.S.C.
2011 et seq.; 18 U.S.C. 793 and 794; and Executive Order 12958.)
(j) Subcontracts and purchase orders. Except as otherwise
authorized in writing by the contracting officer, the contractor
shall insert provisions similar to the foregoing in all subcontracts
and purchase orders under this contract.
(k) In performing the contract work, the contractor shall
classify all documents, material, and equipment originated or
generated by the contractor in accordance with guidance issued by
the Commission. Every subcontract and purchase order issued
hereunder involving the origination or generation of classified
documents, material, and equipment must provide that the
subcontractor or supplier assign classification to all documents,
material, and equipment in accordance with guidance furnished by the
contractor.
(End of Clause)
2052.204-71 Site access badge requirements.
As prescribed at 2004.404(b), the contracting shall insert the
following clause in all solicitations and contracts under which the
contractor will require access to Government facilities. The clause may
be altered to reflect any special conditions to be applied to foreign
nationals:
Site Access Badge Requirements (Jan 1993)
During the life of this contract, the rights of ingress and
egress for contractor personnel must be made available as required.
In this regard, all contractor personnel whose duties under this
contract require their presence on-site shall be clearly
identifiable by a distinctive badge furnished by the Government. The
Project Officer shall assist the contractor in obtaining the badges
for the contractor personnel. It is the sole responsibility of the
contractor to ensure that each employee has proper identification at
all times. All prescribed identification must
[[Page 67743]]
be immediately delivered to the Security Office for cancellation or
disposition upon the termination of employment of any contractor
personnel. Contractor personnel must have this identification in
their possession during on-site performance under this contract. It
is the contractor's duty to assure that contractor personnel enter
only those work areas necessary for performance of contract work,
and to assure the safeguarding of any Government records or data
that contractor personnel may come into contact with.
(End of Clause)
2052.209-70 Current/former agency employee involvement.
As prescribed at 2009.105-70, the contracting officer shall insert
the following provision in all solicitations:
Current/Former Agency Employee Involvement (Date)
(a) The following representation is required by the NRC
Acquisition Regulation 2009.105-70(b). It is not NRC policy to
encourage offerors and contractors to propose current/former agency
employees to perform work under NRC contracts and as set forth in
the above cited provision, the use of such employees may, under
certain conditions, adversely affect NRC's consideration of non-
competitive proposals and task orders.
(b) There ( ) are ( ) are no current/former NRC employees
(including special Government employees performing services as
experts, advisors, consultants, or members of advisory committees)
who have been or will be involved, directly or indirectly, in
developing the offer, or in negotiating on behalf of the offeror, or
in managing, administering, or performing any contract, consultant
agreement, or subcontract resulting from this offer. For each
individual so identified, the Technical and Management proposal must
contain, as a separate attachment, the name of the individual, the
individual's title while employed by the NRC, the date individual
left NRC, and brief description of the individual's role under this
proposal.
(End of Provision)
2052.209-71 Contractor organizational conflicts of interest
(representation).
As prescribed in 2009.570-4(b) and 2009.570-8, the contracting
officer must insert the following provision in applicable solicitations
and in contracts resulting from unsolicited proposals. The contracting
officer must also include the following in task orders and contract
modifications for new work.
Contractor Organizational Conflicts of Interest Representation
(Date)
I represent to the best of my knowledge and belief that:
The award to ________ of a contract or the modification of an
existing contract does / / does not / / involve situations or
relationships of the type set forth in 48 CFR 2009.570-3(b).
(a) If the representation, as completed, indicates that
situations or relationships of the type set forth in 48 CFR
2009.570-3(b) are involved, or the contracting officer otherwise
determines that potential organizational conflicts of interest
exist, the offeror shall provide a statement in writing which
describes in a concise manner all relevant factors bearing on his
representation to the contracting officer. If the contracting
officer determines that organizational conflicts exist, the
following actions may be taken:
(1) Impose appropriate conditions which avoid such conflicts,
(2) Disqualify the offeror, or
(3) Determine that it is otherwise in the best interest of the
United States to seek award of the contract under the waiver
provisions of 48 CFR 2009-570-9.
(b) The refusal to provide the representation required by 48 CFR
2009.570-4(b), or upon request of the contracting officer, the facts
required by 48 CFR 2009.570-3(b), must result in disqualification of
the offeror for award.
(End of Provision)
2052.209-72 Contractor organizational conflicts of interest.
As prescribed at 2009.570-5(a) and 2009.570-8, the contracting
officer must insert the following clause in all applicable
solicitations, contracts, and simplified acquisitions of the types
described in 2009.570-4(b):
Contractor Organizational Conflicts of Interest (Jan 1993)
(a) Purpose. The primary purpose of this clause is to aid in
ensuring that the contractor:
(1) Is not placed in a conflicting role because of current or
planned interests (financial, contractual, organizational, or
otherwise) which relate to the work under this contract; and
(2) Does not obtain an unfair competitive advantage over other
parties by virtue of its performance of this contract.
(b) Scope. The restrictions described apply to performance or
participation by the contractor, as defined in 48 CFR 2009.570-2 in
the activities covered by this clause.
(c) Work for others.
(1) Notwithstanding any other provision of this contract, during
the term of this contract the contractor agrees to forego entering
into consulting or other contractual arrangements with any firm or
organization, the result of which may give rise to a conflict of
interest with respect to the work being performed under this
contract. The contractor shall ensure that all employees under this
contract abide by the provision of this clause. If the contractor
has reason to believe with respect to itself or any employee that
any proposed consultant or other contractual arrangement with any
firm or organization may involve a potential conflict of interest,
the contractor shall obtain the written approval of the contracting
officer before the execution of such contractual arrangement.
(2) The contractor may not represent, assist, or otherwise
support an NRC licensee or applicant undergoing an NRC audit,
inspection, or review where the activities that are the subject of
the audit, inspection or review are the same as or substantially
similar to the services within the scope of this contract (or task
order as appropriate), except where the NRC licensee or applicant
requires the contractor's support to explain or defend the
contractor's prior work for the utility or other entity which NRC
questions.
(3) When the contractor performs work for the NRC under this
contract at any NRC licensee or applicant site, the contractor shall
neither solicit nor perform work in the same or similar technical
area for that licensee or applicant organization for a period
commencing with the award of the task order or beginning of work on
the site (if not a task order contract) and ending one year after
completion of all work under the associated task order, or last time
at the site (if not a task order contract).
(4) When the contractor performs work for the NRC under this
contract at any NRC licensee or applicant site,
(i) The contractor may not solicit work at that site for that
licensee or applicant during the period of performance of the task
order or the contract, as appropriate.
(ii) The contractor may not perform work at that site for that
licensee or applicant during the period of performance of the task
order or the contract, as appropriate, and for one year thereafter.
(iii) Notwithstanding the foregoing, the contracting officer may
authorize the contractor to solicit or perform this type of work
(except work in the same or similar technical area) if the
contracting officer determines that the situation will not pose a
potential for technical bias or unfair competitive advantage.
(d) Disclosure after award.
(1) The contractor warrants that to the best of its knowledge
and belief, and except as otherwise set forth in this contract, that
it does not have any organizational conflicts of interest as defined
in 48 CFR 2009.570-2.
(2) The contractor agrees that, if after award, it discovers
organizational conflicts of interest with respect to this contract,
it shall make an immediate and full disclosure in writing to the
contracting officer. This statement must include a description of
the action which the contractor has taken or proposes to take to
avoid or mitigate such conflicts. The NRC may, however, terminate
the contract if termination is in the best interest of the
Government.
(3) It is recognized that the scope of work of a task-order-type
contract necessarily encompasses a broad spectrum of activities.
Consequently, if this is a task-order-type contract, the contractor
agrees that it will disclose all proposed new work involving NRC
licensees or applicants which comes within the scope of work of the
underlying contract. Further, if this contract involves work at a
licensee or applicant site, the contractor agrees to exercise
diligence to discover and disclose any new work at that licensee or
applicant site. This disclosure must be made before the submission
of a bid or proposal to the utility or other regulated entity and
must be received by the NRC at least 15 days before the proposed
award date in any event, unless a written justification
demonstrating urgency and due diligence to
[[Page 67744]]
discover and disclose is provided by the contractor and approved by
the contracting officer. The disclosure must include the statement
of work, the dollar value of the proposed contract, and any other
documents that are needed to fully describe the proposed work for
the regulated utility or other regulated entity. NRC may deny
approval of the disclosed work only when the NRC has issued a task
order which includes the technical area and, if site-specific, the
site, or has plans to issue a task order which includes the
technical area and, if site-specific, the site, or when the work
violates paragraphs (c)(2), (c)(3) or (c)(4) of this clause.
(e) Access to and use of information.
(1) If in the performance of this contract, the contractor
obtains access to information, such as NRC plans, policies, reports,
studies, financial plans, internal data protected by the Privacy Act
of 1974 (5 U.S.C. Section 552a (1988)), or the Freedom of
Information Act (5 U.S.C. Section 552 (1986)), the contractor agrees
not to:
(i) Use this information for any private purpose until the
information has been released to the public;
(ii) Compete for work for the Commission based on the
information for a period of six months after either the completion
of this contract or the release of the information to the public,
whichever is first;
(iii) Submit an unsolicited proposal to the Government based on
the information until one year after the release of the information
to the public; or
(iv) Release the information without prior written approval by
the contracting officer unless the information has previously been
released to the public by the NRC.
(2) 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. Section 552a (1988)), or the
Freedom of Information Act (5 U.S.C. Section 552 (1986)), or other
confidential or privileged technical, business, or financial
information under this contract, the contractor shall treat the
information in accordance with restrictions placed on use of the
information.
(3) Subject to patent and security provisions of this contract,
the contractor shall have the right to use technical data it
produces under this contract for private purposes provided that all
requirements of this contract have been met.
(f) Subcontracts. Except as provided in 48 CFR 2009.570-2, the
contractor shall include this clause, including this paragraph, in
subcontracts of any tier. The terms contract, contractor, and
contracting officer, must be appropriately modified to preserve the
Government's rights.
(g) Remedies. For breach of any of the above restrictions, or
for intentional nondisclosure or misrepresentation of any relevant
interest required to be disclosed concerning this contract or for
such erroneous representations that necessarily imply bad faith, the
Government may terminate the contract for default, disqualify the
contractor from subsequent contractual efforts, and pursue other
remedies permitted by law or this contract.
(h) Waiver. A request for waiver under this clause must be
directed in writing to the contracting officer in accordance with
the procedures outlined in 48 CFR 2009.570-9.
(i) Follow-on effort. The contractor shall be ineligible to
participate in NRC contracts, subcontracts, or proposals therefor
(solicited or unsolicited), which stem directly from the
contractor's performance of work under this contract. Furthermore,
unless so directed in writing by the contracting officer, the
contractor may not perform any technical consulting or management
support services work or evaluation activities under this contract
on any of its products or services or the products or services of
another firm if the contractor has been substantially involved in
the development or marketing of the products or services.
(1) If the contractor, under this contract, prepares a complete
or essentially complete statement of work or specifications, the
contractor is not eligible to perform or participate in the initial
contractual effort which is based on the statement of work or
specifications. The contractor may not incorporate its products or
services in the statement of work or specifications unless so
directed in writing by the contracting officer, in which case the
restrictions in this paragraph do not apply.
(2) Nothing in this paragraph precludes the contractor from
offering or selling its standard commercial items to the Government.
(End of Clause)
2052.211-70 Preparation of technical reports.
As prescribed at 2011.104-70(a) the contracting officer shall
insert the following clause in solicitations and contracts when
deliverables include a technical report. The contracting officer may
alter this clause prior to issuance of the solicitation or during
competition by solicitation amendment. Insignificant changes may also
be made by the contracting officer on a case-by-case basis during
negotiation, without solicitation amendment.
Preparation of Technical Reports (Jan 1993)
All technical reports required by Section C and all Technical
Progress Reports required by Section F are to be prepared in
accordance with the attached Management Directive 3.8,
``Unclassified Contractor and Grantee Publications in the NUREG
Series.'' Management Directive 3.8 is not applicable to any
Contractor Spending Plan (CSP) and any Financial Status Report that
may be included in this contract. (See List of Attachments).
(End of Clause)
2052.211-71 Technical progress report.
As prescribed at 2011.104-70(b), the contracting officer shall
insert the following clause in all solicitations and contracts except
firm fixed price or indefinite delivery contracts to be awarded on a
time-and-materials or labor-hour basis, or which provide for issuance
of delivery orders for specific products/serviced line items. The
contracting officer may alter this clause prior to issuance of the
solicitation or during competition by solicitation amendment.
Insignificant changes may also be made by the contracting officer on a
case-by-case basis during negotiation, without solicitation amendment.
Technical Progress Report (Jan 1993)
The contractor shall provide a monthly Technical Progress Report
to the project officer and the contracting officer. The report is
due within 15 calendar days after the end of the report period and
must identify the title of the project, the contract number,
appropriate financial tracking code specified by the NRC Project
Officer, project manager and/or principal investigator, the contract
period of performance, and the period covered by the report. Each
report must include the following for each discrete task/task order:
(a) A listing of the efforts completed during the period, and
milestones reached or, if missed, an explanation provided;
(b) Any problems or delays encountered or anticipated and
recommendations for resolution. If the recommended resolution
involves a contract modification, e.g., change in work requirements,
level of effort (cost) or schedule delay, the contractor shall
submit a separate letter to the contracting officer identifying the
required change and estimated cost impact.
(c) A summary of progress to date; and
(d) Plans for the next reporting period.
(End of Clause)
2052.211-72 Financial status report.
As prescribed at 2011.104-70(c), the contracting officer shall
insert the following clause in applicable cost reimbursement
solicitations and contracts when a detailed assessment of costs is
warranted and a contractor spending plan is required. The contracting
officer may alter this clause and Alternate 1 of this clause prior to
issuance of the solicitation or during competition by solicitation
amendment. Insignificant changes may also be made by the contracting
officer on a case-by-case basis during negotiation, without
solicitation amendment.
Financial Status Report (Date)
The contractor shall provide a monthly Financial Status Report
(FSR) to the project officer and the contracting officer. The FSR
shall include the acquisition of, or changes in the status of,
contractor-held property acquired with government funds valued at
the time of purchase at $50,000 or more. Whenever such property
changes occur, the contractor shall send a copy of the report to the
Chief, Property and Acquisition Oversight Branch, Office of
Administration. The report is due within 15 calendar days after the
end of the report period and must identify the title of the project,
the contract
[[Page 67745]]
number, the appropriate financial tracking code (e.g., Job Code
Number or JCN) specified by the NRC Project Officer, project manager
and/or principal investigator, the contract period of performance,
and the period covered by the report. Each report must include the
following for each discrete task:
(a) Total estimated contract amount.
(b) Total funds obligated to date.
(c) Total costs incurred this reporting period.
(d) Total costs incurred to date.
(e) Detail of all direct and indirect costs incurred during the
reporting period for the entire contract or each task, if it is a
task ordering contract.
(f) Balance of obligations remaining.
(g) Balance of funds required to complete contract/task order.
(h) Contractor Spending Plan (CSP) status: A revised CSP is
required with the Financial Status Report whenever the contractor or
the contracting officer has reason to believe that the total cost
for performance of this contract will be either greater or
substantially less than what had been previously estimated.
(1) Projected percentage of completion cumulative through the
report period for the project/task order as reflected in the current
CSP.
(2) Indicate significant changes in the original CSP projection
in either dollars or percentage of completion. Identify the change,
the reasons for the change, whether there is any projected overrun,
and when additional funds would be required. If there have been no
changes to the original NRC-approved CSP projections, a written
statement to that effect is sufficient in lieu of submitting a
detailed response to item ``h''.
(i) Property status:
(1) List property acquired for the project during the month with
an acquisition cost between $500 and $49,999. Give the item number
for the specific piece of equipment.
(2) Provide a separate list of property acquired for the project
during the month with an acquisition cost of $50,000 or more.
Provide the following information for each item of property: item
description or nomenclature, manufacturer, model number, serial
number, acquisition cost, and receipt date. If no property was
acquired during the month, include a statement to that effect. Note:
The same information shall be provided for any component or
peripheral equipment which is part of a ``system or system unit.''
(3) For multi-year projects, in the September monthly financial
status report provide a cumulative listing of property with an
acquisition cost of $50,000 or more showing the above information.
(4) In the final financial status report provide a closeout
property report containing the same elements as described above for
the monthly financial status reports, for all property purchased
with NRC funds regardless of value unless title has been vested in
the contractor. If no property was acquired under the contract,
provide a statement to that effect. The report should note any
property requiring special handling for security, health, safety, or
other reasons as part of the report.
(j) Travel status: List the starting and ending dates for each
trip, the starting point and destination, and the traveler(s) for
each trip.
(k) If the data in this report indicates a need for additional
funding beyond that already obligated, this information may only be
used as support to the official request for funding required in
accordance with the Limitation of Cost (LOC) Clause (FAR 52.232-20)
or the Limitation of Funds (LOF) Clause FAR 52.232-22.
(End of Clause)
Alternate 1 (Date)
As prescribed in 2011.104-70(c), the contracting officer shall
insert the following clause in applicable cost reimbursement
solicitations and contracts when no contractor spending plan is
required:
Financial Status Report--Alternate 1 (Date)
The contractor shall provide a monthly Financial Status Report
(FSR) to the Project Officer and the contracting officer. The FSR
shall include the acquisition of, or changes in the status of,
contractor-held property acquired with government funds valued at
the time of purchase at $50,000 or more. Whenever such changes
occur, the contractor shall send a copy of the report to the Chief,
Property and Acquisition Oversight Branch, Office of Administration.
The report is due within 15 calendar days after the end of the
report period and shall identify the title of the project, the
contract number, project manager and/or principal investigator, the
contract period of performance, and the period covered by the
report. Each report shall include the following for each discrete
task:
(a) Total estimated contract amount.
(b) Total funds obligated to date.
(c) Total costs incurred this reporting period.
(d) Total costs incurred to date.
(e) Detail of all direct and indirect costs incurred during the
reporting period for the entire contract or each task, if it is a
task ordering contract.
(f) Balance of obligations remaining.
(g) Balance of funds required to complete contract/task order.
(h) [Reserved]
(i) Property status:
(1) List property acquired for the project during the month with
an acquisition cost between $500 and $49,999. Give the item number
for the specific piece of equipment.
(2) Provide a separate list of property acquired for the project
during the month with an acquisition cost of $50,000 or more.
Provide the following information for each item of property: item
description or nomenclature, manufacturer, model number, serial
number, acquisition cost, and receipt date. If no property was
acquired during the month, include a statement to that effect. Note:
The same information shall be provided for any component or
peripheral equipment which is part of a ``system or system unit.''
(3) For multi-year projects, in the September monthly financial
status report provide a cumulative listing of property with an
acquisition cost of $50,000 or more showing the above information.
(4) In the final financial status report provide a closeout
property report containing the same elements as described above for
the monthly financial status reports, for all property purchased
with NRC funds regardless of value unless title has been vested in
the contractor. If no property was acquired under the contract,
provide a statement to that effect. The report should note any
property requiring special handling for security, health, safety, or
other reasons as part of the report.
(j) Travel status: List the starting and ending dates for each
trip, the starting point and destination, and the traveler(s) for
each trip.
(k) If the data in this report indicates a need for additional
funding beyond that already obligated, this information may only be
used as support to the official request for funding required in
accordance with the Limitation of Cost (LOC) Clause (FAR 52.232-20)
or the Limitation of Funds (LOF) Clause FAR 52.232-22.
(End of Clause)
2052.214-70 Prebid conference.
As prescribed at 2014.201-670(a), the contracting officer may
insert the following provision in invitations for bids which require a
prebid conference:
Prebid Conference (Jan 1993)
(a) A prebid conference is scheduled for:
Date: *
Location: *
Time: *
(b) This conference is to afford interested parties an
opportunity to present questions and clarify uncertainties regarding
this solicitation. You are requested to mail written questions
concerning those areas of uncertainty which, in your opinion,
require clarification or correction. You are encouraged to submit
your questions in writing not later than * working day(s) prior to
the conference date. Receipt of late questions may result in the
questions not being answered at the conference although they will be
considered in preparing any necessary amendment to the solicitation.
If you plan to attend the conference, notify * by letter or
telephone *, no later than close of business *. Notification of your
intention to attend is essential in the event the conference is
rescheduled or canceled. (Optional statement: Due to space
limitations, each potential bidder is limited to * representatives
at the conference.)
(c) Written questions must be submitted to: U.S. Nuclear
Regulatory Commission, Division of Contracts and Property
Management, ATTN: *, Mail Stop T-7-I-2, Washington, DC 20555.
(d) The envelope must be marked ``Solicitation No. */Prebid
Conference.''
(e) A transcript of the conference will be furnished to all
prospective bidders through the issuance of an amendment to the
solicitation.
* To be incorporated into the solicitation.
(End of Provision)
2052.214-71 Bidder qualifications and past experiences.
As prescribed in 2014.201-670(b), the contracting officer may
insert the
[[Page 67746]]
following provision on an optional basis to fit the circumstances of
the invitation for bid.
Bidder Qualifications and Past Experience (Date)
(a) The bidder shall list previous/current contracts performed
within the past * years (with no omissions) in which the Bidder was
the prime or principal subcontractor. This information will assist
the contracting officer in his/her Determination of Responsibility.
Lack of previous/current contracts or failure to submit this
information will not necessarily result in an unfavorable
Determination of Responsibility.
(b) The following information shall be provided for each
previous/current contract listed:
(1) Contract No.:
(2) Contract performance dates:
(3) Estimated total value of the contract (base plus all option
years):
(4) Brief description of work performed under the contract:
(5) Contract Standard Industrial Code:
(6) Name and address of Government agency or commercial entity:
(7) Technical Point of Contact and current telephone number:
(8) Contracting Officer name and current telephone number:
(c) The bidder shall also provide the name, title and full
telephone number of its technical representative and contracts/
business representative:
(1) Technical Representative name:
Title:
Telephone No. ( )
(2) Contracts/Business Representative name:
Title:
Telephone No. ( )
*To be incorporated into the solicitation.
(End of Provision)
2052.214-72 Bid evaluation.
As prescribed at 2014.201-670(c), the contracting officer shall
insert the following provision in applicable invitations for bids
(paragraph ``(f)'' of this provision is optional):
Bid Evaluation (Jan 1993)
(a) Award will be made to that responsive, responsible bidder
within the meaning of FAR Subpart 9.1 whose total bid amount, as set
forth by the bidder in Section B of this Invitation for Bid (IFB),
constitutes the lowest overall evaluated final contract price to the
Government based upon the requirements as set forth in the schedule.
Bids will be evaluated for purposes of award by first ascertaining
the sum of the total amount for each of the items specified in
Section B of this solicitation. This will constitute the bidder's
``Total Bid Amount.''
(b) Bidders shall insert a definite price or indicate ``no
charge'' in the blank space provided for each item and/or sub-item
listed in Section B. Unless expressly provided for herein, no
additional charge will be allowed for work performed under the
contract other than the unit prices stipulated for each such item
and/or sub-item.
(c) Any bid which is materially unbalanced as to price for the
separate items specified in Section B of this IFB may be rejected as
nonresponsive. An unbalanced bid is defined as one which is based on
prices which, in the opinion of the NRC, are significantly less than
cost for some work and/or prices that may be significantly
overstated for other work.
(d) Separation charges, in any form, are not solicited. Bids
containing charges for discontinuance, termination, failure to
exercise an option, or for any other purpose will cause the bid to
be rejected as nonresponsive.
(e) A preaward on-site survey of the bidder's facilities,
equipment, etc., in accordance with FAR 9.105 and 9.106 may be made
by representatives of the Commission for the purpose of determining
whether the bidder is responsible within the meaning of FAR 9.1, and
whether the bidder possesses qualifications that are conducive to
the production of work that will meet the requirements,
specifications, and provisions of this contract. Also, if requested
by the Commission, the prospective contractor may be required to
submit statements within * hours after receiving the request:
(1) Concerning their ability to meet any of the minimum
standards set forth in FAR 9.104,
(2) Samples of work, and
(3) Names and addresses of additional clients, Government
agencies and/or commercial firms which the bidder is now doing or
had done business with.
(f) Notwithstanding paragraph (b) of this provision, the award
of any contract resulting from this solicitation will be made on an
``all or none'' basis. Thus, bids submitted on fewer than the items
listed in Section B of this IFB, or on fewer than the estimated
quantity, will cause the bid to be rejected as nonresponsive.
*To be inserted into solicitation.
(End of Provision)
2052.214-73 Timely receipt of bids.
As prescribed at Sec. 2014.670(b), the contracting officer shall
insert the following provision in all invitations for bids:
Timely Receipt of Bids (Date)
Sealed offers for furnishing the services or supplies in the
schedule are due at the date and time stated in block 9 of Standard
Form 33, Solicitation, Offer and Award. Offers sent through the U.S.
Mail (including U.S. Postal Service Express Mail Next Day Service--
Post Office to Addressee) must be addressed to the place specified
in the solicitation. All hand-carried offers including those made by
private delivery services (e.g., Federal Express and Airborne
Express) must be delivered to the NRC loading dock security station
located at 11545 Rockville Pike, Rockville, Maryland 20852 and
received in the depository located in Room T-7-I-2. All offerors
should allow extra time for internal mail distribution or for pick
up of hand-carried deliveries. NRC is a secure facility with
perimeter access-control and NRC personnel are only available to
receive hand-carried offers during normal working hours, 7:30 a.m.-
3:30 p.m., Monday through Friday, excluding federal holidays.
(End of Provision)
2052.214-74 Disposition of bids.
As prescribed at 2014.670(b), the contracting officer shall insert
the following provision in applicable invitation for bids:
Disposition of Bids (Jan 1993)
After award of the contract, one copy of each unsuccessful bid
will be retained by NRC's Division of Contracts and Property
Management in accordance with the General Records Schedule 3(5)(b).
Unless return of the additional copies of the bid is requested by
the bidder upon submission of the bid, all other copies will be
destroyed. This request should appear in a cover letter accompanying
the bid.
(End of Provision)
2052.215-70 Key personnel.
As prescribed at 2015.209-70(a)(1), the contracting officer shall
insert in solicitations and contracts the following clause as
applicable to the requirement:
Key Personnel (Jan 1993)
(a) The following individuals are considered to be essential to
the successful performance of the work hereunder: *
The contractor agrees that personnel may not be removed from the
contract work or replaced without compliance with paragraphs (b) and
(c) of this clause.
(b) If one or more of the key personnel, for whatever reason,
becomes, or is expected to become, unavailable for work under this
contract for a continuous period exceeding 30 work days, or is
expected to devote substantially less effort to the work than
indicated in the proposal or initially anticipated, the contractor
shall immediately notify the contracting officer and shall, subject
to the concurrence of the contracting officer, promptly replace the
personnel with personnel of at least substantially equal ability and
qualifications.
(c) Each request for approval of substitutions must be in
writing and contain a detailed explanation of the circumstances
necessitating the proposed substitutions. The request must also
contain a complete resume for the proposed substitute and other
information requested or needed by the contracting officer to
evaluate the proposed substitution. The contracting officer and the
project officer shall evaluate the contractor's request and the
contracting officer shall promptly notify the contractor of his or
her decision in writing.
(d) If the contracting officer determines that suitable and
timely replacement of key personnel who have been reassigned,
terminated, or have otherwise become unavailable for the contract
work is not reasonably forthcoming, or that the resultant reduction
of productive effort would be so substantial as to impair the
successful completion of the contract or the service order, the
contract may be terminated by the contracting officer for default or
for the convenience of the Government, as appropriate. If the
contracting officer finds the contractor at fault for the condition,
the
[[Page 67747]]
contract price or fixed fee may be equitably adjusted downward to
compensate the Government for any resultant delay, loss, or damage.
(End of Clause)
*To be incorporated into any resultant contract.
2052.215-71 Project officer authority.
As prescribed in 2015.209-70(a)(2)(i), the contracting officer
shall insert the following clause in applicable solicitations and
contracts for cost-reimbursement, cost-plus-fixed-fee, cost-plus-award-
fee, cost sharing, labor-hour or time-and-materials, including task
order contracts. This clause and the following alternate clauses are
intended for experienced, trained projects officers, and may be altered
to delete duties where appropriate:
Project Officer Authority (Date)
(a) The contracting officer's authorized representative
hereinafter referred to as the project officer for this contract is:
Name: *
Address: *
Telephone Number: *
(b) Performance of the work under this contract is subject to
the technical direction of the NRC project officer. The term
technical direction is defined to include the following:
(1) Technical direction to the contractor which shifts work
emphasis between areas of work or tasks, authorizes travel which was
unanticipated in the Schedule (i.e., travel not contemplated in the
Statement of Work or changes to specific travel identified in the
Statement of Work), fills in details, or otherwise serves to
accomplish the contractual statement of work.
(2) Provide advice and guidance to the contractor in the
preparation of drawings, specifications, or technical portions of
the work description.
(3) Review and, where required by the contract, approval of
technical reports, drawings, specifications, and technical
information to be delivered by the contractor to the Government
under the contract.
(c) Technical direction must be within the general statement of
work stated in the contract. The project officer does not have the
authority to and may not issue any technical direction which:
(1) Constitutes an assignment of work outside the general scope
of the contract.
(2) Constitutes a change as defined in the ``Changes'' clause of
this contract.
(3) In any way causes an increase or decrease in the total
estimated contract cost, the fixed fee, if any, or the time required
for contract performance.
(4) Changes any of the expressed terms, conditions, or
specifications of the contract.
(5) Terminates the contract, settles any claim or dispute
arising under the contract, or issues any unilateral directive
whatever.
(d) All technical directions must be issued in writing by the
project officer or must be confirmed by the project officer in
writing within ten (10) working days after verbal issuance. A copy
of the written direction must be furnished to the contracting
officer. A copy of NRC Form 445, Request for Approval of Official
Foreign Travel, which has received final approval from the NRC must
be furnished to the contracting officer.
(e) The contractor shall proceed promptly with the performance
of technical directions duly issued by the project officer in the
manner prescribed by this clause and within the project officer's
authority under the provisions of this clause.
(f) If, in the opinion of the contractor, any instruction or
direction issued by the project officer is within one of the
categories as defined in paragraph (c) of this clause, the
contractor may not proceed but shall notify the contracting officer
in writing within five (5) working days after the receipt of any
instruction or direction and shall request the contracting officer
to modify the contract accordingly. Upon receiving the notification
from the contractor, the contracting officer shall issue an
appropriate contract modification or advise the contractor in
writing that, in the contracting officer's opinion, the technical
direction is within the scope of this article and does not
constitute a change under the ``Changes'' clause.
(g) Any unauthorized commitment or direction issued by the
project officer may result in an unnecessary delay in the
contractor's performance and may even result in the contractor
expending funds for unallowable costs under the contract.
(h) A failure of the parties to agree upon the nature of the
instruction or direction or upon the contract action to be taken
with respect thereto is subject to Sec. 52.233-1--Disputes.
(i) In addition to providing technical direction as defined in
paragraph (b) of this clause, the project officer shall:
(1) Monitor the contractor's technical progress, including
surveillance and assessment of performance, and recommend to the
contracting officer changes in requirements.
(2) Assist the contractor in the resolution of technical
problems encountered during performance.
(3) Review all costs requested for reimbursement by the
contractor and submit to the contracting officer recommendations for
approval, disapproval, or suspension of payment for supplies and
services required under this contract.
(End of Clause)
Alternate 1 (Date)
As prescribed at 2015.209-70(a)(2)(ii), the contracting officer
shall insert the following clause in solicitations and contracts
which require issuance of delivery orders for specific products/
services.
Project Officer Authority--Alternate 1 (Date)
(a) The contracting officer's authorized representative,
hereinafter referred to as the project officer, for this contract
is:
Name: *
Address: *
Telephone Number: *
(b) The project officer shall:
(1) Place delivery orders for items required under this contract
up to the amount obligated on the contract award document.
(2) Monitor contractor performance and recommend to the
contracting officer changes in requirements.
(3) Inspect and accept products/services provided under the
contract.
(4) Review all contractor invoices/vouchers requesting payment
for products/services provided under the contract and make
recommendations for approval, disapproval, or suspension.
(c) The project officer may not make changes to the express
terms and conditions of this contract.
* To be incorporated into any resultant contract.
(End of Clause)
Alternate 2 (Date)
As prescribed at 2015.209(a)(2)(iii), the contracting officer
shall insert in solicitations for firm fixed price contracts, the
clause at 2052.215-71 Project Officer Authority Alternate 1 which
shall be used with paragraph (b)(1) deleted and the remainder of the
clause renumbered.
2052.215-72 Timely receipt of proposals.
As prescribed in 2015.209-70(a)(3), the contracting officer shall
insert the following provision in all solicitations:
Timely Receipt of Proposals (Date)
Sealed offers for furnishing the services or supplies in the
schedule are due at the date and time stated in block 9 of Standard
Form 33, Solicitation, Offer and Award. Offers sent through the U.S.
Mail (including U.S. Postal Service Express Mail Next Day Service--
Post Office to Addressee) must be addressed to the place specified
in the solicitation. All hand-carried offers including those made by
private delivery services (e.g., Federal Express and Airborne
Express) must be delivered to the NRC loading dock security station
located at 11545 Rockville Pike, Rockville, Maryland 20852 and
received in the depository located in Room T-7-I-2. All offerors
should allow extra time for internal mail distribution or for pick
up of hand-carried deliveries. NRC is a secure facility with
perimeter access-control and NRC personnel are only available to
receive hand-carried offers during normal working hours, 7:30 AM--
3:30 PM, Monday through Friday, excluding federal holidays.
(End of Provision)
2052.215-73 Award notification and commitment of public funds.
As prescribed at 2015.209-70 (a)(4), the contracting officer shall
insert the following clause in applicable solicitations:
Award Notification and Commitment of Public Funds (Date)
(a) All offerors will be notified of their exclusion from the
competitive range in accordance with FAR 15.503(a)(1). Pursuant to
the requirements of FAR 15.503(a)(2), preliminary notification will
be provided before award for small business set-aside procurements
on negotiated procurements. The contracting officer shall provide
written postaward notice to each unsuccessful offeror in accordance
with FAR 15.503(b).
[[Page 67748]]
(b) It is also brought to your attention that the contracting
officer is the only individual who can legally commit the NRC to the
expenditure of public funds in connection with this procurement.
This means that unless provided in a contract document or
specifically authorized by the contracting officer, NRC technical
personnel may not issue contract modifications, give informal
contractual commitments, or otherwise bind, commit, or obligate the
NRC contractually. Informal contractual commitments include:
(1) Encouraging a potential contractor to incur costs prior to
receiving a contract;
(2) Requesting or requiring a contractor to make changes under a
contract without formal contract modifications;
(3) Encouraging a contractor to incur costs under a cost-
reimbursable contract in excess of those costs contractually
allowable; and
(4) Committing the Government to a course of action with regard
to a potential contract, contract change, claim, or dispute.
(End of Clause)
2052.215-74 Disposition of proposals.
As prescribed in 2015.209-70(a)(5), the contracting officer shall
insert the following provision in all solicitations:
Disposition of Proposals (Jan 1993)
After award of the contract, one copy of each unsuccessful
proposal is retained by the NRC's Division of Contracts and Property
Management in accordance with the General Records Schedule 3(5)(b).
Unless return of the additional copies of the proposals is requested
by the offeror upon submission of the proposals, all other copies
will be destroyed. This request should appear in a cover letter
accompanying the proposal.
(End of Provision)
2052.215-75 Proposal presentation and format.
As prescribed at 2015.209-70(b)(1), the contracting officer may
insert the following provision in applicable negotiated procurements
for cost type solicitations. This clause may be tailored to each
procurement and solicitation evaluation criteria by the contracting
officer to fit the circumstances of the procurement.
Proposal Presentation and Format (Date)
(a) Information submitted in response to this solicitation must
be typed, printed, or reproduced on letter-size paper and each copy
must be legible. Offerors are hereby notified that all information
provided including all resumes, must be accurate, truthful, and
complete to the best of the offeror's knowledge and belief. The
Commission will rely upon all representations made by the offeror
both in the evaluation process and for the performance of the work
by the offeror selected for award. The Commission may require the
offeror to substantiate the credentials, education, and employment
history of its employees, subcontractor personnel, and consultants,
through submission of copies of transcripts, diplomas, licenses,
etc.
(b) The offeror must submit the following material which will
constitute its offer, as defined by FAR 2.101, in two separate and
distinct parts at the date and time specified in * of the
solicitation for receipt of sealed offers.
(1) Part 1--Solicitation Package/Offer. Two (2) original signed
copies of this solicitation package/offer. All applicable sections
must be completed by the offeror.
(2) Part 2--Cost Proposal. One (1) original and * copies of the
``Cost Proposal.''
(i) The cost proposal shall be submitted separately from the
Technical and Management Proposal or Oral Presentation and
Supporting Documentation (as applicable).
(ii) The offeror's request for an exception to submitting cost
or pricing data shall be made in accordance with FAR 52.215-20(a).
(iii) If the contracting officer does not grant the offeror an
exception from the requirement to submit cost or pricing data, the
offeror's cost proposal shall conform with the requirements of FAR
52.215-20(b). Cost information shall include pertinent details
sufficient to show the elements of cost upon which the total cost is
predicted in accordance with the requirement of FAR 52.215-20(b)(1).
(iv) When the offeror's estimated cost for the proposed work
exceeds $100,000 and the duration of the contract period exceeds six
months, the offeror shall submit a Contractor Spending Plan (CSP) as
part of its cost proposal. Guidance for completing the CSP is
attached.
(v) For any subcontract discussed under the Technical and
Management Proposal, or Oral Presentation Material, provide
supporting documentation on the selection process, i.e. competitive
vs. noncompetitive, and the cost evaluation.
(c) ``Written Technical and Management Proposal'' or ``Oral
Presentation and Supporting Documentation'' (as applicable). One (1)
original and * copies.
(1) The written Technical and Management Proposal or Oral
Presentation and Supporting Documentation may not contain any
reference to cost. Resource information, such as data concerning
labor hours and categories, materials, subcontracts, travel,
computer time, etc., must be included so that the offeror's
understanding of the scope of work may be evaluated.
(2) The offeror shall submit in the written Technical and
Management Proposal or Oral Presentation and Supporting
Documentation full and complete information as set forth below to
permit the Government to make a thorough evaluation and a sound
determination that the proposed approach will have a reasonable
likelihood of meeting the requirements and objectives of this
procurement.
(3) The written Technical Proposal or Oral Presentation and
Supporting Documentation must be tailored to assure that all
information reflects a one-to-one relationship to the evaluation
criteria.
(4) Statements which paraphrase the statement of work without
communicating the specific approach proposed by the offeror, or
statements to the effect that the offeror's understanding can or
will comply with the statement of work may be construed as an
indication of the offeror's lack of understanding of the statement
of work and objectives.
(d) Written Technical or Oral Presentation and Supporting
Documentation Requirements--Instructions. * To be incorporated into
the solicitation
(End of Provision)
Alternate 1 (Date)
As prescribed at 2015.209-70(b)(2), this Alternate 1 may be used
for solicitations for negotiated task orders. Include the following
paragraph in place of paragraph (b)(2)(iv) of the basic provision:
(b)(2)(iv) The offeror's cost proposal shall be based on the
NRC's estimated level of effort. The NRC's estimated level of effort
for this procurement is approximately * professional and * clerical
staff-years for the duration of this contract. This information is
advisory and is not to be considered as the sole basis for the
development of the staffing plan. For the purposes of the Government
estimate, 2000 hours constitute a staff year. The total estimated
cost proposed by the offeror is used for evaluation purposes only.
Any resultant contract, except a requirements contract, contains an
overall cost ceiling whereby individual task orders may be issued.
The cost and fee, if any, for each task order is individually
negotiated and also contains a cost ceiling.
Alternate 2 (Date)
As proposed at 2015.209-70(b)(3), Alternate 2 may be used for
solicitations for negotiated fixed price, labor hour, or time and
materials contracts. Substitute the following paragraph (b)(2)(ii)
for the paragraph (b)(2)(ii) of the basic provision, delete
paragraphs (b)(2)(iii) through (iv) of the basic provision, and
renumber the remaining paragraphs.
(b)(2)(ii) Submittal of information other than cost or pricing
data shall be made in accordance with FAR 52.215-20 Alternate IV.
2052.215-76 Preproposal conference
As prescribed at 2015.407-70(c), the contracting officer may insert
the following provision in applicable solicitations which include a
preproposal conference:
Preproposal Conference (Jan 1993)
(a) A preproposal conference is scheduled for:
Date: *
Location: *
Time: *
(b) This conference is to afford interested parties an
opportunity to present questions and clarify uncertainties regarding
this solicitation. You are requested to mail written questions
concerning those areas of uncertainty which, in your opinion,
require clarification or correction. You are encouraged to submit
your questions in writing not later than * working day(s) prior to
the conference date. Receipt of late questions may result in the
questions not being answered at the conference although they will be
considered in preparing any
[[Page 67749]]
necessary amendment to the solicitation. If you plan to attend the
conference, notify * by letter or telephone * , no later than close
of business * . Notification of your intention to attend is
essential in the event the conference is rescheduled or canceled.
(Optional statement: Due to space limitations, each potential
offeror is limited to * representatives at the conference.)
(c) Written questions must be submitted to: U.S. Nuclear
Regulatory Commission, Division of Contracts and Property
Management, ATTN: *, Mail Stop T-7-I-2, Washington, DC 20555.
(d) The envelope must be marked ``Solicitation No. * /
Preproposal Conference.''
*To be incorporated into the solicitation.
(e) A transcript of the conference will be furnished to all
prospective offerors through the issuance of an amendment to the
solicitation.
(End of Provision)
2052.215-77 Travel approvals and reimbursement.
As prescribed at 2015.209-70(d), the contracting officer shall
insert the following clause in cost reimbursement solicitations and
contracts which require travel but do not set a specific ceiling amount
on that travel. Note that requests for foreign travel must be submitted
to the NRC 30 days in advance of the travel date.
Travel Approvals and Reimbursement (Date)
(a) All foreign travel must be approved in advance by the NRC on
NRC Form 445, Request for Approval of Official Foreign Travel, and
must be in compliance with FAR 52.247-63 Preference for U.S. Flag
Air Carriers. The contractor shall submit NRC Form 445 to the NRC no
later than 30 days prior to the commencement of travel.
(b) The contractor must receive written approval from the NRC
Project Officer prior to taking travel which was unanticipated in
the Schedule (i.e., travel not contemplated in the Statement of
Work, or changes to specific travel identified in the Statement of
Work).
(c) The contractor will be reimbursed only for those travel
costs incurred which are directly related to this contract and which
are allowable subject to the limitations prescribed in FAR 31.205-
46.
(d) It is the responsibility of the contractor to notify the
contracting officer in accordance with the Limitations of Cost
clause of this contract when, at any time, the contractor learns
that travel expenses will cause the contractor to exceed the
estimated costs specified in the Schedule.
(e) Reasonable travel costs for research and related activities
performed at State and nonprofit institutions, in accordance with
Section 12 of Pub. L. 100-679, shall be charged in accordance with
the contractor's institutional policy to the degree that the
limitations of Office of Management and Budget (OMB) guidance are
not exceeded. Applicable guidance documents include OMB Circular A-
87, Cost Principles for State and Local Governments; OMB Circular A-
122, Cost Principles for Nonprofit Organizations; and OMB Circular
A-21, Cost Principles for Educational Institutions.
(End of Clause)
2052.215-78 Travel approvals and reimbursement--Alternate 1.
As prescribed in 2015.209-70(d), the contracting officer shall
insert the following clause in cost reimbursement solicitations and
contracts which include a ceiling amount on travel. Note that requests
for foreign travel must be submitted to the NRC 30 days in advance of
the travel date.
Travel Approvals and Reimbursement--Alternate 1 (Date)
(a) Total expenditure for travel may not exceed ____*____
without the prior approval of the contracting officer.
(b) All foreign travel must be approved in advance by the NRC on
NRC Form 445, Request for Approval of Official Foreign Travel, and
must be in compliance with FAR 52.247-63 Preference for U.S. Flag
Air Carriers. The contractor shall submit NRC Form 445 to the NRC no
later than 30 days prior to the commencement of travel.
(c) The contractor will be reimbursed only for those travel
costs incurred which are directly related to this contract and which
are allowable subject to the limitations prescribed in FAR 31.205-
46.
(d) It is the responsibility of the contractor to notify the
contracting officer in accordance with the FAR Limitations of Cost
clause of this contract when, at any time, the contractor learns
that travel expenses will cause the contractor to exceed the travel
ceiling amount identified in paragraph (a) of this clause.
(e) Reasonable travel costs for research and related activities
performed at State and nonprofit institutions, in accordance with
Section 12 of Pub. L. 100-679, shall be charged in accordance with
the contractor's institutional policy to the degree that the
limitations of Office of Management and Budget (OMB) guidance are
not exceeded. Applicable guidance documents include OMB Circular A-
87, Cost Principles for State and Local Governments; OMB Circular A-
122, Cost Principles for Nonprofit Organizations; and OMB Circular
A-21, Cost Principles for Educational Institutions.
*To be incorporated into any resultant contract.
(End of Clause)
2052.215-79 Contract award and evaluation of proposals.
As prescribed in 2015.209(a)(1), insert the following provision in
solicitations when technical merit is more important than cost:
Contract Award and Evaluation of Proposals (Date)
(a) By use of narrative and numerical (as appropriate) scoring
techniques, proposals are evaluated against the evaluation factors
specified in paragraph * below. These factors are listed in their
relative order of importance.
(b) The Government intends to award a contract or contracts
resulting from this solicitation to the responsible offeror(s) whose
proposal(s) represents the best value, as defined in FAR 2.101,
after evaluation in accordance with the factors and subfactors in
the solicitation.
(c) The Government may:
(1) Reject any or all proposals if such action is in the
Government's interest.
(2) Waive informalities and minor irregularities in proposals
received.
(d) The Government intends to evaluate proposals and award a
contract without discussions with offerors. The Government reserves
the right to seek proposal clarifications (e.g., capability issues
as described in FAR 15.306(a) or minor or clerical errors as
described in FAR 14.407); and hold communications as described in
FAR 15.306(b)). Therefore, the offeror's initial proposal should
contain the offeror's best terms from a cost or price and technical
standpoint. The Government reserves the right to conduct discussions
if the Contracting Officer later determines them to be necessary. 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.
(e) The Government reserves the right to make an award on any
item for a quantity less than the quantity offered, at the unit cost
or prices offered, unless the offeror specifies otherwise in the
proposal.
(f) The Government reserves the right to make multiple awards
if, after considering the additional administrative costs, it is in
the Government's best interest to do so.
(g) Exchanges with offerors after receipt of a proposal do not
constitute a rejection or counteroffer by the Government.
(h) The Government may determine that a proposal is unacceptable
if the prices proposed are materially unbalanced between line items
or subline items. Unbalanced pricing exists when, despite an
acceptable total evaluated price, the price of one or more contract
line items is significantly overstated or understated as indicated
by the application of cost or price analysis techniques. A proposal
may be rejected if the Contracting Officer determines that the lack
of balance poses an unacceptable risk to the Government.
(i) If a cost realism analysis is performed, cost realism may be
considered by the source selection authority in evaluating
performance or schedule risk.
(j) A written award or acceptance of proposal mailed or
otherwise furnished to the successful offeror within the time
specified in the proposal shall result in a binding contract without
further action by either party.
(k) A separate cost analysis is performed on each cost proposal.
To provide a common base for evaluation of cost proposals, the level
of effort data must be expressed in staff hours. Where a Contractor
Spending Plan
[[Page 67750]]
(CSP) is required by other provisions of this solicitation,
consideration is given to the Plan for completeness, reasonableness,
and as a measure of effective management of the effort.
*To be incorporated into the solicitation.
(End of Provision)
Alternate 1 (Date)
As prescribed at 2015.209-70(e)(2), Alternate 1 may be used when
proposals are to be evaluated on a lowest price, technically
acceptable basis. Substitute the following paragraph for paragraph
(b) in the clause at 2052.215-79:
(b) Although technical merit in the evaluation criteria set
forth below is a factor in the evaluation of proposals, award will
be made on the basis of the lowest evaluated price of proposals
meeting or exceeding the acceptability standards for non-cost
factors,
Alternate 2 (Date)
As prescribed at 2015.209-70(e)(2), Alternate 2 may be used when
cost and technical merit are of equal significance. Substitute the
following paragraph for paragraph (b) in the clause at 2052.215-79:
(b) In the selection of a contractor, technical merit in the
evaluation criteria set forth below and cost bear equal
significance. To be selected for an award, the proposed cost must be
realistic and reasonable.
2052.216-70 Level of effort.
As prescribed at 2016.307-70(a) the contracting officer shall
insert the following provision in solicitations for negotiated
procurements containing labor costs other than maintenance services, to
be awarded on a cost reimbursement, cost sharing, cost-plus-award-fee,
cost-plus-fixed-fee, time and materials, or labor hours basis.
Level of Effort (Jan 1993)
The NRC's estimate of the total effort for this project is
approximately * professional and * clerical staff-years for the
duration of this contract. This information is advisory and is not
to be considered as the sole basis for the development of the
staffing plan. For the purposes of the Government estimate, 2000
hours constitute a staff year.
*To be incorporated into any resultant contract.
(End of Provision)
2052.216-71 Indirect cost rates.
As prescribed at 2016.307-70(b), the contracting officer may insert
the following clause in solicitations and contracts where provisional
rates without ceiling apply.
Indirect Cost Rates (Jan 1993)
(a) Pending the establishment of final indirect rates which must
be negotiated based on audit of actual costs, the contractor shall
be reimbursed for allowable indirect costs as follows: *
(b) The contracting officer may adjust the above rates as
appropriate during the term of the contract upon acceptance of any
revisions proposed by the contractor. It is the contractor's
responsibility to notify the contracting officer in accordance with
FAR 52.232-20, Limitation of Cost, or FAR 52.232-22, Limitation of
Funds, as applicable, if these changes affect performance of work
within the established cost or funding limitations.
*To be incorporated into any resultant contract.
(End of Clause)
Alternate 1
As prescribed at 2016.307-70(b)(2), the contracting officer may
insert the following clause in applicable solicitations and
contracts where predetermined rates apply:
Indirect Cost Rates--Alternate 1 (Jan 1993)
The contractor is reimbursed for allowable indirect costs in
accordance with the following predetermined rates: *
*To be incorporated into any resultant contract.
(End of Clause)
Alternate 2 (Date)
As prescribed at 2016.307-70(b), the contracting officer may
insert the following clause in applicable solicitations and
contracts where provisional rates with ceilings apply:
Indirect Costs (Ceiling)--Alternate 2 (Date)
(a) For this contract, the ceiling amount reimbursable for
indirect costs is as
follows: *
(b) In the event that indirect rates developed by the cognizant
audit activity on the basis of actual allowable costs result in a
lower amount for indirect costs, the lower amount will be paid. The
Government may not be obligated to pay any additional amounts for
indirect costs above the ceiling rates set forth above for the
applicable period.
*To be incorporated into any resultant contract.
(End of Clause)
2052.216-72 Task order procedures.
As prescribed at 2016.506-70(a), the contracting officer may insert
the following clause in applicable solicitations and contracts that
contain task order procedures. This clause may be altered to fit the
circumstances of the requirement.
Task Order Procedures (Date)
(a) Task order request for proposal. When a requirement within
the scope of work for this contract is identified, the contracting
officer shall transmit to the contractor a Task Order Request for
Proposal (TORFP) which may include the following, as appropriate:
(1) Scope of work/meetings/travel and deliverables;
(2) Reporting requirements;
(3) Period of performance--place of performance;
(4) Applicable special provisions;
(5) Technical skills required; and
(6) Estimated level of effort.
(b) Task order technical proposal. By the date specified in the
TORFP, the contractor shall deliver to the contracting officer a
written or verbal (as specified in the TORFP technical proposal
submittal instructions) technical proposal that provides the
technical information required by the TORFP.
(c) Cost proposal. The contractor's cost proposal for each task
order must be fully supported by cost and pricing data adequate to
establish the reasonableness of the proposed amounts. When the
contractor's estimated cost for the proposed task order exceeds
$100,000 and the period of performance exceeds six months, the
contractor may be required to submit a Contractor Spending Plan
(CSP) as part of its cost proposal. The TORP indicates if a CSP is
required.
(d) Task order award. The contractor shall perform all work
described in definitized task orders issued by the contracting
officer. Definitized task orders include the following:
(1) Statement of work/meetings/travel and deliverables;
(2) Reporting requirements;
(3) Period of performance;
(4) Key personnel;
(5) Applicable special provisions; and
(6) Total task order amount including any fixed fee.
(End of Clause)
2052.216-73 Accelerated task order procedures.
As prescribed at 2016.506-70(b), the contracting officer may insert
the following clause in applicable solicitations and contracts which
contain task order procedures. This clause may be altered to fit the
circumstances of the requirement.
Accelerated Task Order Procedures (Jan 1993)
(a) The NRC may require the contractor to commence work before
receipt of a definitized task order from the contracting officer.
Accordingly, when the contracting officer verbally authorizes the
work, the contractor shall proceed with performance of the task
order subject to the monetary limitation established for the task
order by the contracting officer.
(b) When this accelerated procedure is employed by the NRC, the
contractor agrees to begin promptly negotiating with the contracting
officer the terms of the definitive task order and agrees to submit
a cost proposal with supporting cost or pricing data. If agreement
on a definitized task order is not reached by the target date
mutually agreed upon by the contractor and contracting officer, the
contracting officer may determine a reasonable price and/or fee in
accordance with Subpart 15.8 and Part 31 of the FAR, subject to
contractor appeal as provided in 52.233-1, Disputes. In any event,
the contractor shall proceed with completion of the task order,
subject only to the monetary limitation established by the
contracting officer and the terms and conditions of the basic
contract.
(End of Clause)
[[Page 67751]]
2052.222-70 Nondiscrimination because of age.
As prescribed at 2022.901-70, the contracting officer shall insert
the following clause in all solicitations:
Nondiscrimination Because of Age (Jan 1993)
It is the policy of the Executive Branch of the Government that:
(a) Contractors and subcontractors engaged in the performance of
Federal contracts may not, in connection with the employment,
advancement, or discharge of employees or in connection with the
terms, conditions, or privileges of their employment, discriminate
against persons because of their age except upon the basis of a bona
fide occupational qualification, retirement plan, or statutory
requirement; and
(b) That contractors and subcontractors, or persons acting on
their behalf, may not specify, in solicitations or advertisements
for employees to work on Government contracts, a maximum age limit
for employment unless the specified maximum age limit is based upon
a bona fide occupational qualification, retirement plan, or
statutory requirement.
(End of Provision)
2052.227-70 Drawings, designs, specifications, and other data.
As prescribed at 2027.305-70, the contracting officer shall insert
the following clause in all solicitations and contracts in which
drawings, designs, specifications, in other data will be developed and
the NRC must retain full rights to them (except for the contractor's
right to retain a copy for its own use). When any of the clauses
prescribed at FAR 27.409 are included in the solicitation and contract,
this clause will not be used.
Drawings, Designs, Specifications, and Other Data (Jan 1993)
All drawings, sketches, designs, design data, specifications,
notebooks, technical and scientific data, and all photographs,
negatives, reports, findings, recommendations, other data and
memoranda of every description relating thereto, as well as all
copies of the foregoing relating to the work or any part thereto,
are subject to inspection by the Commission at all reasonable times.
Inspection of the proper facilities must be afforded the Commission
by the contractor and its subcontractors. These data are the
property of the Government and may be used by the Government for any
purpose whatsoever without any claim on the part of the contractor
and its subcontractors and vendors for additional compensation and
must, subject to the right of the contractor to retain a copy of the
material for its own use, be delivered to the Government, or
otherwise disposed of by the contractor as the contracting officer
may direct during the progress of the work or upon completion or
termination of this contract. The contractor's right of retention
and use is subject to the security, patent, and use of information
provisions, if any, of this contract.
(End of Clause)
2052.231-70 Precontract costs.
As prescribed in 2031.109-70, the following clause may be used in
all cost type contracts when costs in connection with work under the
contract will be incurred by the contractor before the effective date
of the contract. Approval for use of this clause must be obtained at
one level above the contracting officer.
Precontract Costs (Jan 1993)
Allowable costs under this contract must include such costs
incurred by the contractor in connection with the work covered by
this contract during the period from * and including * to the
effective date of this contract, as would have been allowable
pursuant to the terms of this contract if this contract had been in
effect during that period; provided, however, that the costs may not
in aggregate exceed * which is included in the estimated cost of
this contract.
*To be incorporated into any resultant contract.
(End of Clause)
2052.235-70 Publication of research results.
As prescribed in 2035.70(a)(1), the contracting officer shall
insert the following clause in applicable solicitations and contracts
for research and development by private contractors and universities
and for other technical services as appropriate.
Publication of Research Results (Date)
(a) The principal investigator(s)/contractor shall comply with
the provisions of NRC Management Directive 3.8 (Vol. 3, Part 1) and
NRC Handbook 3.8 (Parts I-IV) regarding publication in refereed
scientific and engineering journals or dissemination to the public
of any information, oral or written, concerning the work performed
under this contract. Failure to comply with this clause shall be
grounds for termination of this contract.
(b) The principal investigator(s)/contractor may publish the
results of this work in refereed scientific and engineering journals
or in open literature and present papers at public or association
meetings at interim stages of work, in addition to submitting to NRC
the final reports and other deliverables required under this
contract. However, such publication and papers shall focus on
advances in science and technology and minimize conclusions and/or
recommendations which may have regulatory implications.
(c) The principal investigator(s) shall coordinate all such
publications with, and transmit a copy of the proposed article or
paper to, the NRC Contracting Officer or Project Officer, prior to
publication. The NRC agrees to review and provide comments within
thirty (30) days after receipt of a proposed publication. However,
in those cases where the information to be published is subject to
Commission approval, has not been ruled upon, or disapproved by the
Commission, the NRC reserves the right to disapprove or delay the
publication. Further, if the NRC disagrees with the proposed
publication for any reason, it reserves the right to require that
any publication not identify the NRC's sponsorship of the work and
that any associated publication costs shall be borne by the
contractor.
(End of Clause)
2052.235-71 Safety, Health, and Fire Protection.
As prescribed in 2035.70(a)(2), the contracting officer shall
insert the following clause in applicable solicitations and contracts
for research and development by private contractors and universities
and for other technical services as appropriate:
Safety, Health, and Fire Protection (Jan 1993)
The contractor shall take all reasonable precautions in the
performance of the work under this contract to protect the health
and safety of its employees and of members of the public, including
NRC employees and contractor personnel, and to minimize danger from
all hazards to life and property and shall comply with all
applicable health, safety, and fire protection regulations and
requirements (including reporting requirements) of the Commission
and the Department of Labor. In the event that the contractor fails
to comply with these regulations or requirements, the contracting
officer may, without prejudice to any other legal or contractual
rights of the Commission, issue an order stopping all or any part of
the work; thereafter, a start work order for resumption of 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, this
type of work stoppage.
(End of Clause)
2052.242-70 Resolving differing professional views.
As prescribed in 2042.570-1, the contracting officer shall insert
the following clause in the body of cost reimbursement solicitations
and contracts for professional services, as appropriate. This clause
may not be altered by the contracting officer.
Resolving NRC Contractor Differing Professional Views (DPVs) (Date)
(a) The Nuclear Regulatory Commission's (NRC) policy is to
support the contractor's expression of professional health and
safety related concerns associated with the contractor's work for
NRC that may differ from a prevailing NRC staff view, disagree with
an NRC decision or policy position, or take issue with proposed or
established agency practices. An occasion may arise when an NRC
contractor, contractor's personnel, or subcontractor personnel
believes that a conscientious expression of a competent judgment is
required to document
[[Page 67752]]
such concerns on matters directly associated with its performance of
the contract. The NRC's policy is to support these instances as
Differing Professional Views (DPVs).
(b) The procedure that will be used provides for the expression
and resolution of differing professional views (DPVs) of health and
safety related concerns associated with the mission of the agency by
NRC contractors, contractor personnel or subcontractor personnel on
matters directly associated with its performance of the contract.
This procedure may be found in Attachments to this document. The
contractor shall provide a copy of the NRC DPV procedure to all of
its employees performing under this contract and to all
subcontractors who shall, in turn, provide a copy of the procedure
to its employees. NOTE: The prime contractor or subcontractor shall
submit all DPV's received but need not endorse them.
(End of Clause)
2052.242-71 Procedures for resolving differing professional views.
As prescribed in 2042.570-2(b), the contracting officer shall
include the following clause as an attachment to cost reimbursement
solicitations and contracts for professional services, as appropriate.
This clause may not be altered by the contracting officer.
Procedures for Resolving NRC Contractor Differing Professional
Views (DPVs) (Date)
(a) The following procedure provides for the expression and
resolution of differing professional views (DPVs) of health and
safety related concerns of NRC contractors and contractor personnel
on matters connected to the subject of the contract. Subcontractor
DPVs shall be submitted through the prime contractor. The prime
contractor or subcontractor shall submit all DPV's received but need
not endorse them.
(b) The NRC may authorize up to eight reimbursable hours for the
contractor to document in writing a DPV by the contractor, the
contractor's personnel, or subcontractor personnel. The contractor
shall not be entitled to any compensation for effort on a DPV which
exceeds the above-specified eight hour limit.
(c) Prior to incurring costs to document a DPV, the contractor
shall first determine whether there are sufficient funds obligated
under the contract which are available to cover the costs of writing
a DPV. In the event that there are insufficient obligated funds
under the contract, the contractor shall first request the NRC
contracting officer for additional funding to cover the costs of
preparing the DPV and authorization to proceed.
(d) Contract funds shall not be authorized to document an
allegation where the use of this NRC contractor DPV process is
inappropriate. Examples of such instances are: allegations of
wrongdoing which should be addressed directly to the NRC Office of
the Inspector General (OIG), issues submitted anonymously, or issues
raised which have already been considered, addressed, or rejected,
absent significant new information. Note that this procedure does
not provide anonymity. Individuals desiring anonymity should contact
the NRC OIG or submit the information under NRC's Allegation
Program, as appropriate.
(e) When required, the contractor shall initiate the DPV process
by submitting a written statement directly to the NRC Office
Director or Regional Administrator responsible for the contract,
with a copy to the Contracting Officer, Division of Contracts and
Property Management, Office of Administration. Each DPV submitted
will be evaluated on its own merits.
(f) The DPV, while being brief, shall contain the following as
it relates to the subject matter of the contract:
(1) A summary of the prevailing NRC view, existing NRC decision
or stated position, or the proposed or established NRC practice.
(2) A description of the submitter's views and how they differ
from any of the above items.
(3) The rationale for the submitter's views, including an
assessment based on risk, safety and cost benefit considerations of
the consequences should the submitter's position not be adopted by
NRC.
(g) The Office Director or Regional Administrator will
immediately forward the submittal to the NRC DPV Review Panel and
acknowledge receipt of the DPV, ordinarily within five (5) calendar
days of receipt.
(h) The panel will normally review the DPV within seven calendar
days of receipt to determine whether enough information has been
supplied to undertake a detailed review of the issue. Typically,
within 30 calendar days of receipt of the necessary information to
begin a review, the panel will provide a written report of its
findings to the Office Director or Regional Administrator and to the
Contracting Officer, which includes a recommended course of action.
(i) The Office Director or Regional Administrator will consider
the DPV Review Panel's report, make a decision on the DPV and
provide a written decision to the contractor and the Contracting
Officer normally within seven calendar days after receipt of the
panel's recommendation.
(j) Subsequent to the decision made regarding the DPV Review
Panel's report, a summary of the issue and its disposition will be
included in the NRC Weekly Information Report submitted by the
Office Director. The DPV file will be retained in the Office or
Region for a minimum of one year thereafter. For purposes of the
contract, the DPV shall be considered a deliverable under the
contract. Based upon the Office Director or Regional Administrator's
report, the matter will be closed.
(End of Clause)
Dated at Rockville, Maryland this 9th day of November, 1998.
For the Nuclear Regulatory Commission.
William D. Travers,
Executive Director for Operations.
[FR Doc. 98-32253 Filed 12-7-98; 8:45 am]
BILLING CODE 7590-01-P