[Federal Register Volume 69, Number 240 (Wednesday, December 15, 2004)]
[Rules and Regulations]
[Pages 75001-75004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27418]


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DEPARTMENT OF ENERGY

48 CFR Parts 909 and 970

RIN 1991-AB64


Acquisition Regulation: Work for Others

AGENCY: Department of Energy.

ACTION: Interim final rule with request for comment.

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SUMMARY: The Department of Energy (DOE) is amending the Department of 
Energy Acquisition Regulation (DEAR) to provide policy and procedures 
regarding work for non-DOE entities performed by DOE contractors who 
manage and operate DOE-owned or -leased facilities. The regulation is 
also being revised to make an administrative change concerning 
debarment and suspension officials. The contractor requirements 
previously found in DOE Order 481.1B, ``Work for Others (Non-Department 
of Energy Funded Work),'' are being relocated to the DEAR to ensure 
that authorization to perform non-DOE funded work is provided by DOE in 
a consistent and uniform manner. No other change in the DOE's Work for 
Others policy is being made.

DATES: Effective Date: January 14, 2005.
    Comment Date: Interested persons may submit comments on this 
interim final rule by January 14, 2005.

ADDRESSES: This rule is available and comments may be submitted on line 
at http://www.regulations.gov. Comments may be submitted electronically 
to [email protected]. Comments may be mailed to Richard 
Langston, Mail Code ME-61, U.S. Department of Energy, 1000 Independence 
Avenue, SW., Washington, DC 20585 or phone (202) 287-1339.

FOR FURTHER INFORMATION CONTACT: Andrew Geary, U.S. Department of 
Energy, Office of Procurement and Assistance Management, ME-62, 1000 
Independence Avenue, SW., Washington, DC 20585 at (202) 287-1507 or 
electronically at [email protected].

SUPPLEMENTARY INFORMATION:
I. Background.
II. Section-by-Section Analysis.
III. Procedural Requirements.
    A. Review Under Executive Order 12866.
    B. Review Under Executive Order 12988.
    C. Review Under the Regulatory Flexibility Act.
    D. Review Under the Paperwork Reduction Act.
    E. Review Under the National Environmental Policy Act.
    F. Review Under Executive Order 13132.
    G. Review Under the Unfunded Mandates Reform Act of 1995.
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999.
    I. Review Under the Small Business Regulatory Enforcement 
Fairness Act of 1996.
    J. Review Under Executive Order 13211.
    K. Review Under the Treasury and General Government 
Appropriations Act, 2001.
    L. Approval by the Office of the Secretary of Energy.

I. Background

    DOE, including the National Nuclear Security Administration (NNSA), 
owns or sponsors major scientific research and development, and 
manufacturing facilities throughout the United States that are managed 
and operated by contractors. DOE permits these contractors to perform 
non-DOE work for other Federal agencies and non-Federal entities on a 
fully reimbursable basis when such work is authorized by law and the 
work requires DOE's unique technologies and capabilities.
    Performance of this work is conducted under DOE's Work for Others 
Program. The Work for Others Program makes available for use special or 
unique services or facilities that are otherwise unavailable in the 
private sector. The Work for Others Program requires that funding for 
Work for Others projects be provided by a non-DOE sponsor. Performance 
of this work has allowed DOE and its management and operating 
contractors to assist other Federal agencies in accomplishing their 
missions and has provided assistance to non-Federal entities to solve 
complex and challenging technological issues.
    DOE allows such work to be conducted by contractors provided that:
    (1) DOE's laboratories and facilities do not compete directly with 
the domestic private sector;
    (2) The acceptance and performance of work complies with applicable 
statutes and regulations;
    (3) Work is fully funded by the non-DOE entity requesting work to 
be performed; and,
    (4) The work to be performed is consistent with or complimentary to 
DOE missions and the missions of the facility where the work will be 
performed.
    The purpose of this rule is to establish a uniform contract clause 
that will provide authority to DOE's management and operating 
contractors to perform fully reimbursable work under the terms and 
conditions set forth in their contracts.
    This rule amends Part 970 of the DEAR which governs DOE contracts 
with entities that manage and operate DOE-owned or -leased facilities. 
The rule applies to contracts when the contractor performs fully 
reimbursable

[[Page 75002]]

work for other Federal agencies and non-Federal entities and does not 
relate to the expenditure of DOE's appropriated funds. Neither 5 U.S.C. 
553 nor 41 U.S.C. 418b require publication of a notice of proposed 
rulemaking prior to the publication of today's final rule. 
Nevertheless, comments on today's rule will be accepted. DOE will 
consider all comments and, if appropriate, may modify the rule.
    DOE is also making a technical amendment to 48 CFR Part 909 to 
identify an NNSA official as the debarment and suspension official for 
NNSA contracts.

II. Section-by-Section Analysis

    DOE is amending the DEAR as follows:
    1. Section 909.403 is being amended to identify a separate 
debarment and suspension official for contracts awarded by the NNSA.
    2. Section 970.1707 is being added to provide information regarding 
DOE's Work for Others Program including:
    (i) A general definition of the program and its activities;
    (ii) The purpose for the program;
    (iii) Specified requirements that must be satisfied prior to the 
acceptance and performance of work for others activities; and,
    (iv) An instruction directing use of a uniform clause.
    3. A standard contract clause is added at 970.5217-1 for use in DOE 
contracts to authorize the performance of work for non-DOE entities by 
DOE management and operating contractors and to establish specific 
conditions under which this work can be approved and performed. These 
conditions include ensuring that:
    (i) DOE's laboratories and facilities do not compete directly with 
the domestic private sector;
    (ii) The acceptance and performance of work complies with 
applicable statutes and regulations;
    (iii) Work is fully funded by the non-DOE entity requesting work to 
be performed; and,
    (iv) The work to be performed is consistent with or complimentary 
to DOE missions and the missions of the facility where the work will be 
performed.

III. Procedural Requirements

A. Review Under Executive Order 12866

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

B. Review Under Executive Order 12988

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

C. Review Under the Regulatory Flexibility Act

    This rule has been reviewed under the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., that requires preparation of an initial regulatory 
flexibility analysis for any rule that by law must be proposed for 
public comment and that is likely to have significant economic impact 
on a substantial number of small entities. Neither 5 U.S.C. 553 nor 41 
U.S.C. 418b requires that today's interim final rule be proposed for 
public comment. Accordingly, no regulatory flexibility analysis has 
been prepared for this rulemaking.

D. Review Under Paperwork Reduction Act

    Section 970.5217-1(g) of this rule will require contractors 
performing work for others to submit an annual report concerning such 
work. That reporting requirement is subject to review and approval of 
the OMB pursuant to the Paperwork Reduction Act, 44 U.S.C. 3105 et seq. 
As provided in OMB's regulations implementing the Act, DOE published a 
separate notice in the Federal Register, on February 27, 2004, 69 FR 
6910, inviting public comment on the collection of information, after 
which it would submit the collection of information to OMB for approval 
pursuant to 5 CFR 1320.10. The public comment period for that notice 
closed April 27, 2004, and no comments were received. OMB granted 
approval for this information collection and assigned it a clearance 
number of 1910-5125.

E. Review Under the National Environmental Policy Act

    Pursuant to the Council on Environmental Quality Regulations (40 
CFR Parts 1500-1508), DOE has established regulations for its 
compliance with the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.). Pursuant to Appendix A of Subpart D of 10 CFR 
Part 1021, DOE has determined that today's regulatory action is 
strictly procedural (Categorical Exclusion A-6). Accordingly, neither 
an environmental impact statement nor an environmental assessment is 
required.

F. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined today's rule and has 
determined that it does not preempt State law and does not have a 
substantial direct effect on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires a 
Federal agency to perform a detailed

[[Page 75003]]

assessment of costs and benefits of any rule imposing a Federal Mandate 
with costs to State, local or tribal governments, or to the private 
sector, of $100 million or more in any single year. This rulemaking 
does not impose a Federal mandate on State, local or tribal governments 
or on the private sector.

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

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rule or policy that may affect 
family well-being. This rule will have no impact on family well being.

I. Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996

    As required by 5 U.S.C. 801, DOE will report to Congress 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(3).

J. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, 
May 22, 2001), requires Federal agencies to prepare and submit to the 
OIRA a Statement of Energy Effects for any significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgates or is expected to lead to promulgation of a final 
rule, and that: (1) Is a significant regulatory action under Executive 
Order 12866, or any successor order; and (2) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    Today's rule is not a significant energy action. Accordingly, DOE 
has not prepared a Statement of Energy Effects.

K. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001, 44 
U.S.C. 3516, note, provides for agencies to review most disseminations 
of information to the public under implementing guidelines established 
by each agency pursuant to general guidelines issued by OMB. OMB's 
guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's 
guidelines were published at 67 FR 62446 (October 7, 2002). DOE has 
reviewed today's notice under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

L. Approval by the Office of the Secretary of Energy

    The Office of the Secretary of Energy has approved issuance of this 
interim final rule.

List of Subjects in 48 CFR Parts 909 and 970

    Government procurement.

    Issued in Washington, DC, on December 8, 2004.
Richard H. Hopf,
Director, Office of Procurement and Assistance Management, Office of 
Management, Budget and Evaluation/Chief Financial Officer, Department 
of Energy.
Robert C. Braden, Jr.,
Director, Office of Acquisition and Supply Management, National Nuclear 
Security Administration.


0
For the reasons set forth in the preamble, Chapter 9 of Title 48 of the 
Code of Federal Regulations is amended as set forth below:

PART 909--CONTRACTOR QUALIFICATIONS

0
1. The authority citation for part 909 continues to read as follows:

    Authority: 42 U.S.C. 7101 et seq.; 41 U.S.C. 418b; 50 U.S.C. 
2401 et seq.

0
2. Section 909.403 is revised to read as follows:

909.403  Definitions.

    In addition to the definitions set forth at FAR 9.403, the 
following definitions apply to this subpart:
    Debarring Official. The Debarring Official for DOE contracts is the 
Director, Office of Procurement and Assistance Management, DOE, or 
designee. The Debarring Official for NNSA contracts is the Director, 
Office of Acquisition and Supply Management, NNSA, or designee.
    Suspending Official. The Suspending Official for DOE contracts is 
the Director, Office of Procurement and Assistance Management, DOE, or 
designee. The Suspending Official for NNSA contracts is the Director, 
Office of Acquisition and Supply Management, NNSA, or designee.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

0
3. The authority citation for part 970 continues to read as follows:

    Authority: 42 U.S.C. 2201, 2282a, 2282b, 2282c; 42 U.S.C. 7101 
et seq.; 41 U.S.C. 418b; 50 U.S.C. 2401 et seq.


0
4. Subpart 970.17 is amended by adding sections 970.1707 through 
970.1707-4 to read as follows:

Subpart 970.17--Special Contracting Methods


970.1707  Work for others.


970.1707-1  Scope.

    Pursuant to Section 33 of the Atomic Energy Act of 1954, as amended 
(42 U.S.C. 2053), DOE is authorized to make its facilities available to 
other Federal and non-Federal entities (sponsors) for the conduct of 
certain research and development and training activities. Pursuant to 
the Economy Act of 1932, as amended (31 U.S.C. 1535), or other 
applicable authority, other Federal entities may request DOE to conduct 
work. DOE has implemented these and other statutory authorities and 
requirements in its Work for Others Program. DOE's internal procedures 
governing the Work for Others Program are described in DOE Order 
481.1C, WORK FOR OTHERS (NON-DEPARTMENT OF ENERGY FUNDED WORK).


970.1707-2  Purpose.

    The purpose of DOE's Work for Others Program is to:
    (a) Provide access for non-DOE entities to highly specialized or 
unique DOE facilities, services, or technical expertise, when private 
facilities are inadequate;
    (b) Increase research and development interactions among DOE's 
management and operating contractors and industry in order to transfer 
DOE technologies to industry for further development or 
commercialization;
    (c) Maintain facility core competencies;
    (d) Enhance the science and technology capabilities at DOE 
facilities; and,
    (e) Provide assistance to other Federal agencies and non-Federal 
entities in accomplishing goals that may otherwise be unattainable and 
to avoid the possible duplication of effort at Federal facilities.


970.1707-3  Terms governing work for others.

    (a) DOE's internal review and approval procedural requirements for

[[Page 75004]]

individual work for others agreements are set forth in DOE Order 481.1C 
(as supplemented by DOE Manual 481.1-1A for agreements with non-Federal 
entities), which may be amended from time to time, and such other 
guidance as may be issued by DOE. Contracting officers must ensure that 
the contractor's procedures for its operations are consistent with 
DOE's procedural requirements.
    (b) A contractor may perform work for other Federal or non-Federal 
sponsors only if:
    (1) The contractor is authorized by contract clause to perform such 
work;
    (2) The work is not directly funded by DOE appropriations and is 
fully reimbursed by the sponsor;
    (3) The DOE Contracting Officer or authorized designee approves the 
work in advance; and,
    (4) The work is performed in accordance with DOE policies, 
procedures and directives applicable to the contract.
    (c) Contracting officers must ensure that the requesting Federal 
entity certifies that:
    (1) The interagency agreement with DOE complies with the Economy 
Act of 1932 (31 U.S.C. 1535) and other applicable statutory authorities 
and 48 CFR 6.002, which prohibits the use of an Interagency Agreement 
for the purpose of avoiding the competition requirements of the Federal 
Acquisition Regulation; and,
    (2) The work to be performed will not place the DOE contractor in 
direct competition with the domestic private sector.


970.1707-4  Contract clause.

    Insert the clause at 970.5217-1, Work for Others Program (Non-DOE 
Funded Work), in any contract that may involve work under the Work for 
Others Program, pursuant to 970.1707-3(b).

0
5. Subpart 970.52 is amended by adding section 970.5217-1 to read as 
follows:


970.5217-1  Work for Others Program.

    As prescribed in 48 CFR (DEAR) 970.1707-4 insert the following 
clause:

WORK FOR OTHERS PROGRAM (NON-DOE FUNDED WORK) (JAN 2005)

    (a) Authority to Perform Work for Others. Pursuant to the 
Economy Act of 1932, as amended (31 U.S.C. 1535), and the Atomic 
Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.) or other 
applicable authority, the Contractor may perform work for non-DOE 
entities (sponsors) on a fully reimbursable basis in accordance with 
this clause.
    (b) Contractor's Implementation. The Contractor must draft, 
implement, and maintain formal policies, practices, and procedures 
in accordance with this clause, which must be submitted to the 
Contracting Officer for review and approval.
    (c) Conditions of Participation in Work for Others Program. The 
Contractor:
    (1) Must not perform Work for Others activities that would place 
it in direct competition with the domestic private sector;
    (2) Must not respond to a request for proposals or any other 
solicitation from another Federal agency or non-Federal organization 
that involves direct comparative competition, either as an offeror, 
team member, or subcontractor to an offeror; however, the Contractor 
may, following notification to the Contracting Officer, respond to 
Broad Agency Announcements, Financial Assistance solicitations, and 
similar solicitations from another Federal Agency or non-Federal 
organizations when the selection is based on merit or peer review, 
the work involves basic or applied research to further advance 
scientific knowledge or understanding, and a response does not 
result in direct, comparative competition;
    (3) Must not commence work on any Work for Others activity until 
a Work for Others proposal package has been approved by the DOE 
Contracting Officer or designated representative;
    (4) Must not incur project costs until receipt of DOE 
notification that a budgetary resource is available for the project, 
except as provided in 48 CFR 970.5232-6;
    (5) Must ensure that all costs associated with the performance 
of the work, including specifically all DOE direct costs and 
applicable surcharges, are included in any Work for Others proposal;
    (6) Must maintain records for the accumulation of costs and the 
billing of such work to ensure that DOE's appropriated funds are not 
used in support of Work for Others activities and to provide an 
accounting of the expenditures to DOE and the sponsor upon request;
    (7) Must perform all Work for Others projects in accordance with 
the standards, policies, and procedures that apply to performance 
under this contract, including but not limited to environmental, 
safety and health, security, safeguards and classification 
procedures, and human and animal research regulations;
    (8) May subcontract portion(s) of a Work for Others project; 
however, the Contractor must select the subcontractor and the work 
to be subcontracted. Any subcontracted work must be in direct 
support of the DOE contractor's performance as defined in the DOE 
approved work for others proposal package; and,
    (9) Must maintain a summary listing of project information for 
each active Work for Others project, consisting of:
    (i) Sponsoring agency;
    (ii) Total estimated costs;
    (iii) Project title and description;
    (iv) Project point of contact; and,
    (v) Estimated start and completion dates.
    (d) Negotiation and Execution of Work for Others Agreement. (1) 
When delegated authority by the Contracting Officer, the Contractor 
may negotiate the terms and conditions that will govern the 
performance of a specific Work for Others project. Such terms and 
conditions must be consistent with the terms, conditions, and 
requirements of the Contractor's contract with DOE. The Contractor 
may use DOE-approved contract terms and conditions as delineated in 
DOE Manual 481.1-1A or terms and conditions previously approved by 
the responsible Contracting Officer or authorized designee for 
agreements with non-Federal entities. The Contractor must not hold 
itself out as representing DOE when negotiating the proposed Work 
for Others agreement.
    (2) The Contractor must submit all Work for Others agreements to 
the DOE Contracting Officer for DOE review and approval. The 
Contractor may not execute any proposed agreement until it has 
received notice of DOE approval.
    (e) Preparation of Project Proposals. When the Contractor 
proposes to perform Work for Others activities pursuant to this 
clause, it may assist the project sponsor in the preparation of 
project proposal packages including the preparation of cost 
estimates.
    (f) Work for Others Appraisals. DOE may conduct periodic 
appraisals of the Contractor's compliance with its Work for Others 
Program policies, practices and procedures. The Contractor must 
provide facilities and other support in conjunction with such 
appraisals as directed by the Contracting Officer or authorized 
designee.
    (g) Annual Work for Others Report. The Contractor must provide 
assistance as required by the Contracting Officer or authorized 
designee in the preparation of a DOE Annual Summary Report of Work 
for Others Activities under the contract.

[FR Doc. 04-27418 Filed 12-14-04; 8:45 am]
BILLING CODE 6450-01-P