Proposed Rule2023-16875
Department of Energy Acquisition Regulation (DEAR)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 26, 2023
Issuing agencies
Energy Department
Abstract
The Department of Energy (DOE) proposes a comprehensive revision of its Acquisition Regulation in order to update and streamline the policies, procedures, provisions and clauses that are applicable to its contracts. This rulemaking proposes to update or eliminate coverage that is obsolete or that unnecessarily duplicates the Federal Acquisition Regulation (FAR) and retain only that coverage which either implements or supplements the FAR for the award and administration of the DOE's contracts. The rule proposes the addition of several new clauses as well as amendments to several existing clauses, which will promote more uniform application of the DOE's contract award and administration policies.
Full Text
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<title>Federal Register, Volume 88 Issue 206 (Thursday, October 26, 2023)</title>
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[Federal Register Volume 88, Number 206 (Thursday, October 26, 2023)]
[Proposed Rules]
[Pages 73644-73749]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16875]
[[Page 73643]]
Vol. 88
Thursday,
No. 206
October 26, 2023
Part II
Department of Energy
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48 CFR Chapter 9
Department of Energy Acquisition Regulation (DEAR); Proposed Rule
Federal Register / Vol. 88 , No. 206 / Thursday, October 26, 2023 /
Proposed Rules
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DEPARTMENT OF ENERGY
48 CFR Chapter 9
RIN 1991-AC17
Department of Energy Acquisition Regulation (DEAR)
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking (NOPR) and request for comments.
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SUMMARY: The Department of Energy (DOE) proposes a comprehensive
revision of its Acquisition Regulation in order to update and
streamline the policies, procedures, provisions and clauses that are
applicable to its contracts. This rulemaking proposes to update or
eliminate coverage that is obsolete or that unnecessarily duplicates
the Federal Acquisition Regulation (FAR) and retain only that coverage
which either implements or supplements the FAR for the award and
administration of the DOE's contracts. The rule proposes the addition
of several new clauses as well as amendments to several existing
clauses, which will promote more uniform application of the DOE's
contract award and administration policies.
DATES: DOE will accept written comments regarding this notice of
proposed rulemaking no later than December 26, 2023.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the
instructions for submitting comments. Alternatively, interested persons
may submit comments, identified by ``DEAR Rewrite and RIN 1991-AC17'',
by any of the following methods:
[ssquf] Email to: <a href="/cdn-cgi/l/email-protection#5e1a1b1f0c2c2b323b333f353730391e362f703a313b70393128"><span class="__cf_email__" data-cfemail="672322263515120b020a060c0e0900270f164903080249000811">[email protected]</span></a>. Include DEAR Rewrite
and RIN 1991-AC17 in the subject line of the message.
[ssquf] Mail to: U.S. Department of Energy, Office of Acquisition
Management, MA-611, 1000 Independence Avenue SW, Washington, DC 20585.
However, comments by email are encouraged.
Docket
The docket, which includes Federal Register notices, comments, and
other supporting documents/materials, is available for review at
<a href="http://www.regulations.gov">www.regulations.gov</a>. All documents in the docket are listed in the
<a href="http://www.regulations.gov">www.regulations.gov</a> index. However, some documents listed in the index,
such as those containing information that is exempt from public
disclosure, may not be publicly available.
The docket web page can be found at the <a href="http://www.regulations.gov">www.regulations.gov</a> web
page associated with RIN 1991-AC17. The docket web page contains simple
instructions on how to access all documents, including public comments,
in the docket. See section III, Public Participation, for information
on how to submit comments through <a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Mr. Jason Taylor, U.S. Department of
Energy, Office of Management, Office of Acquisition Management at (202)
287-1560 or by email at <a href="/cdn-cgi/l/email-protection#c8a2a9bba7a6e6bca9b1a4a7ba88a0b9e6aca7ade6afa7be"><span class="__cf_email__" data-cfemail="cba1aab8a4a5e5bfaab2a7a4b98ba3bae5afa4aee5aca4bd">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Section-by-Section Analysis
III. Public Participation
IV. Regulatory Review
A. Review Under Executive Orders 12866 and 13563
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Review Under the National Environmental Policy Act
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under Executive Order 13211
V. Approval of the Office of the Secretary
I. Background
The FAR (48 CFR chapter 1) is the primary regulation for use by all
executive agencies in their acquisition of supplies and services with
appropriated funds. The Office of Federal Procurement Policy Act (OFPP
Act), 41 U.S.C. 1702, authorizes the issuance of agency-specific
acquisition regulations that implement or supplement the FAR. Pursuant
to this authority, DOE and the National Nuclear Security Administration
(NNSA) promulgated the Department of Energy Acquisition Regulation
(DEAR), set forth at 48 CFR chapter 9, to provide uniform acquisition
policies and procedures for DOE and NNSA. This proposed rule to update
the DEAR is issued under that same authority.
Over the past decade, DOE has worked to improve the way it conducts
business with its contractors by strengthening contract management
policies and practices and implementing new processes throughout the
Department complex. In the spirit of alleviating unnecessary regulatory
burdens while remaining prudent stewards of taxpayer resources, DOE
undertook a review of its acquisition framework, including the DEAR.
As a result of that process, DOE has determined that the proposed
amendments are necessary to update or remove obsolete provisions,
incorporate class deviations, streamline policies and procedures where
appropriate, and implement ten new clauses which will standardize
clause language and eliminate the need for various local clauses in
current use. Through this proposed rule, DOE aims to amend the DEAR to
correct inconsistencies, remove provisions which unnecessarily
duplicate coverage contained in the FAR, delete outdated information,
and renumber DEAR provisions where required, in order to comport with
the FAR numbering. The proposed rule includes revisions to 48 CFR parts
901, 902, 903, 904, 908, 909, 912, 915, 916, 917, 919, 922, 923, 925,
926, 927, 931, 932, 933, 935, 936, 941, 942, 945, 951, 952, and 970.
II. Section-by-Section Analysis
<bullet> Section 901.103: Currently this section provides that the
DEAR is issued and amended by the Senior Procurement Executive (SPE)
and the National Nuclear Security Administration (NNSA). DOE proposes
to amend this section to clarify that (1) references throughout the
DEAR to the SPE refers to both the DOE SPE and the NNSA SPE, unless
otherwise indicated; (2) the SPEs may approve deviations to the DEAR
both together and individually; and (3) except for those authorities
designated as non-delegable, the SPEs are delegated those authorities
assigned to the Agency Head in the FAR.
<bullet> Section 901.301-70: This section states that DOE will
maintain an Acquisition Guide. DOE proposes to redesignate this section
as 901.301-70 and remove the paragraph designation to conform to
standard CFR formatting. DOE proposes to revise the newly redesignated
section to update the website address to access the Acquisition Guide.
<bullet> Subpart 901.4: DOE proposes to add this new subpart to
address deviations from the DEAR. The new subpart consists of section
901.401, which provides a definition for what constitutes a deviation
from the DEAR; and sections 901.403 and 901.404, which provide
instructions to acquisition personnel for preparing and submitting
requests for individual deviations and class deviations respectively.
[[Page 73645]]
<bullet> Section 901.602-3: DOE proposes to amend this section to
increase the threshold for the ratification authority delegated to
heads of contracting activity (HCAs) for unauthorized commitments of
$250,000 or less. A threshold of $25,000 has been in the DEAR for
decades and needs to be updated to account for inflation and associated
increases in the Simplified Acquisition Threshold (SAT), which was the
original basis for the $25,000 threshold.
<bullet> Sections 901.603-1 and 901.603-70: DOE proposes to amend
these sections to update references to two DOE orders.
<bullet> Section 902.101: DOE proposes to amend the definition of
Senior Procurement Executive to reflect a change in the name of the
office held by the DOE SPE and the NNSA SPE.
<bullet> Section 903.104-7: DOE proposes to amend this section to
allow reviews to be conducted by the individual one level above the
contracting officer. The regulations at FAR 3.104-7 provide for higher-
level review and concurrence within DOE by an individual designated in
accordance with agency procedures. For violations or possible
violations, the Department decided that this review and concurrence was
better undertaken by those with procurement authority and not legal
counsel whose role is better aligned with providing advice to those
conducting the review and concurrence. Nothing in these changes
prevents access to counsel by those with procurement authority.
<bullet> Section 903.1003: DOE proposes to add this new section in
order to supplement the FAR subpart 3.10 coverage of Contractor Code of
Business Ethics and Conduct. The amendatory language articulates the
need for contractors to identify themselves, particularly when
communicating on behalf of DOE, to ensure that all parties know the
status of individuals as contractor personnel.
<bullet> Section 903.1004: DOE proposes to amend this section to
prescribe a new clause at 48 CFR 952.203-1, Identification of
Contractor Employees, for all solicitations and contracts for services
over the micro-purchase threshold. This clause requires contractors to
use standard measures to ensure that contractors and their employees
properly identify themselves as contractors in all DOE internal and
external communications so that all parties are aware of their status
as contractor personnel. The proposed rule also makes minor editorial
changes to the content of the section for the purpose of improving
clarity and readability and updates the website address.
<bullet> Section 904.401: DOE proposes to amend this section to (1)
revise the definition of ``access authorization'' by including the
citation to special nuclear material under the Atomic Energy Act,
Executive Order 12968, and 10 CFR part 710 for more specificity; (2)
add a definition of ``Counterintelligence'' previously located in part
970 but proposed to be relocated here because the term is included in
revisions to other sections in this part; and (3) amend the definition
of ``Classified Information'' for clarity to also include ``Classified
National Security Information'' and ``Transclassified Foreign Nuclear
Information'', and to update the reference to Executive Order 12958
with Executive Order 13526 which revoked and replaced Executive Order
12958.
<bullet> Section 904.402: DOE proposes to amend this section to
reorganize content to conform to the FAR numbering and to add a
reference to the DOE Organization Act of 1977, as amended and update
the reference to Executive Order 12958 with Executive Order 13526 which
revoked and replaced Executive Order 12958. DOE also proposes to
relocate text about DOE's counterintelligence program from section
970.0404-2(b). Part 970 primarily concerns management and operating
(M&O) contracts, but counterintelligence issues are equally applicable
to M&O and non-M&O contracts. Additionally, revisions are proposed to
the paragraph on conditional payment of fee in order to align with
other changes proposed to the conditional payment of fee clauses in
parts 952 and 970 which are discussed in the appropriate places below.
Finally, DOE proposes to add a paragraph that points to part 927 for
policies and procedures for safeguarding classified information in
patent applications and patents.
<bullet> Section 904.404: DOE proposes to amend this section to:
(1) revise the prescription for the ``Security'' clause at section
952.204-2 to clarify that it is also required to be included in
contracts awarded under simplified acquisition procedures, as well as
National Security Program contracts under which access to proscribed
information is required; (2) make minor editorial changes and add the
title to DOE Order 142.3 to the paragraph that discusses the
``Sensitive Foreign Nation Controls'' clause at section 952.204-71; (3)
delete the prescription for the clause at section 952.204-76,
``Conditional Payment of Fee or Profit--Safeguarding Restricted Data
and Other Classified Information and Protection of Worker Safety and
Health,'' because that clause, along with the clauses at sections
952.223-76 and 952.223-77, is proposed for removal with the content of
those three clauses consolidated into a single new clause at section
952.242-71, which is prescribed elsewhere; and (4) add a prescription
for the counterintelligence clause proposed to be located at section
952.204-74 (and previously at section 970.5204-1) because DOE has
determined that counterintelligence policy is appropriate for both M&O
and non-M&O contracts.
<bullet> Section 904.7004: DOE proposes to amend this section in
paragraph (a) to update the name of the office that the Contracting
Officer must consult in connection with ``Foreign Ownership, Control or
Influence (FOCI)'' reviews prior to determining that award or continued
performance of a contract by a contractor will not pose an undue risk
to the common defense and security. The reference to the DOE Office of
Safeguards and Security is proposed to be changed to the DOE Office of
Environment, Health, Safety and Security.
<bullet> Section 904.7102: DOE proposes editorial revisions to
streamline this section, in paragraph (e), by removing the following
extraneous text: ``that has been developed by the Safeguards and
Security Lead Responsible Office at the contracting activity.''
<bullet> Subpart 904.74: DOE proposes to add this new subpart on
DOE Directives. The proposed subpart consists of section 904.7400,
which provides general requirements and information, and section
904.7401, which prescribes a new DOE Directives clause at 48 CFR
952.204-78, along with background. Although contractor requirements
documents (CRDs) have been integrated into non-M&O contracts for a long
time, adding the general information section, the new clause
prescription, and the new clause will clarify the process of
integrating the requirements of DOE Directives into non-M&O contracts
on a bilateral basis.
<bullet> Subpart 908.71: DOE proposes to amend subpart 908.71 in
order to remove some out-of-date procedures for handling special items.
Specifically, sections 908.7103, Office machines; 908.7115, Forms;
908.7116, Electronic data processing tape; and 908.7117, Tabulating
machine cards, are proposed for removal.
<bullet> Section 909.403: DOE proposes to revise this section to
reflect a change in the name of the offices held by the individuals
designated as the DOE and NNSA Debarring Official and Suspending
Official.
[[Page 73646]]
<bullet> Section 909.405: DOE proposes to revise this section to
replace references to the now defunct Excluded Parties List System
(EPLS) with the new System for Award Management (SAM).
<bullet> Section 909.407-3: DOE proposes to amend this section in
paragraph (e)(1)(vii) to replace a reference to the now defunct EPLS
with the new SAM.
<bullet> Section 909.507-2: DOE proposes to amend this section to:
(1) revise the clause prescription for section 952.209-72,
``Organizational Conflicts of Interest,'' and its Alternate I in
paragraph (a) to limit application of the clause to non-M&O contracts
since the addition of an M&O specific clause is proposed in part 970;
and (2) revise paragraph (b) to reference section 970.0906 where the
prescription for the new M&O specific clause is proposed to be located.
<bullet> Section 912.301: DOE proposes to add a new section 912.301
to clarify those DEAR clauses that are also required to be included in
solicitations and contracts for the acquisition of commercial items, in
accordance with 48 CFR 12.301(f).
<bullet> Section 915.404-4-70: DOE proposes to revise this section
to clarify that DOE's structured profit and fee system for non-
management and operating contracts comprises two approaches.
<bullet> Section 915.404-4-70-2: DOE proposes to revise this
section to correct the errors throughout the table in paragraph (d) by
replacing ``items 4.a. thru 4.e.'' with ``items I.a. thru I.e.''.
<bullet> Section 915.404-4-72: DOE proposes to revise paragraph (a)
of this section to update the reference to fee policy for management
and operating contracts from ``970.15404-4-8'' to ``970.1504-1-1
through 970.1504-3.''
<bullet> Section 915.408-70: DOE proposes to amend this section to
simplify the clause prescription for section 952.215-70, ``Key
Personnel,'' and make minor editorial changes.
<bullet> Section 916.307: DOE proposes to revise this section to:
(1) simplify the prescription for the DEAR ``Allowable Cost and
Payment'' clause at section 952.216-7 in paragraph (a); and (2) remove
the prescription for section 952.216-15, ``Predetermined Indirect Cost
Rates,'' because the FAR clause at 48 CFR 52.216-15 is now considered
to be adequate.
<bullet> Section 916.504: DOE proposes to revise this section to
redesignate paragraph (c) as paragraph (a)(1) to conform with the FAR
coverage at 48 CFR 16.504(a)(1) that this language supplements.
<bullet> Section 916.505: DOE proposes to revise this section to:
(1) redesignate paragraph (b)(6) as paragraph (b)(8) to conform with
the FAR coverage at 48 CFR 16.505(b)(8) that this language supplements
and update the corresponding FAR citation accordingly; and (2) update
the office name from ``Office of Procurement and Assistance
Management'' to ``Office of Acquisition Management''.
<bullet> Subpart 917.6: DOE proposes several changes to this
subpart. Editorial changes are proposed in sections 917.600(b) and
917.602(b) to remove obsolete references to ``performance-based
management contracts''. Likewise, section 917.601, which defines
``performance-based management contract'' and ``performance-based
contracting'' is also proposed to be removed. Those terms and those
references to performance-based management contracts are considered to
be unnecessary since all management and operating contracts employ, to
the maximum extent practicable, performance-based contracting concepts
and methodologies. Editorial changes are also proposed in section
917.602(c) to streamline the content of that paragraph.
<bullet> Section 917.7402: DOE proposes to revise paragraphs (b)
and (c)(4) of this section to update the referenced DOE order from DOE
Order 430.1B to the current DOE Order 430.1C.
<bullet> Subpart 919.70: DOE proposes to amend this subpart to
streamline the coverage of DOE's Mentor-Protege program. To that end,
sections 919.7001 and 919.7002 are proposed to be removed as
unnecessary. Section 919.7002 is unnecessary as these terms are
adequately defined in the FAR. Section 919.7003 is revised to: (1) add
a new paragraph (a) with content taken from the removed section
919.7001; (2) redesignate existing paragraphs (a), (b), and (c) as
paragraphs (b), (c), and (d), respectively; and (3) make minor
editorial changes. Sections 919.7004 and 919.7005 are proposed to be
removed as their contents are purely administrative. DOE intends to
issue guidance on the process in lieu of regulations. Section 919.7006
is revised to make minor editorial changes to paragraphs (a) and (b)
and add a new paragraph (c) to clarify that mentor firms may be
reimbursed for allowable developmental assistance costs for protege
firms under the contract costs. Sections 919.7007 through 919.7013 are
proposed to be removed as their contents are purely administrative. DOE
intends to issue guidance on the process in lieu of regulations.
Section 919.7014 is revised to change the prescription for the
provision at section 952.219-70 to require insertion in all
solicitations that include the clause at 48 CFR 52.219-9, ``Small
Business Subcontracting Plan,'' rather than insertion in all
solicitations with an estimated value in excess of the simplified
acquisition threshold. DOE considers this change to be appropriate
since the mentor prot[eacute]g[eacute] program is geared towards
subcontracting as a development tool.
<bullet> Section 922.101-70: DOE proposes to add this new section
to describe situations where labor policies applicable to M&O contracts
may also apply to non-M&O contracts. DOE labor policies for M&O
contracts are located at 48 CFR part 970, subpart 970.22. The policies
therein are applicable to non-M&O contracts where the contract work had
been previously performed under a DOE Management and Operating
contract; and/or the Contractor is required to employ all or part of
the former Contractor's workforce; or contracts designated by the
Senior Procurement Executive. The labor policies at 48 CFR part 970,
subpart 970.22, are reiterated here to highlight their application to
certain non-M&O contracts.
<bullet> Subpart 922.4: DOE proposes to add this new subpart with
content previously located in section 970.2204-1-1, but better placed
in part 922 since it is applicable to both non-M&O and M&O contracts.
The existing content is revised to update references to the Davis-Bacon
Act with the Construction Wage Rate Requirements Statute (40 U.S.C.
chapter 31, subchapter IV, Wage Rate Requirements (Construction)) as
currently referenced in 48 CFR 22.403-1 and to remove information that
unnecessarily duplicates content already set forth in 48 CFR 22.404
through 22.404-12.
<bullet> Section 923.002: DOE proposes to remove this section.
Paragraph (a) is removed because it conveys policy from revoked
Executive Order 13423 and duplicates coverage in the FAR. The
prescription at paragraph (b) is removed because revoked Executive
Order 13423 was the basis for that prescription and for the clause at
section 970.5223-6.
<bullet> Section 923.101: DOE proposes to redesignate this section
as section 923.170 to maintain consistency with FAR numbering and
revise the content to align with current statutory, regulatory, and
executive order requirements and to remove an out-of-date hyperlink.
<bullet> Section 923.102: DOE proposes to redesignate this section
as section 923.171 to maintain consistency with FAR numbering.
<bullet> Section 923.103: DOE proposes to redesignate this section
as section 923.172 to maintain consistency with
[[Page 73647]]
FAR numbering and revise the content to: (1) make minor editorial
changes; (2) remove the reference to Alternate I to section 952.223-78,
as that alternate is proposed to be removed as unnecessary as a result
of proposed revision to the base clause; and (3) remove prescriptions
to FAR clauses that are already prescribed in 48 CFR chapter 1, and are
not necessary to be prescribed here.
<bullet> Section 923.903: DOE proposes to revise this section to
correctly state the clause number for the FAR Environmental Management
Systems clause as ``52.223-19'', whereas the current text has ``52.223-
XX''.
<bullet> Section 923.7002: DOE proposes to revise this section to:
while retaining the current policy, state it more clearly and
succinctly; update references to reflect new locations of clauses; add
references to clause prescriptions; and update office titles.
<bullet> Section 923.7003: DOE proposes to revise this section to:
(1) in paragraph (a), update the name of the office which the
Contracting Officer is required to consult with in making a decision to
include or not include environmental, safety, and health clauses and
insert a reference to the appropriate coverage for M&O contracts; (2)
consolidate paragraphs (f) and (g) into one paragraph (f) and revise it
to state the prescription for the Conditional payment of fee clause
more clearly and succinctly and update the reference to the clause; and
(3) redesignate paragraph (h) as paragraph (g).
<bullet> Section 925.1001: DOE proposes to revise this section to
update the name of the ``Office of Procurement and Assistance
Management'' to ``Office of Acquisition Management'' and the office
name of the NNSA Deputy Associate Administrator from ``Acquisition and
Project Management'' to ``Office of Partnership and Acquisition
Services''.
<bullet> Section 926.7001: DOE proposes to revise this section to
reflect the addition of Qualified HUBZone small business concerns to
the list of Energy Policy Act 1992 target groups by the Small Business
Reauthorization Act of 1997 (Pub. L. 105-135).
<bullet> Section 926.7004: DOE proposes to revise this section to
remove the outdated reference to Standard Industrial Classification
(SIC) 8711 and add in its place a reference to the North American
Industry Classification System code 541330.
<bullet> Section 926.7005: DOE proposes to revise this section to
reorganize the content to remove the separate paragraph on subcontracts
as this content is unnecessarily duplicative of the prescriptions for
solicitation provisions and contract clauses in section 926.7007.
<bullet> Section 926.7006: DOE proposes to revise this section to
reorganize and streamline content to remove obsolete and unnecessary
reporting requirements.
<bullet> Section 926.7007: DOE proposes to revise this section in
the prescription for the clause at 952.226-72, ``Energy Policy Act
Subcontracting Goals and Reporting Requirements'' to update the dollar
threshold from $500,000 ($1M for construction) to $750,000 and ($1.5M
for construction) to conform to the FAR threshold for requiring a
subcontracting plan at 48 CFR 19.702.
<bullet> Subpart 926.71: DOE proposes to amend this subpart to: (1)
revise section 926.7101 to update the citation in the first sentence
from 42 U.S.C. 7474h to 50 U.S.C. 2704(c)(2); (2) revise section
926.7103 to make the same update to the citation in the first sentence
of paragraph (a); and (3) revise section 926.7104 to change the clause
title to add the words ``Workforce Restructuring and'' before ''
Displaced Employee Hiring Preference'' (in order to distinguish this
from hiring preferences tied to the Service Contract Act) and revise
the clause prescription to add a parenthetical that makes clear that
the clause is for both M&O and non-M&O contracts.
<bullet> Sections 927.200 and 927.201-1: The proposed rule removes
section 927.200 and adds the content of that section to section
927.201-1 to better conform with FAR numbering and section headings.
Additionally, the proposed rule broadens the requirement in section
927.201-1 to consult with Patent Counsel regarding the use of the
Patent and Copyright Infringement Liability clause, which includes the
Authorization and Consent clause referenced currently, to fully address
indemnity in contracts based on the work being performed. but instead
requires consultation regarding the use of the Patent and Copyright
Infringement Liability clause in certain situations.
<bullet> Sections 927.202, 927.202-5, and 927.206: The proposed
rule removes section 927.206, ``Refund of Royalties,'' and redesignates
sections 927.206-1, ``General,'' and 927.206-2, ``Clause for refund of
royalties,'' as new sections 927.202, ``Royalties,'' and 927.202-5,
``Solicitation provisions and contract clause,'' respectively. These
changes are proposed in order to conform to the FAR numbering and
section headings which this coverage supplements.
<bullet> Sections 927.203 and 927.203-1: The proposed rule
redesignates sections 927.207 and 927.207-1 as new sections 927.203 and
927.203-1 respectively and revises the section heading for section
927.203 (formerly section 927.207). These changes are proposed in order
to correspond with the FAR numbering and section headings which this
coverage supplements.
<bullet> Section 927.302: The proposed rule redesignates section
927.300 as section 927.302 and revises the section heading to
correspond with the FAR numbering and section headings which this
coverage supplements. The proposed rule also makes minor reorganization
and editorial changes to the content of new section 927.302 for the
purpose of improving clarity and readability.
<bullet> Section 927.302-70: The proposed rule redesignates current
section 927.302 as section 927.302-70 and revises the section heading
in order to accommodate the changes to current section 927.300
described above. In addition, a new paragraph (a) is added to include a
definition of ``background patent'' similar to the definition found in
the new Alternate I of section 952.227-13 for the purpose of improving
clarity of the regulation. Current paragraphs (b) and (c) are replaced
with a new paragraph (c) to reflect DOE's determination that the
requirement of licensing background patents should only be permitted in
certain situations approved by DOE Patent Counsel with concurrence of a
DOE program official. This policy is implemented in new section
927.303(d)(5) by moving the paragraph regarding background patents from
the clause at section 952.227-13 to an Alternate I so that it only
applies to certain contracts.
<bullet> Section 927.303: The proposed rule revises section 927.303
to correspond with the FAR numbering and to make additions to
instructions located in 48 CFR 27.303. The proposed rule adds paragraph
(a)(4) to direct the Contracting Officer to subpart 970.27 for certain
decontamination and decommissioning activities and the building and/or
operations of other DOE facilities. Additionally, 48 CFR 27.303(d)
provides that DOE will insert its specific patent rights clauses
according to agency procedures. Therefore, section 927.303(d) outlines
the use of the various patent clauses such as the clause at 48 CFR
952.227-13 or 37 CFR 401.14 depending on whether the contractor is a
large or small business or university.
[cir] DOE proposes in paragraph (d)(2) that contracts with domestic
small business firms or nonprofit organizations use the clause at 37
CFR 401.14 instead of the clause at 48 CFR 952.227-11 because DOE has
not
[[Page 73648]]
modified 48 CFR 48.952.227-11 to keep up with changes in the standard
patent clause for these entities, while 37 CFR 401.14 is regularly
updated. However, 37 CFR 401.14 has certain provisions requiring agency
implementing regulations, which DOE addresses in a prescription for new
Alternate I.
[cir] The most significant update is necessary to implement DOE's
Declaration of Exceptional Circumstance that requires contractors, at
any tier, to substantially manufacture any subject inventions in the
United States. Alternate II for domestic small business firms or
nonprofit organizations adds both the agency implementing regulations
from Alternate I and the U.S. substantial manufacturing requirements.
For 952.227-13, an Alternate II is used to implement the U.S.
manufacturing requirement, as addressed in section 927.303(d)(6).
<bullet> Section 927.304: The proposed rule revises section 927.304
to make minor editorial changes and to replace the reference to the
clause at section 952.227-11, which is proposed for revision, with the
clause at 37 CFR 401.14. The clause at section 952.227-11 is not
regularly updated while the clause at 37 CFR 401.14 does receive
regular updates.
<bullet> Subpart 927.4: The proposed rule revises the heading of
subpart 927.4 to read ``Rights in Data and Copyrights'' to conform to
the FAR heading at 48 CFR part 27, subpart 27.4, which this subpart
supplements.
<bullet> Section 927.401: The proposed rule adds section 927.401 to
provide a definition of ``technical data''. The regulations at 48 CFR
27.401 define ``data'' to include ``technical data'' and ``computer
software''. DOE wants to have a clear definition of what technical data
encompasses since it relates directly to information sent to DOE's
Office of Scientific and Technical Information.
<bullet> Sections 927.402, 927.402-1, and 927.402-2: The proposed
rule removes sections 927.402 and 927.402-1, and redesignates section
927.402-2 as section 927.402 to conform to FAR numbering, which these
sections supplement. The content of section 927.402-1 is added to new
section 927.406 and revised for clarity. Finally, DOE also proposes to
revise the introductory language of the newly redesignated section
927.402 to add a reference to scientific and technical information
(STI) because this is the term used at the Office of Scientific and
Technical Information (OSTI) where DOE's publicly available technical
data is stored.
<bullet> Section 927.403: The proposed rule removes section
927.403, which outlines when DOE Contracting Officers and Patent
Counsel make determinations as part of the acquisition and use of
technical data, and adds its content to newly added section 927.406-4
for organizational purposes.
<bullet> Sections 927.404 and 927.404-70: The proposed rule:
[cir] Redesignates section 927.404-70 as section 927.404-71 for
organizational purposes and revises the newly redesignated section to
replace the reference to 48 CFR 927.409(a) with 48 CFR 52.227-14 to
reflect changes to the prescription at 48 CFR 927.409(a);
[cir] Redesignates section 927.404 as section 927.404-70 for
organizational purposes;
[cir] Revises the newly redesignated section 927.404-70 to update
the instructions on when to use 48 CFR 52.227-14 as supplemented by
this subpart, as well as the use of 48 CFR 52.227-16; and
[cir] Relocates paragraphs (g)(4), (l), and (m) of section 927.404-
70 to portions of new section 927.406-4 and revised section 927.409.
<bullet> Sections 927.406 and 927.406-4: FAR 27.406 is for
Acquisition of data with sections 27.406-1 through 27.406-3. The
proposed rule adds section 927.406, Acquisition of data, and section
927.406-4, Acquisition and use of technical data, to conform with the
numbering and headings of the FAR, which these sections supplement.
Section 927.406-4(a) and (b) in the proposed rule address several
statutory changes that have been enacted, such as EPAct 2005 and the
DOE Energy Research and Innovation Act. EPACT mandates that DOE
maintain publicly available collection of Scientific Technical
Information funded by the agency which is achieved by the Office of
Scientific and Technical Information. DOE Energy Research and
Innovation Act has a similar mandate for DOE to maintain a public
database populated with information on unclassified research and
development projects as well as relevant literature and patents.
Additionally, the proposed rule relocates content formerly located at
section 927.402-1(b) to new section 927.406-4(c) for organizational
purposes and revises the text for clarity and to update references.
Likewise, the proposed rule relocates content formerly located at
section 927.403 to new section 927.406-4(d) for organizational
purposes. And finally, the proposed rule relocates content formerly
located at section 927.404(g)(4) and (l) to new section 927.406-4(e)
and (f), respectively, for organizational purposes and revises the text
for clarity and to update references.
<bullet> Section 927.409: The proposed rule revises section 927.409
by removing the contract clause at paragraph (a)(1), which permitted
the DOE Patent Counsel to only approve copyright of software. In lieu
of that clause, new paragraph (a) instructs the contracting officer to
use the definitions at Alternate I of 52.227-14 and a new Alternate
VIII of 48 CFR 952.227-14, Rights in Data-General, which allows DOE
Patent Counsel to approve copyright of all technical data (including
software) of a subcontractor. In addition, the proposed rule
reorganizes the section so that paragraph (a)(2) is now a new paragraph
(b) that outlines special treatment of certain data. Paragraph
(b)(1)(i) requires Patent Counsel to insert a new Alternate I of 48 CFR
952.227-17 to change paragraph (c)(1)(ii) of 48 CFR 52.227-17, Rights
in Data-Special Works, such that DOE Patent Counsel can approve the
subcontractor to assert copyright in all technical data of
subcontractor and transfer to the Government or other entity.
Paragraphs (b)(1)(ii) through (vii) of the proposed section remain the
same as current paragraphs (a)(2)(ii) through (vii) with some minor
changes to streamline content and update references. However, Paragraph
(b)(1)(viii) is added to contain an instruction located in current
subcontract paragraph (a)(1) regarding the use of Alternate IV of 48
CFR 52.227-14, Rights in Data-General, to be used with educational
institutions. The prohibition for use of Alternate IV for any software
has been changed to allow for copyright assertion when creating open
source software. Paragraph (b)(1)(ix) describes the use of Alternate
VI, as provided at 48 CFR 952.227-14, Rights in Data--General. These
instructions are being relocated from current section 927.404 (l) to
section 927.409(b)(1)(ix) for organizational purposes and revised
accordingly to give further guidance on when to require limited
licensing of Limited Rights Data and Restricted Computer Software of
the subcontractor. Finally, paragraph (b)(1)(x) contains instructions
for using Alternate VII as provided at 48 CFR 952.227-14, Rights in
Data--General, which are currently located at 927.404(m) to limit the
contractor's use of DOE restricted data. Section 927.409(d) is an
expansion of the instructions located in current section 927.409(h) and
48 CFR 27.409(d). Lastly, the current paragraphs (s) and (t) of section
927.409 are relocated to paragraphs (m) and (n), respectively, to
[[Page 73649]]
conform with the numbering of 48 CFR 27.409.
<bullet> Section 931.205-18: DOE proposes to make minor editorial
revisions to this section in order to improve clarity.
<bullet> Section 931.205-47: DOE proposes to revise this section to
update the citation in the definition of ``Employee whistleblower
action'' from 42 U.S.C. 7239 to 50 U.S.C. 2702.
<bullet> Section 932.970: DOE proposes to revise this section in
paragraph (b) to clarify that: (1) Contracting Officers can specify
accelerated payment dates upon making a written determination (on a
case-by-case basis) that a shorter contract financing payment cycle
will be beneficial to the Government by reducing the contractor's
working capital requirements; and (2) Whenever a contract specifies
payment due dates that are sooner than those required under the
relevant prompt payment requirements, the contract will permit the
Contracting Officer to unilaterally authorize additional time for
review of invoices if needed to perform an adequate review prior to
payment. These changes are necessary to ensure that accelerated
payments are only approved when doing so is determined to be beneficial
to the Government, and adequate time for review of invoices is
maintained.
<bullet> Section 932.971: DOE proposes to add this section
concerning electronic submission of invoices/vouchers and to prescribe
a new clause at 48 CFR 952.232-7. These changes are intended to
establish DOE's strong preference for electronic submission of vendor
invoices and to provide standardized instructions for such submissions.
While electronic submission is preferred, other methods of submission
can be approved after consultation with the Office of the Chief
Financial Officer.
<bullet> Subpart 932.70: DOE proposes to remove this subpart in its
entirety, as DOE Loan Guarantee Authority is regulated at 10 CFR part
609.
<bullet> Section 933.103: DOE proposes to revise this section to:
(1) reorganize and renumber the paragraphs to conform to the FAR
numbering at 48 CFR 33.103 which this section supplements; (2) make
minor editorial revisions for clarity; and (3) clarify that DOE does
not accept or adjudicate protests from prospective subcontractors.
<bullet> Section 933.104: DOE proposes to revise this section to
reorganize content to conform to the FAR numbering at 48 CFR 33.104
which this section supplements, streamline content, and make minor
editorial revisions for clarity.
<bullet> Section 933.106: DOE proposes to revise this section to
simplify the prescription for the solicitation provision at section
952.233-2 such that it is required to be inserted whenever the
provision at 48 CFR 52.233-2 is included. In addition, the proposed
rule removes the prescriptions for the provisions at sections 952.233-4
and 952.233-5 because the content of those provisions is being added to
the provision at section 952.233-2.
<bullet> Section 935.010: DOE proposes minor editorial revisions to
this section to improve clarity, and to add a sentence at the end of
paragraph (c) that clarifies that STI products identified in DOE Order
241.1B are reportable to OSTI whether publicly releasable, controlled
unclassified information or classified.
<bullet> Section 935.070: DOE proposes to simplify this section by
making minor editorial revisions and removing the definition paragraph,
since research misconduct is already defined in 10 CFR part 733.
<bullet> Section 936.202-71: DOE proposes to remove this section
because its basis (Executive Order 13514) has been revoked.
<bullet> Section 941.201-70: DOE proposes to revise this section
to: (1) revise the section heading to conform to 48 CFR 41.201 which
this section supplements; (2) revise the text to add a reference to the
Energy Policy Act of 2005 (25 U.S.C. 3502) and integrate new Office of
Federal Energy Management Programs (FEMP) policy, given that DOE Order
430.2B has been rescinded.
<bullet> Section 942.705-1: DOE proposes to revise this section to
remove paragraph (a)(3) as its content is outdated.
<bullet> Section 942.705-3, 942.705-4, 942.705-5: DOE proposes to
remove sections 942.705-3 through 942.705-5 as they only convey
procedures internal to the agency that do not need to be covered in
this regulation.
<bullet> Subpart 942.71: DOE proposes to add this new subpart to
provide an explanation of the need for and the use of the new clause
proposed at section 952.242-71, ``Conditional Payment of Fee, Profit,
and Other Incentives,'' which is also discussed in sections 904.402,
923.7002, and 923.7003. The new clause's prescription is also added.
<bullet> Section 945.000: DOE proposes to revise this section to
account for situations where the personal property management policies
in 41 CFR chapter 109 may also apply to certain non-M&O contracts.
<bullet> Section 945.101: DOE proposes to remove this section as
the definitions are either unnecessary or are already defined in the
FAR.
<bullet> Section 945.102-70: DOE proposes to remove this section as
the FAR coverage is considered to be adequate.
<bullet> Section 945.102-71: DOE proposes to remove this section as
the FAR coverage is considered to be adequate.
<bullet> Section 945.570-1: DOE proposes to revise this section to
update the reference to the ``Personal Property Policy Division'' with
the ``Office of Asset Management.''
<bullet> Sections 945.602, 945.602-3, and 945.602-70: DOE proposes
to remove these sections as their content is adequately addressed in 41
CFR chapters 102 and 109.
<bullet> Section 945.603: DOE proposes to remove this section as
its content is adequately addressed in 41 CFR chapters 102 and 109.
<bullet> Section 945.670-1: DOE proposes to revise this section to
update the currently incorrect reference (48 CFR 45.606-3) to 48 CFR
2.101.
<bullet> Section 945.670-3: DOE proposes to remove this section
because the content is adequately addressed in 41 CFR chapter 109.
<bullet> Section 945.671: DOE proposes to revise this section to
add a reference to ``41 CFR chapter 109'' in place of an outdated
reference to ``41 CFR 109-45.50 and 45.51 or its successor''.
<bullet> Section 951.102: DOE proposes to revise this section, in
paragraph (c)(1), to remove the obsolete reference to the Federal
Standard Requisitioning and Issue Procedures (FEDSTRIP) and update the
reference to the ``Office of Resource Management within the
Headquarters procurement organization'' to the ``Systems Division
within the Office of Acquisition Management.''
<bullet> Section 952.203-1: DOE proposes to add this clause
``Identification of Contractor Employees'' to require contractors to
use standard measures to ensure that contractors and their employees
properly identify themselves as contractors in all DOE internal and
external communications so that all parties are aware of their status
as contractor personnel.
<bullet> Section 952.204-2: DOE proposes several amendments to the
``Security Requirements'' clause. Specifically, DOE proposes to: (1)
consolidate definitions previously located in separate paragraphs (c)
through (g) into a single paragraph (a), and add definitions of
``contracting officer'', ``contract'', ``contractor'', ``cyber system''
and ``special access program''; (2) make minor editorial revisions and
update references throughout; and (3) add a reference in the last
paragraph to clarify that facility clearance may be granted prior to
award or after award of
[[Page 73650]]
a subcontract in accordance with the clause at 48 CFR 952.204-73,
``Facility Clearance''.
<bullet> Section 952.204-70: DOE proposes to revise the
``Classification/Declassification'' clause by reorganizing its content,
with definitions being brought together into a separate paragraph (a).
Additionally, minor editorials changes were made to improve clarity.
<bullet> Section 952.204-73: DOE proposes to amend the ``Facility
Clearance'' clause to make minor editorial revisions throughout and, in
paragraph (d), to include both a pre-award facility clearance process
and an alternative post-award process. The current 48 CFR 952.204-73
requires a full Facility Clearance prior to the award of a contract
requiring access to classified information, and prior to granting any
Interim Access Authorizations to key management personnel. DOE proposes
to revise the section to provide a process that permits contract award
prior to granting a full Facility Clearance, and to permit contract
award prior to granting Interim Access Authorizations to key management
personnel. This alternate post-award process will enhance efficiencies
in awarding contracts while ensuring security requirements are met.
<bullet> Section 952.204-74: DOE proposes to move the
``Counterintelligence'' clause from section 970.5204-1 to this new
section, as it is pertinent to both M&O and non-M&O contracts. Minor
editorial revisions are also proposed.
<bullet> Section 952.204-76: DOE proposes to remove this clause,
``Conditional Payment of Fee or Profit--Safeguarding Restricted Data
and Other Classified Information,'' to reflect that section 952.242-71,
Conditional Payment of Fee, Profit or Incentives, a new clause, is
proposed to be added. The new clause replaces three existing clauses
(952.204-76, Conditional Payment of Fee or Profit--Safeguarding
Restricted Data and Other Classified Information, 952.223-76,
Conditional Payment of Fee or Profit--Safeguarding Restricted Data and
Other Classified Information and Protection of Worker Safety and
Health, and 952.223-77, Conditional Payment of Fee or Profit--
Protection of Worker Safety and Health).
<bullet> Section 952.204-77: DOE proposes to revise this section,
in the introductory text, to update the citation for the clause
prescription and make minor editorial changes.
<bullet> Section 952.204-78: DOE proposes to add this new clause,
``DOE Directives'' in order to clarify the policy and procedures for
integrating directives into non-M&O contracts.
<bullet> Section 952.215-70: DOE proposes to revise the ``Key
Personnel'' clause to make minor editorial changes to improve clarity.
<bullet> Section 952.216-15: DOE proposes to remove the
``Predetermined Indirect Cost Rates'' clause as the corresponding FAR
clause at 48 CFR 52.216-15 is considered to be adequate.
<bullet> Section 952.219-70: DOE proposes to revise the ``DOE
Mentor-Prot[eacute]g[eacute] Program'' clause to reflect the fact that
the program has been broadened to include all small business concerns,
remove unnecessary procedural content and make minor editorial
revisions for clarity.
<bullet> Section 952.223-71: DOE proposes to revise this section to
add a non-M&O version of the ``Integration of Environment, Safety, and
Health into Work Planning and Execution'' clause on the basis that the
requirement is applicable to both non-M&Os and M&Os. The section
language previously redirected the reader to a clause for M&O
contracts.
<bullet> Section 952.223-75: DOE proposes to revise this section in
the introductory text to update the location of the clause prescription
from section 923.7003(h) to section 923.7003(g).
<bullet> Sections 952.223-76 and 952.223-77: DOE proposes to remove
the ``Conditional Payment of Fee or Profit--Safeguarding Restricted
Data and Other Classified Information and Protection of Worker Safety
and Health'' clause and the ``Conditional Payment of Fee or Profit--
Protection of Worker Safety and Health'' clause to reflect that
952.242-71, Conditional Payment of Fee, Profit or Incentives, a new
clause, is added. The new clause replaces three existing clauses
(952.204-76, Conditional Payment of Fee or Profit--Safeguarding
Restricted Data and Other Classified Information, 952.223-76,
Conditional Payment of Fee or Profit--Safeguarding Restricted Data and
Other Classified Information and Protection of Worker Safety and
Health, and 952.223-77, Conditional Payment of Fee or Profit--
Protection of Worker Safety and Health).
<bullet> Section 952.223-78: DOE proposes to revise the
``Sustainable Acquisition Program'' clause to streamline requirements,
to obviate the need for Alternate I to the clause, and to eliminate
outdated references and areas of redundancy with FAR coverage.
<bullet> Section 952.226-70: DOE proposes to revise the
``Subcontracting Goals Under Section 3021(a) of the Energy Policy Act
of 1992'' clause to reflect the addition of a fourth target group by
the Small Business Reauthorization Act of 1997 (Pub. L. 105-135) and to
make minor editorial revisions.
<bullet> Section 952.226-71: DOE proposes to revise this clause by
updating the citation for the clause prescription in the introductory
text and replacing ``Energy Policy Act'' where it appears in the clause
title and text with ``Energy Policy Act 1992'' or ``EPAct 1992'' in
order to more clearly identify the source of these requirements.
Additionally, minor editorial changes are proposed for paragraph (a) of
the clause for streamlining purposes.
<bullet> Section 952.226-72: DOE proposes to amend the ``Energy
Policy Act of 1992 Subcontracting Goals and Reporting Requirements''
clause to reflect the addition of a fourth target group by the Small
Business Reauthorization Act of 1997 (Pub. L. 105-135) as well as to
replace references to the outdated Standard Form (SF) 294 and SF 295
with references to the Individual Subcontract Report and or Summary
Subcontract Report in the Electronic Subcontracting Reporting System
(ESRS).
<bullet> Section 952.226-73: DOE proposes to amend this section to
revise the section heading and clause title and to reflect the addition
of a fourth target group by the Small Business Reauthorization Act of
1997 (Pub. L. 105-135).
<bullet> Section 952.226-74: DOE proposes to amend this section to
revise the section heading and clause title by adding the words
``Workforce Restructuring and'' before ``Displaced Hiring Preference.''
This proposed revision is intended to clearly tie this clause to
workforce restructuring and distinguish it from other hiring
preferences related to the Service Contract Act.
<bullet> Section 952.227-9: DOE proposes to revise the ``Refund of
Royalties'' clause to require contractors with contracts greater than
five years in duration to furnish a statement of royalties paid or
required to be paid in connection with performing the contract every
five years, and to make minor editorial revisions.
<bullet> Section 952.227-11: Since 37 CFR 401.14, Standard Patent
Rights, is updated regularly, DOE has decided to use that clause in
preference to 48 CFR 52.227-11. However, 37 CFR 401.14 has sections
requiring agency implementing regulations. Therefore, DOE proposes to
revise section 952.227-11 to replace the full clause text with two
alternates. Alternate I is used to supplement the standard patent
rights clause to include DOE's implementing regulations. For example,
paragraph (g)(2) requires the Contracting Officer to direct whether to
include this clause in certain subcontracts. Also, paragraph (l)
requires reports to be uploaded into
[[Page 73651]]
iEdison invention management system. DOE has recently issued a
Declaration of Exceptional Circumstance (DEC) to require substantial US
manufacture of subject inventions funded by many DOE programs.
Alternate II addresses the modifications and additions to 37 CFR 401.14
to implement this DEC by adding paragraphs (m) and (n).
<bullet> Section 952.227-13: DOE proposes to amend the ``Patent
Rights--Acquisition by the Government'' clause to update references and
account for statutory changes. Paragraph (k) has been moved to a new
alternate I to provide for a right to require licensing of third
parties to background inventions only when deemed necessary. Also, a
new Alternate II has been added to implement the U.S. Competitiveness
requirement for DOE funding programs that require it.
<bullet> Section 952.227-14: DOE proposes to amend the ``Rights in
Data--General'' clause to add a new Alternate VIII which addresses the
approval by DOE Patent Counsel of all types of data by subcontractors
of the M&O Contractor. Minor editorial revisions and revisions to
update references are also proposed.
<bullet> Section 952.227-17: DOE proposes to add a new ``Rights in
Data--Special Works'' clause which supplements the FAR clause at 48 CFR
52.227-17 to permit Patent Counsel to direct the subcontractor to
assert copyright and transfer to the Government or M&O Contractor.
<bullet> Section 952.227-82: DOE proposes to remove the ``Rights to
proposal data'' clause on the basis that the corresponding FAR clause
at 48 CFR 52.227-23 is considered to be adequate.
<bullet> Section 952.227-84: DOE proposes to amend this section to
revise the introductory text to correctly specify the location of the
clause prescription and to revise the clause text in the third sentence
to replace the reference to ``DEAR 952.227-11'' which is proposed for
removal, with ``37 CFR 401.14.''
<bullet> Section 952.231-71: DOE proposes to revise the
``Insurance--Litigation and Claims'' clause, in paragraph (f)(2) to
explicitly identify the property clause at 48 CFR 970.5245-1 that
defines ``contractor's managerial personnel.''
<bullet> Section 952.232-7: As detailed in the description to
section 932.971, DOE proposes to add this ``Electronic Submission of
Invoices/Vouchers'' clause to ensure clarity on electronic invoicing
and payment procedures.
<bullet> Sections 952.233-2, 952.233-4, and 952.233-5: DOE proposes
to revise the ``Service of Protest'' clause to add the provisions
previously located at sections 952.233-4 and 952.233-5, since all three
provisions had the same prescription and interrelated subject matter.
Sections 952.233-4 and 952.233-5 are proposed for removal.
<bullet> Section 952.242-71: DOE proposes to add this new
``Conditional Payment of Fee, Profit or Incentives'' clause to replace
three existing clauses (section 952.204-76, Conditional Payment of Fee
or Profit--Safeguarding Restricted Data and Other Classified
Information, section 952.223-76, Conditional Payment of Fee or Profit--
Safeguarding Restricted Data and Other Classified Information and
Protection of Worker Safety and Health, and section 952.223-77,
Conditional Payment of Fee or Profit--Protection of Worker Safety and
Health). Like the previous clauses, the new clause provides for a
reduction in payment to a contractor if the contractor fails to meet a
performance requirement relating to environment, safety and health or
security or safeguarding of restricted data and other classified
information. However, the new clause also allows for a reduction in
payment if the contractor fails to meet a performance requirement
related to business and financial systems. This addition was included
because DOE believes adding emphasis to the importance of strong
business and financial systems to its fee policy will enhance the
effectiveness of its contract administration and its mission
accomplishment. The new clause also includes updated references and
reflects revisions made for clarity.
<bullet> Section 952.245-2: DOE proposes to revise this section to
update the clause prescription to conform with the current FAR.
<bullet> Section 952.245-5: DOE proposes to revise this section to
update the clause prescription to conform with the current FAR.
<bullet> Section 952.250-70: DOE proposes to revise the ``Nuclear
Hazards Indemnity Agreement'' clause to correctly reflect the current
underlying statute and to eliminate ``effective date'' considerations
not germane to contracts awarded in 2020 and beyond. DOE proposes to
update 48 CFR 952.250-70 to delete Note 1 in accordance with 2005
Public Law 109-58, sec. 610(b), which amended Atomic Energy Act (AEA)
section 234A(d) to eliminate the exclusion from civil penalties for
certain identified non-profit institutions. Prior to amendment, AEA
section 234A(d) provided that the provisions of AEA section 234A on
imposition of civil penalties would not apply to the University of
Chicago for activities associated with Argonne National Laboratory; the
University of California for activities associated with Los Alamos
National Laboratory, Lawrence Livermore National Laboratory, and
Lawrence Berkeley National Laboratory; American Telephone and Telegraph
Company and its subsidiaries for activities associated with Sandia
National Laboratories; Universities Research Association, Inc. for
activities associated with FERMI National Laboratory; Princeton
University for activities associated with Princeton Plasma Physics
Laboratory; the Associated Universities, Inc. for activities associated
with the Brookhaven National Laboratory; and Battelle Memorial
Institute for activities associated with Pacific Northwest Laboratory
<bullet> Section 970.0100: Section 970.0100 indicates that part 970
of the DEAR provides DOE policies, procedures, provisions, and clauses
that implement and supplement the FAR and other parts of the DEAR for
the award and administration of M&O contracts. DOE proposes to revise
this section to clarify that part 970 does not apply to non-M&O
contracts, except as approved by the cognizant SPE, or as otherwise
prescribed in the DEAR.
<bullet> Section 970.0371-8: Section 970.0371-8 requires that
certain information be included in a written disclosure statement made
by an employee of an M&O contractor. In the proposed rule, DOE would
require each disclosure statement to include an acknowledgement that
the employee has read and is familiar with DOE Order 486.1, Department
of Energy Foreign Government Sponsored or Affiliated Activities.
Additionally, section 970.0371-8 already requires that each disclosure
statement include an acknowledgement that the employee has read and is
familiar with the DOE publication entitled ``Reporting Results of
Scientific and Technical Work Funded by DOE''. In the proposed rule,
DOE would update the title of that publication to reflect the
publication's current title.
<bullet> Section 970.0371-9: Section 970.0371-9 requires a
contracting officer to insert the clause at section 970.5203-3,
Contractor's Organization, in all M&O contracts and provides that in
paragraph (a) of that clause, the words ``and managerial personnel (see
970.5245-1(j))'' may be inserted after ``(see 952.215-70)''. In the
proposed rule, DOE would update the cross reference from ``970.5245-
1(j)'' to ``970.5245-1(k)'' to reflect the new location of that
paragraph under the proposed rule.
<bullet> Section 970.0404-1: Section 970.0404-1 provides
definitions of several terms. The proposed rule would remove that
section because the
[[Page 73652]]
definitions of those terms are provided in section 904.401 and
duplication in this subpart is unnecessary.
<bullet> Section 970.0404-2
[cir] Paragraph (a) of section 970.0404-2 points to several places
where the reader may find information about the National Industrial
Security Program, information concerning contractor ownership when
national security or atomic energy information is involved, and
information regarding contractor ownership involving national security
program contracts. Paragraph (b) of section 970.0404-2 provides that
all DOE elements should undertake the necessary precautions to ensure
that DOE and covered contractor personnel, programs and resources are
properly protected from foreign intelligence threats and activities.
The regulations in 48 CFR part 904 contain DOE policies, definitions,
provisions, and clauses associated with the safeguarding and security
of classified information. In order to avoid unnecessary duplication,
the proposed rule replaces the content of paragraphs (a) and (b) with a
new paragraph (a) that points the reader to that part.
[cir] Paragraph (c) of section 970.0404-2 provides that for DOE M&O
contracts and other contracts designated by the Senior Procurement
Executive, or designee, the clause entitled ``Conditional Payment of
Fee, Profit, and Other Incentives--Facility Management Contracts''
implements the requirements of section 234B of the Atomic Energy Act
regarding the use of a contract clause that provides for an appropriate
reduction in the fee or amount paid to the contractor in the event of a
violation by the contractor or any contractor employee of any rule,
regulation, or order relating to the safeguarding or security of
restricted data or other classified information. The proposed rule
makes minor editorial revisions to this text for streamlining purposes
and redesignates the content as paragraph (b) of section 970.0404-2.
<bullet> Section 970.0404-4: Paragraph (a) of section 970.0404-4
requires a contracting officer to include the clause located at 48 CFR
5204-1 in certain contracts. Paragraph (b) of section 970.0404-4 points
the contracting officer to sections 904.404 and 904.7103 for the
prescription of solicitation provisions and contract clauses relating
to safeguarding classified information and foreign ownership, control,
or influence over contractors. The proposed rule would remove section
970.0404-4 because (1) the proposed rule relocates the requirement in
paragraph (a) of that section to paragraph (d)(7) of section 904.404
and (2) the references to sections 904.404 and 904.7103 are unnecessary
and duplicative of those sections.
<bullet> Section 970.0407-1-3: DOE proposes to amend this section
to revise the prescription for the ``Access to and Ownership of
Records'' clause to reflect the addition of a non-M&O version of the
``Integration of Environment, Safety, and Health into Work Planning and
Execution'' clause and to make minor editorial changes.
<bullet> Section 970.0801-2: DOE proposes to revise this section to
replace the reference to the Federal Property Management Regulation at
41 CFR part 101-43 with a reference to the Federal Management
Regulation at 41 CFR chapter 102. This change is necessary because the
General Services Administration (GSA) is phasing out the Federal
Property Management Regulation and transitioning its sections to the
Federal Management Regulation.
<bullet> Subpart 970.09: The proposed rule would amend this subpart
to articulate a uniform policy on conflicts of interest for M&O
contractors and prescribe a new M&O specific clause at section
970.5209-70. Specifically, section 970.0905 would be revised to
streamline content to more concisely articulate policy, and to reflect
the addition of an M&O specific contract clause rather than the clause
at section 952.209-72. Additionally, section 970.0906 would be added to
prescribe the new M&O specific clause at section 970.5209-70.
<bullet> Section 970.1100-1: DOE proposes to amend this section to
more concisely state DOE policy. Accordingly, paragraphs (a) and (b)
are streamlined and combined into paragraph (a). Paragraph (c) is
redesignated as new paragraph (b). Paragraph (d) is removed, as its
content is limited to internal procedures and does not need to be
included in the regulation.
<bullet> Section 970.1100-2: DOE proposes to remove this section as
its content is limited to internal procedures and does not need to be
included in the regulation.
<bullet> Subpart 970.15: DOE's guidance (both current and proposed)
in subpart 970.15 covers DOE's fee policy for its Management and
Operating contracts. DOE proposes to amend its current guidance found
in sections 970.1504-1-1 through 970.1504-5 by revising and
reorganizing it (into sections 970.1504-1 through 970.1504-3) to
simplify and state explicitly its construct, sequence for calculating,
and step-by-step process for determining the total available fee for an
M&O contract. DOE's proposed amendments reflect its Contracting
Officers' several decades of experience with the current articulation
of the policy. They have found the policy satisfactory, have
demonstrated a comprehensive understanding of its details, and have
reflected their understanding in implementing the policy. Nonetheless,
DOE's Contracting Officers have indicated it would be efficacious, for
many reasons (training new procurement analysts, communicating with
other offices, such as program, reviewing, and legal offices, etc.) if
DOE's policy:
[cir] were reorganized and restated in a more straightforward, more
``plain English'' format;
[cir] was pruned of what has become unnecessary guidance for a
number of reasons (for example, guidance covered adequately in the FAR,
or DOE's internal guidance, such as DOE Acquisition Guide chapters),
[cir] reflected Contracting Offers' current practices in executing
the policy;
[cir] included a detailed example of a fee calculation; and
[cir] conformed more tightly to the FAR's articulation of fee
policy, fee constructs, fee definitions, and fee terms, to the extent
appropriate.
The proposed amendments provide a clearer articulation of the
policy. DOE has: (1) deleted or revised entire sections and large
portions of sections of the policy, sometimes without replacement,
sometimes replacing the deleted or revised language with much more
concise language; (2) reorganized the policy; and (3) added a detailed
example. Often when replacing deleted or revised language with more
concise language, different aspects of the topic addressed by the
deleted or revised language appear more cogently stated in several
sections of the proposed policy (sometimes more than once in several
sections).
In its proposed amending of its guidance, DOE retained the current
fee policy for M&O contracts and clarified it. There are no changes of
any significance to the current fee policy, with two exceptions. The
two exceptions that DOE proposes are: eliminating the special
considerations for determining fee for laboratory M&O contracts (which
now appears in the current policy at section 970.1504-1-3); and raising
the Classification Factor of for research and development at a
laboratory (which now appears in the current policy at section
970.1504-1-9(e)(4)) from 1.25 to 1.5.
It is worth noting that one proposed minor change to the current
fee policy is the proposed suggested order of the steps in determining
the maximum total available fee for a one-year period and the proposed
use of the ``significant factors'' (in one of the steps) in
[[Page 73653]]
calculating the maximum total available fee amount for a one-year
period. The proposed revisions--which reflect the current practice and
DOE Contracting Officers' desire to formalize it--establish that
suggested order and use. The proposed suggested order and use and the
current suggested order and use both consider the fee base, fee
schedules, classification factors, and significant factors, and both
orders and uses produce the same result. The proposed suggested order
and use require (for each type of effort) calculating an appropriate
percentage derived from considering the significant factors (and
applying it to the product of the maximum fixed fee and the
classification factor). The current fee policy's suggested order and
use--implied at sections 970.1504-1-5(c) and 970.1504-1-9(c)--require
(for each type of effort) determining an appropriate fixed fee amount
for each of the significant factors, summing those appropriate fixed
fee amounts, and multiplying that sum by the classification factor.
The proposed suggested order and process comprise considering the:
magnitude of the effort (reflected by the total fee base for the year);
type of effort (reflected by the allocation of the total fee base to
the three fee schedules); nature, difficulty, complexity, and
importance of the work (reflected by the choice of classification
factors); and specific circumstances of the procurement (reflected by
the appropriate percentages derived from considering significant
factors). This order entails using (for each type of effort) the
maximum amount of fixed fee from the fee schedule, multiplying it by
the classification factor, and multiplying by the appropriate
percentage (derived from considering the significant factors).
The current fee policy's suggested order and process comprise
considering the: magnitude of the effort (reflected by the total fee
base for the year); type of effort (reflected by the allocation of the
total fee base to the three fee schedules); specific circumstances of
the procurement (reflected by the determining an appropriate fee
amounts for each of the significant factors and summing those amounts);
and nature, difficulty, complexity, and importance of the work
(reflected by the choice of classification factors). This order entails
using (for each type of effort) the fixed fee that would have been
calculated for a cost-plus-fixed-fee contract action (using the fee
schedules and considering the significant factors) and multiplying that
fixed fee by the classification factor.
A second proposed minor change to the current fee policy is
deleting cost reduction incentives, which are discussed in the current
policy at 970.1504-1-4(f), 970.1504-5(c), and 970.5215-4. DOE no longer
uses cost reduction incentives, using instead value engineering, which
is covered in the DOE Acquisition Guide and the FAR.
Finally, a third proposed minor change to the current fee policy is
adding (regarding conditional payment of fee, profit, and other
incentives) contract performance requirements relating to business and
financial systems to the performance requirements M&O contractors are
subject to. Current fee policy (970.1504-1-2(i)) includes only
performance requirements relating to: environment, safety, and health;
and safeguarding of Restricted Data and other classified information.
A detailed breakdown of the changes to subpart 970.15 is provided
below.
<bullet> Section 970.1504-1-1: DOE proposes to amend this section
for clarity.
<bullet> Section 970.1504-1-2: DOE proposes to amend this section
to reorganize and clarify the agency's fee policy for M&O contracts.
Additionally, in some cases, DOE proposes to revise and move its
coverage from other sections to this section. In other cases, DOE
proposes to revise its coverage in this section and move it to other
sections. In its proposed amendments to this section, among other
things, the current numbering of 970.1504-1-2(a) through (h) is
proposed to become 970.1504-1-2(a) through (b).
[cir] Paragraph (a)(1): DOE proposes adding this paragraph to
clarify its policy on fee for M&O contracts. DOE's policy on types of
contracts and fee arrangements suitable to M&O contracts that was
originally located at 48 CFR 970.1504-1-4(a)(1) and 970.1504-1-2(h) is
revised for clarity and moved to this paragraph.
[cir] Paragraph (a)(2): DOE proposes to add this paragraph to
reorganize and clarify DOE M&O contract fee policy to: (1) move the
policy requiring that a cost-plus-fixed-fee contract only be used if
approved in advance by the Senior Procurement Executive (SPE) or
designee from current 48 CFR 970.1504-1-4(b) to this paragraph; and (2)
add a mention of the limitation on the fee for a cost-plus-fixed-fee
contract found at 48 CFR 15.404-4(c)(4)(i), which makes unnecessary the
last sentence of current 970.1504-1-2(d), which is deleted.
[cir] Paragraph (a)(3): DOE proposes to add this paragraph to
reorganize and clarify DOE policy on the approval of base fee in a
cost-plus-award-fee M&O contract. DOE proposes revising and moving the
policy requiring that a base fee amount may only be used if approved in
advance by the SPE or designee from 48 CFR 970.1504-1-4(c)(3) to this
paragraph.
[cir] Paragraph (a)(4): DOE proposes to add this paragraph to
reorganize and clarify DOE policy that incentive fees allocated to
evaluation periods under cost-reimbursement type contracts should, to
the greatest extent appropriate, be tied to a specific portion of the
maximum total available fee. DOE proposes to revise and move the policy
described herein from 48 CFR 970.1504-1-2(b) to this paragraph.
[cir] Paragraph (a)(5): DOE proposes to add this paragraph to
reorganize and clarify DOE policy that: (1) the maximum total available
fee amount may not exceed the fee derived from this section unless
approved in advance by the SPE or designee; and (2) a request to allow
a higher fee must be in writing and must clearly explain why the
situation merits consideration. DOE proposes to revise and move the
policy described herein from, in part, both 48 CFR 970.1504-1-2(d) and
970.1504-1-10 to this paragraph.
[cir] Paragraph (a)(5)(i): DOE proposes to add this paragraph to
reorganize and clarify DOE policy that typically, only a situation
where either unusually difficult objective performance incentives would
be used or where successful performance would provide extraordinary
value would merit consideration for allowing a higher fee. DOE proposes
to revise and move the policy described herein from 48 CFR 970.1504-1-
10 to this paragraph.
[cir] Paragraph (a)(5)(ii): DOE proposes to add this paragraph to
reorganize and clarify DOE policy that when a contract requires a
contractor to use its own facilities, equipment, or other resources for
contract performance (e.g., when there is no letter-of-credit
financing), consideration may be given, subject to approval by the SPE
or designee, to allowing a maximum total available fee amount above the
amount calculated by this section. DOE proposes to revise and move the
policy described herein from 48 CFR 970.1504-1-2(g) to this paragraph.
[cir] Paragraph (a)(6): DOE proposes to add this paragraph to
reorganize and clarify DOE policy that each M&O contract must set forth
in the contract (or in a Performance Evaluation and Measurement Plan
(PEMP) or similar document) the methods that will be used to rate the
contractor's performance and to determine the fee the contractor's
performance will earn. The DOE Contracting Officer must ensure all
important areas of contract
[[Page 73654]]
performance are specified in the contract or in a PEMP (or similar
document), even if such areas are not assigned a specific portion of
the maximum total available fee the contractor might earn. DOE proposes
to revise and move the policy described herein from 48 CFR 970.1504-1-
9(h) and (j), in part, to this paragraph.
[cir] Paragraph (a)(6)(i): DOE proposes to add this paragraph to
reorganize and clarify that an M&O contract is an ``incentive
contract'' as that term is used in 48 CFR part 16, subpart 16.4, and
that subpart 16.4 prohibits the use in a contract of other than cost
incentives without also providing a cost incentive (or constraint). DOE
proposes to add this paragraph to better align with the cost-plus-
award-fee contract policy in subpart 16.4, particularly 48 CFR
16.401(e).
[cir] Paragraph (a)(6)(ii): DOE proposes to add this paragraph to
clarify: (1) award fee not earned during the award fee cycle shall not
be carried over to any future award fee cycle; (2) when the award fee
cycle consists of one evaluation period, unearned award fee amounts may
not be carried over from one evaluation period to the next; and (3)
when the award fee cycle consists of two or more evaluation periods the
Contracting Officer may make the decision that unearned award fee
amounts may be carried over from one evaluation period to the next, if
the periods are within the same award fee cycle. DOE proposes to add
this paragraph to better align its cost-plus-award-fee contract policy
with the cost-plus-award-fee contract policy in 48 CFR 16.401(e)(4).
[cir] Paragraphs (b)(1) and (2): DOE proposes to reorganize,
revise, and move the policy at 970.1504-1-2(f) to this section to
clarify: (1) that before issuing a competitive solicitation, the Head
of the Contracting Activity (HCA) must coordinate the maximum total
available fee amount with the SPE or designee; (2) a competitive
solicitation must identify the greatest maximum total available fee
amount the Government will accept and may invite offerors to propose a
lower fee amount; and (3) before beginning to negotiate an extension to
an existing contract, the HCA must coordinate the greatest maximum
total available fee amount the HCA will accept and the maximum total
available fee amount targeted for negotiation with the SPE or designee.
<bullet> Section 970.1504-1-3: First, DOE proposes to delete the
policy describing special considerations for determining fee for
laboratory M&O contracts in current 970.1504-1-3(a) through (c)(7).
That policy required determining whether any fee is appropriate for
laboratory M&O contracts; DOE's new policy is that a fee is
appropriate. DOE believes, based upon its experience with the current
policy, the new policy will encourage a larger potential group of
entities to compete for DOE's laboratory M&O contracts, which will
result in better outcomes for DOE. (This deletion of the laboratory M&O
contracts fee policy is one of the two proposed changes of any
significance to the current M&O contracts fee policy mention earlier,
the other being the Classification Factor for research and development
at a laboratory was increased.)
Second, a better articulation of DOE's general policy for fee
determination for M&O contracts is now proposed to be found at
970.1504-1-3(a) through (f). DOE's general policy for fee determination
has been and remains that: all M&O contracts are ``incentive fee''
contracts as described in 48 CFR part 16, subpart 16.4; and DOE will
evaluate (per a contract's performance measures) the contractor's
performance to determine the fee the contractor's performance has
earned it. This is a long-standing policy, which, in essence, is strewn
across several sections of the current fee policy, not necessary in
ideal sequential order, or covered by the Federal Acquisition
Regulation and not reiterated in the DEAR. Stated in more detail, the
long-standing construct of fee policy for M&O contracts has been and is
proposed to remain:
Objective performance measures are preferred to subjective ones and
tying specific fee to specific outcomes should be accomplished whenever
feasible. Consequently, fixed-price actions would be ideal (albeit the
unlikelihood of their being feasible in M&O contracts) and cost-plus-
fixed-fee actions (such as base fee in a cost-plus-award-fee action)
are to be avoided whenever practical (and their use requires high level
approval). The formula to determine the maximum total available fee is
based on annual fee determinations using fees bases, fee schedules,
classification factors, and appropriate percentages. More specifically,
the maximum total available fee amount for an M&O contract is the sum
of the maximum total available fee amounts of the contract's one-year
periods. The maximum total available fee amount in a one-year period is
based on the fee base of the one-year period. Calculating the maximum
total available fee amount for a one-year period requires considering
the: magnitude of the effort (reflected by the total fee base for the
year); type of effort (reflected by the allocation of the total fee
base to the three fee schedules); nature, difficulty, complexity, and
importance of the work (reflected by the choice of classification
factors); and specific circumstances of the procurement (reflected by
the appropriate percentages derived from considering significant
factors).
This better articulation of DOE's general policy for fee
determination for M&O contracts reflects the construct of (and some
pertinent details of) DOE's long-standing general policy for fee
determination in more concise terms, in a more logical sequence, and in
more congruence with the Federal Acquisition Regulation's articulation
of the concept of contract types and fee arrangements. In essence, DOE
is proposing pulling and revising (sometimes integrating constructs,
sometimes integrating and revising specific language, sometimes
deleting unnecessary language, sometimes revising necessary language)
policy guidance from the following sections and placing it in section
970.1504-1-3:
[cir] 970.1504-7(a) through (e)--Fee base;
[cir] 970.1504-1-6(a) and (b)--Calculating fixed fee;
[cir] 970.1504-1-9(a) through (j)--Special considerations: Cost-
plus-award-fee;
[cir] 970.1504-1-5--General considerations and techniques for
determining fixed fees;
[cir] 970.1504-1-2(i)--which addresses conditional payment of fee,
profit, and other incentives;
[cir] 970.1504-1-4(e)--which addresses requirements if using
multiple contract types;
[cir] 970.1504-1-4(f)--which addresses cost reduction incentives;
this section is deleted without replacement because DOE determined its
policy for value engineering (stated in its Acquisition Guide) was more
appropriate;
[cir] 970.1504-1-4(g)--which addresses the responsibilities of
operations and field offices in establishing contract types and fee
arrangements;
[cir] 970.1504-1-2(c) and (d)--which discuss annual fee
determination, maximum amount of annual fee, and the role of the Senior
Procurement Executive;
[cir] 970.1504-1-2(b)(3)--which discusses preferences for fixed
price awards, objective measures, and tying fee to specific portions of
the fee pool;
[cir] 970.1504-1-4(c)(3) and (4)--which discuss risk, base fee,
performance fee and its two components, and the preference for the
objective fee component; and
[cir] 970.1504-1-4(d)--which addresses performance fee, measures
and objectives, the preference for tying fee to
[[Page 73655]]
outcomes, and the allocation of fee to outcomes.
(It should be noted that some of the pulled and revised language
listed above appears more than once, that is, it appears not only in
970.1504-1-3(a) through (f) but also--for the purpose of improving
readability--in other sections of DOE's proposed fee policy.)
[cir] Paragraphs (a) through (b)(6): DOE proposes to reorganize,
revise, and move the policy currently located at 970.1504-7(a) through
(e)--Fee base, 970.1504-1-6(a) and (b)--Calculating fixed fee,
970.1504-1-9(a) through (j)--Special considerations: Cost-plus-award-
fee, and 970.1504-1-5--General considerations and techniques for
determining fixed fees to section 970.1504-1-3(a) through (b)(6) to
clarify the construct of DOE's long-standing general policy for fee
determination for M&O contracts. The guidance in the portions of
general policy moved to 970.1504-1-3 includes guidance regarding:
magnitude of the effort; type of the effort; nature, difficulty,
complexity, and importance of the work; specific circumstances of the
procurement; maximum total available fee amount for the contract;
annual fee bases; allocation of the maximum total available fee amount;
the fee base in each of the one-year periods of the contract;
allocating that total available fee to the evaluation periods of the
contract based upon what best motivates the contractor's superior
performance; allocating incentives in a manner that will result in
reasonable contractor risk and provide the contractor with the greatest
incentive; maximum total available fee amount equaling the sum of the
maximum total available fee amounts in the contract's one-year periods;
the maximum total available fee amount for a one-year period is based
on the fee base for that one-year period; the fee base is an estimate
of the allowable costs (with some exclusions) for that one-year period;
the fee base is a basic component of the fee schedules, which link the
fee base to fee; the amount of the fee base and the amount of fee in
the fee schedules are annual amounts; calculating the maximum total
available fee amount for a one-year period is based on the contract's
one-year periods and their fee bases; usually the maximum total
available fee amount for a one-year period is allocated to the same
one-year period; when a maximum total available fee amount is
established for longer than a year, it is subject to adjustment; the
SPE's or designee's approval is required for evaluation periods other
than one year; the Government's objective is to allocate incentives in
a manner that will provide the contractor with the greatest incentive
for efficient and economical performance; and occasions could occur
where it would be appropriate to allocate the maximum total available
fee amount for a year to a subsequent one-year evaluation period, an
evaluation period of greater than a year, or to several evaluation
periods.
[cir] Paragraph (b)(7): To clarify the construct of DOE's long-
standing general policy for fee determination for M&O contracts, DOE
proposes to: (1) reorganize and revise the policy currently located at
970.1504-1-2(b)(3), (c), and (d), 970.1504-1-4(c)(2) through (d), and
970.1504-1-9(b) and (h) and move it to paragraph (b)(7); (2) repeat
some of the M&O contract Total Available Fee contract clause's language
and add it to this paragraph, specifically the clause's language
requiring the negotiations to establish the requirements for the year
and the maximum total available fee that the contractor can earn for
its performance must occur before the contract year begins, and the
language requiring the maximum total available fee allocated to an
evaluation period be apportioned among a base fee amount and a
performance fee amount; and (3) rephase some of the Federal Acquisition
Regulation's discussion at 48 CFR part 16, subpart 16.4, regarding
incentives, objective performance requirements, and subjective
performance requirements, and award fee and add it to this paragraph.
[cir] Paragraph (b)(8): DOE proposes to reorganize, revise, and
move the policy at currently located at 970.1504-1-2(b)(3) and (e) to
this paragraph.
[cir] Paragraph (c): DOE proposes to add this paragraph because it
repeats and emphasizes the fee determining sequence mentioned earlier.
Paragraph (a) addressed the general requirements for determining fee,
and paragraph (b) addressed the maximum total fee amount for the
contract, which necessarily mentioned total available fee for each one-
year period of the contract. Therefore, it adds to the readability of
DOE's M&O contract fee policy to address determining the maximum total
available fee for each one-year period of the contract at this point.
(The next paragraph addresses conditional payment of fee, profit, and
other incentives, which applies to paragraphs (a), (b), and (c).)
Paragraph (c) alludes to base fee, fee schedules, classification
factors, appropriate percentages derived from the significant factors,
and the specific details for calculating the maximum total available
fee one-year period and an example, subjects addressed comprehensively
at 970.1504-1-5, 970.1504-1-6, 970.1504-1-7, 970.1504-1-8, and
970.1504-1-4, respectively.
[cir] Paragraph (d): DOE proposes to reorganize and revise the
policy currently located at 970.1504-1-2(i) and move it to paragraph
(d). DOE is taking this action to: (1) clarify the significance to the
fee determining process of the performance requirements of the contract
relating to environment, safety, and health (ES&H) and relating to
safeguarding of Restricted Data and other classified information; and
(2) add new performance requirements, those relating to business and
financial systems, which also will be significant to the fee
determining process. DOE proposes to add the new performance
requirements because it believes adding emphasis to the importance of
strong business and financial systems to its fee policy will enhance
the effectiveness of its contract administration and its mission
accomplishment.
[cir] Paragraph (e): DOE proposes to reorganize and revise the
policy on multiple contract types and fee arrangements at 970.1504-1-
4(e) and move it to paragraph (e). DOE proposes to remove the policy on
cost reduction incentives at 970.1504-1-4(f) and the associated clause
at 970.5215-4, which is prescribed at 970.1504-5(c). DOE no longer uses
the types of cost reduction incentives at 970.1504-1-4(f), using
instead value engineering, which is covered in the DOE Acquisition
Guide and the Federal Acquisition Regulation.
[cir] Paragraph (f): DOE proposes to reorganize and revise the
policy at 970.1504-1-4(g) and move it to paragraph (f).
<bullet> Section 970.1504-1-4: DOE proposes to reorganize and
revise this section to simplify and state explicitly the construct
underlying, the sequence for calculating, and the step-by-step process
for determining the total available fee for an M&O contract and include
a numerical example for determining the total available fee for a one-
year period of an M&O contract. While this section articulates the gist
of the current fee policy, there is neither an exact parallel to this
section in the current fee policy nor a direct link to specific
language in the current fee policy. This section is based in large part
on the current fee policy's sections on fee base, fee schedules,
classification factors, and significant factors, which are found at
970.1504-1-7, 970.1504-1-6, 970.1504-1-9, 970.1504-1-5, respectively.
<bullet> Section 970.1504-1-5: DOE proposes to revise and
reorganize the section to clarify DOE's policy on the calculation of
fee base, which is the
[[Page 73656]]
estimate of necessary allowable costs, with some exclusions. DOE's
policy on fee base is moved here from 48 CFR 970.1504-1-7. In addition,
the section was revised to align with the proposed revised section 48
CFR 970.1504-1-4.
<bullet> Section 970.1504-1-6: DOE proposes to revise and
reorganize the section to clarify DOE policy on the calculation of the
M&O maximum total available fee amount, for a one-year period once the
total fee base for the year is determined, including the use of the DOE
M&O fee schedules (970.1504-1-6), which list the maximum amount of
fixed fee. The DOE fee schedules that are based on three types of
efforts (Production, research and development (R&D), environmental
management (EM)). The section was revised to align with the proposed
revised section 48 CFR 970.1504-1-4. In addition, DOE proposes to
revise the section to better align the section with DOE policy that
that an M&O contract is an ``incentive contract'' unless otherwise
approved by the SPE.
<bullet> Section 970.1504-1-7: DOE proposes to revise and
reorganize the section to clarify DOE policy on application of the DOE
facility classification factors in the calculation of the maximum total
available fee, to increase the Classification Factor for research and
development conducted at a laboratory from 1.25 to 1.5, to add a
Classification Factor (of 1) for efforts performed using a fixed fee,
and to relocate the policy on application of facility classification
factors from current 48 CFR 970.1504-1-9 to this section. In addition,
DOE proposes revising the section to align with the revisions to 48 CFR
970.1504-1-4. DOE proposes to increase the Classification Factor for
research and development conducted at a laboratory because of the
increased importance DOE places on such efforts. DOE proposes to add
the Classification Factor for efforts performed using a fixed fee
because, despite the rare use of fixed fee, use of a fixed fee is
permitted by DOE's fee policy.
<bullet> Section 970.1504-1-8: DOE proposes to revise and
reorganize the section to clarify DOE policy on consideration of the
specific circumstances of the procurement in the calculation of the
maximum total available fee, the application of DOE significant factors
for each type of effort, and to relocate the DOE policy on the
consideration of significant factors from current 48 CFR 970.1504-1-5
to this section.
<bullet> Section 970.1504-1-9: DOE proposes to revise the section
to clarify the sequence for calculating, and the step-by-step process
for determining, the maximum total available fee for an M&O contract.
In addition, DOE proposes to revise the section to align with revisions
to section 48 CFR 970.1504-1-4.
<bullet> Section 970.1504-1-10: DOE proposes to revise the section
to reorganize and clarify the policy for calculating the maximum total
available fee for an M&O contract, the policy for the length of
evaluation periods, the policy for allocating the maximum total
available fee amount for a one-year period, and the policy for the use
of evaluation periods greater than one year. DOE proposes to relocate
the policy on the length of evaluation periods and the use of
evaluation periods greater than one year from current 48 CFR 970.1504-
1-2(c) and (d) to this section.
<bullet> Section 970.1504-1-11: DOE proposes to revise the section,
which is simply a repetition of the last step in calculating the
maximum total available fee for a contract. This section is aligned
with the revisions in section 48 CFR 970.1504-1-4.
<bullet> Section 970.1504-2-1: DOE proposes to amend this section
to maintain its current guidance on cost or pricing data (relocated
from current 970.1504-3-1). DOE also proposes to delete its current
guidance: on the documentation of the fee prenegotiation objective
(970.1504-1-11); and on the price negotiation (970.1504-2). The
language in the deleted sections is unnecessary either because it is
primarily procurement guidance adequately covered elsewhere (among
other places, at 48 CFR 15.406-1 and 15.406-3 and internal DOE
guidance) or primary funding guidance that should be addressed in the
Office of Chief Financial Officer's guidance.
<bullet> Section 970.1504-3: DOE proposes to move the policy
currently located at 48 CFR 970.1504-5 to this section. DOE's proposed
revisions to the text of 970.1504-5 include:
[cir] deleting references to the Total Available Fee clause's
Alternates I through IV, currently found at 48 CFR 970.1504-5(a)(1)
through (4) because elsewhere DOE is proposing revising the Total
Available Fee clause and eliminating its Alternates I through IV;
[cir] deleting the prescription for the Cost Reduction clause
(currently found at 970.1504-5(c)) because DOE no longer uses cost
reductions incentives (DOE is also proposing eliminating the policy and
clause for cost reductions incentives, found at 970.1504-1-4(f) and
970.5215-4, respectively, because DOE uses value engineering instead of
cost reduction incentives);
[cir] deleting the references to the clause at 970.5215-3's
Alternates I and II, found at 48 CFR 970.1504-5(b)(2) and (3) because
elsewhere DOE is proposing revising the clause to eliminate the need
for the Alternates; and
[cir] revising for clarity DOE's policy on using the Limitation on
Fee solicitation provision (found at 970.5215-5).
<bullet> Section 970.1706-1: DOE proposes to amend this section to
clarify the DOE policy on the award, renewal, and extension of M&O
contracts.
[cir] Paragraph (a): DOE proposes to amend this paragraph to
clarify the DOE policy that: (1) effective performance under an M&O
contract is facilitated by the use of a relatively long contract term;
(2) only the Secretary can authorize the use of an M&O contract; and
(3) only the Secretary can renew the original authorization of an M&O
contract.
[cir] Paragraph (a)(1): DOE proposes to add this paragraph to
reorganize content and clarify DOE policy that an M&O contract shall
provide for a base term not to exceed the lessor of five years or the
maximum term the Secretary authorized.
[cir] Paragraph (a)(2): DOE proposes to add this paragraph to
reorganize content and clarify DOE policy that: (1) the contract may
include option terms provided no option term exceeds the lessor of five
years or the maximum term the Secretary authorized; (2) the sum of base
term and the option terms does not exceed the lessor of 10 years or the
maximum term the Secretary authorized for the contract; (3) in addition
to the base term and the option terms just described, an M&O contract
for a national laboratory that is competitively awarded may provide for
award term incentives provided none exceed the maximum term the
Secretary authorized for each; and (4) the sum of base term, option
terms, and award terms shall not exceed the lessor of 20 years or the
maximum term the Secretary authorized for the contract.
[cir] Paragraph (a)(3): DOE proposes to add this paragraph to
reorganize content and clarify DOE policy that after the Secretary's
original authorization of the use of the M&O contract has expired, any
continuation of work under an M&O contract must be preceded by the
Secretary's renewal of the authorization for use of an M&O contract.
[cir] Paragraph (a)(4): DOE proposes to add this paragraph to
reorganize content and clarify DOE policy that a sole source extension
of an M&O contract to the incumbent must be justified under one of the
statutory authorities listed in 48 CFR 6.302 and authorized by the
Secretary.
[[Page 73657]]
[cir] Paragraph (a)(5): DOE proposes to add this paragraph to
reorganize content and clarify DOE policy that the specific duration of
the base term, option terms, and award terms of an M&O contract must be
established concurrent with the Secretary's authorization (or renewal
of his/her authorization) to use an M&O contract (for original use,
sole source award to a new contractor, competitive award to a new
contractor or to the incumbent, or sole source extension of the
contract to the incumbent).
[cir] Paragraph (b): DOE proposes to amend this paragraph to
clarify the DOE policy that the contracting officer's decision to
exercise an option must be approved by the Senior Procurement Executive
and the cognizant Assistant Secretary(s), and that in deciding to
exercise the option, the contracting officer shall make the
determinations required by 48 CFR 17.605.
[cir] Paragraph (b)(1): DOE proposes to add this paragraph to
clarify DOE policy that for the exercise of an M&O option period, the
contracting officer shall consider the extent to which performance-
based management contract provisions are present or can be negotiated
into the contract.
[cir] Paragraph (b)(2): DOE proposes to add this paragraph to
reorganize content and clarify DOE policy that for the exercise of an
M&O option period, the contracting officer shall make the
determinations required by 48 CFR 17.605 in the manner described
therein. The content formerly located at paragraph (b) is moved here
and provides that as part of the review required by 48 CFR 17.605(b),
the contracting officer shall assess whether competing the contract
will produce a more advantageous offer than exercising the option; the
incumbent contractor's past performance under the contract; the extent
to which performance-based management contract provisions are present,
or can be negotiated into, the contract; and the impact of a change in
a contractor on the Department's discharge of its programs. The
contracting office shall address the considerations in 48 CFR 17.605 in
the decision that the exercise of the option is in the Government's
best interest. The proposed paragraph adds that the determination
described in 48 CFR 17.207(d) and (e)(2) is not required, and because
of the way in which the evaluation of cost to the Government is
performed in the award of an M&O contract that includes options, the
contracting officer need only determine the option was evaluated as
part of the initial competition and contains a maximum fee. The
contracting officer need not, for example: issue a new solicitation;
informally analyze prices; or determine the option is the more
advantageous offer.
<bullet> Sections 970.1707-1, 970.1707-3, and 970.1707-4: DOE
proposes to amend these sections to make minor editorial changes to
update references and update policy to reflect the Department of Energy
Research and Innovation Act (Pub. L. 115-246). In addition to
referencing the Economy Act (31 U.S.C. 1535), 42 U.S.C. 7259a has been
added as the authority for the Secretary to allow work to be performed
at DOE laboratories ``on behalf of other departments and agencies of
the Government, agencies of State and local governments, and private
persons and entities''.
<bullet> Sections 970.1708, 970.1708-1, 970.1708-2, and 970.1708-3:
DOE proposes to add these sections to integrate a new DOE policy on
Agreements for Commercializing Technology (ACT) and prescribe a new
clause at 48 CFR 970.5217-2. DOE proposes to add new regulatory
coverage that provides authorization for M&O contractors to conduct
third party-sponsored research at the M&O contractor's risk under
Agreements for Commercializing Technology. Whereas the requirements and
policy for Agreements for Commercializing Technology are currently
contained in DOE guidance and in special provisions included in
contracts, the proposed rule will establish regulatory coverage and
incorporate the requirements into a new clause at 48 CFR 970.5217-2.
DOE proposes the new policy and clause to allow M&O contractors to
engage with industry more flexibly on research and technology transfer
projects. Through ACT, an M&O contractor can negotiate and accept
financial and performance risks and accept terms and conditions more
consistent with industry practice that are not permitted under
Cooperative Research and Development Agreements and SPP agreements to
advance technology transfer and the commercialization of technologies.
<bullet> Section 970.1907-8: DOE proposes to add this subsection to
clarify that Contracting Officers should insert the clause at 48 CFR
5219-9, Small Business Subcontracting Plan, in all M&O solicitations
and contracts and to prescribe a new clause that supplements the FAR
clause at 48 CFR 970.5219, ``Small Business Subcontracting Plan''. The
new clause incorporates a DOE policy concerning ``Management and
Operating Contractor Subcontract Reporting Capability (MOSRC)'' to
collect key information about M&O contractor first tier subcontracts
for reporting to the Small Business Administration.
<bullet> Section 970.2201-1-1: DOE proposes to amend this section
to identify situations with non-management and operating contracts
where the applicability of management and operating contractor basic
labor policies may apply.
<bullet> Section 970.2201-1-2: DOE proposes to amend this section
in several places to identify the basis for the policies presented by
adding a citation to the underlying regulations. The amendments also
include minor textual edits for clarity, including applicability to
certain non-M&O contracts as described in section 970.2201-1-1 and
limit the scope of this section to wages, salaries, and employee
benefits under the collective bargaining agreement process. The
proposed rule also transfers more general matters from this section to
section 970.2201-1-4.
<bullet> Section 970.2201-1-3: DOE proposes to amend this section
to add language to expand the applicability of section 970.5222-1,
Collective Bargaining Agreements-Management and Operating Contracts to
certain non-M&O contracts (as described in section 970.2201-1-1) and
require that it be flowed down to subcontracts for protective services
or other services performed at a DOE-owned site that affect continuity
of operations.
<bullet> Section 970.2201-1-4: DOE proposes to add this section to
incorporate policy on critically skilled employees initially
established in DOE Acquisition Letter 94-19 and to emphasize the
connection to a contractor's compensation system and policies in the
recruitment and retention of a critically skilled workforce. This
section also emphasizes that costs in support of this policy must be
reasonable and meet allowability requirements. Lastly, the discussion
of wages, salaries, and employee benefits removed from section
970.2201-1-2 is relocated to this section.
<bullet> Sections 970.2204, 970-2204-1, and 970-2204-1-1: DOE
proposes to amend section 970.2204 to clarify that both non-management
and operating contracts and management and operating contracts are
subject to the same subpart (922.4) governing labor standards involving
construction. Accordingly, the reader is pointed to the policy in
subpart 922.4, and section 970.2204-1 is removed as duplicative.
Section 970.2204-1-1 is relocated to subpart 922.4 as well.
<bullet> Section 970.2210: DOE proposes to revise this section to
update the reference to the Service Contract Act of 1965. The section
heading is revised to
[[Page 73658]]
read ``Service contract labor standards'' and the section text updates
the reference to read ``The Service Contract Labor Standards,
historically referred to as the Service Contract Act of 1965''.
<bullet> Section 970.2270: DOE proposes to revise this section
regarding unemployment compensation to better comport with existing
federal and state unemployment compensation laws and eliminate
inconsistencies.
<bullet> Section 970.2270-2: DOE proposes to add this prescription
to ensure contracting officers include the clause at 970.5222-4,
Unemployment Compensation, in applicable solicitations and contracts
and that fill-in data are also identified by the contracting officer.
<bullet> Section 970.2301-1: DOE proposes to remove this section as
its contents include an out-of-date hyperlink, reference to the
requirements of a rescinded Executive order, and internal procedures
that are not necessary to set forth in regulation.
<bullet> Section 970.2301-2: DOE proposes to revise this section
to: (1) add a prescription for the inclusion of the clause at 952.223-
78, ``Sustainable Acquisition Program''; (2) remove prescriptions for
clauses that are proposed for removal (970.5223-6, which is removed
because the Executive order that is its basis has been revoked and
970.5223-7 which duplicates the clause at 952.223-78); and (3) remove
prescriptions for various FAR clauses as they are already prescribed in
48 CFR chapter 1 and it is unnecessary to prescribe them here.
<bullet> Section 970.2303-2-70: DOE proposes to revise this section
to update the office name in paragraph (c)(2)(ii).
<bullet> Section 970.2672-3 is amended to clarify the applicability
of 48 CFR 952.226-74 ``Workforce Restructuring and Displaced Employee
Hiring Preference'' to both non-management and operating contracts and
management and operating contracts pursuant to section 3161 of the
National Defense Authorization Act For Fiscal Year 1993.
<bullet> Section 970.2673-2: DOE proposes to revise this subsection
to change the prescription for the clause at 970.5226-3, ``Community
Commitment'', making it optional rather than mandatory.
<bullet> Section 970.2701-1: DOE proposes to revise this section to
clarify that subpart 970.27 applies to contracts for decontamination
and decommissioning activities.
<bullet> Sections 970.2702 and 970.2702-1-2: DOE proposes several
amendments to sections 970.2702 through 970.2702-6. Specifically, DOE
proposes to: (1) revise the heading to section 970.2702 and section
numbering to conform to the FAR subpart 27.2 which this subpart
supplements; and (2) consolidate clause prescriptions formerly located
in sections 970.2702-2 through 970.2702-6 into new section 970.2702-1-
2.
<bullet> Section 970.2703-1: DOE proposes to revise this section to
streamline content by removing paragraph (b)(1) through (5) as its
content is adequately addressed elsewhere, and redesignating paragraph
(c) as paragraph (b).
<bullet> Section 970.2703-2: DOE proposes to revise this section to
address more clearly when each of the patent clauses should be used
based on the type of Contractor and patent waivers granted. In
addition, paragraph (a)(2) addresses ``privately funded technology
transfer'' activities that are authorized under Alternate I of 48 CFR
970.5227-3. Although there is no specific language prescribed by an
Alternate in this clause, the instructions allow further changes to the
patent clause if DOE or the Contractor requests to further define use
of royalty funds, cost restrictions and liability related to privately
funded licensing activities. Since DOE has replaced a DEAR clause for
subcontracts to non-profit organization or small business firms with
the FAR provision at 37 CFR 401.14, a new paragraph (h) is added to
address the use of appropriate Alternates I or II for 48 CFR 952.227-11
to add agency implementing regulations and, if applicable, DOE's
Declaration of Exceptional Circumstance for substantial U.S.
manufacture.
<bullet> Section 970.2704-2: DOE proposes to revise this section
to: (1) add a sentence at the end of paragraph (a) that, in compliance
with Government-wide mandates to make research results publicly
available, references section 935.010 for R&D results conveyed in
scientific and technical information and DOE Order 241.1B which
addresses requirements for scientific and technical information that
are stored in the Office of Scientific and Technical Information
(OSTI); and (2) revise the last sentence of paragraph (e) to reflect
the new standard of not requiring the Contractor to renew copyright
exclusivity every five years, which was administratively burdensome and
hampered long-term licensing activity, but to notify Patent Counsel and
OSTI when commercial activity ceases.
<bullet> Section 970.2704-3: DOE proposes to revise this subsection
to add more clarity as to when to use either of the Rights in Data
clauses in M&O Contracts.
<bullet> Section 970.2770-2: DOE proposes to revise this subsection
to reflect the addition of the new clause at section 970.5217-2,
Agreements for Commercializing Technology (ACT), and require its
inclusion in new awards for or extensions of existing DOE laboratory or
weapon production facility M&O contracts. By authorizing the use of
ACT, the Contractor may engage with third parties with more flexibility
in terms, but the Contractor accepts greater risks in advance funding
and liability.
<bullet> Section 970.2803-1: DOE proposes to revise this section by
updating the office name in paragraph (b)(1). Additionally, in
paragraph (b)(3), DOE proposes to establish the Head of Contracting
Activity as the official responsible for approving management and
operating contractor employees' benefit plans because that individual
is better situated to make these determinations.
<bullet> Section 970.2803-2: DOE proposes to revise this section to
update the reference in the last sentence from ``(f)(3)(C)'' to
``(f)(1)(iii)(C)''.
<bullet> Section 970.3101-00-71: DOE proposes to add this section
to clarify that the cost principles of 48 CFR 31.2 and subpart 970.31
apply to M&O contracts, regardless of entity type.
<bullet> Section 970.3102-3-70: DOE proposes to revise this section
to remove the parenthetical reference in paragraph (a)(3)(i) because
DOE's fee policy no longer distinguishes between a contract for the
management and operation of a laboratory and a contract for the
management and operation of a non-laboratory.
<bullet> Section 970.3102-05-6: DOE proposes to amend this section
by removing the last sentence of paragraph (a)(6) which states ``For
purposes of designating the threshold, total compensation includes only
the employee's salary and cash bonus or incentive compensation.''
Removing this sentence increases DOE flexibility in this area to
account for other things which should be included in the definition of
total compensation, such as deferred compensation. In addition, DOE
proposes to remove paragraph (p)(1) which references the Office of
Federal Procurement Policy senior executive compensation benchmark
because that information is covered in the FAR. The proposed rule also
adds a pointer to that coverage at the end of paragraph (a)(7)(ii).
<bullet> Section 970.3200-1: DOE proposes to revise this
subsection, in paragraph (c), by removing the words ``remedy
coordination official'' and adding in their place ``Head of the
Contracting Activity''. This change is intended to improve clarity
since ``remedy coordination official'' is an undefined term that is not
widely used whereas
[[Page 73659]]
``Head of the Contracting Activity'' is universally used and understood
in the acquisition community.
<bullet> Section 970.3270: DOE proposes to amend this section by
removing section 970.5203-1, ``Management Controls,'' from the list of
standard financial management clauses at paragraph (a)(4) and
redesignating paragraphs (a)(5) through (8) as paragraphs (a)(4)
through (7). The management controls clause is prescribed elsewhere and
does not need to be prescribed here as well.
<bullet> Section 970.3501-1: DOE proposes to amend this section to
remove an obsolete reference.
<bullet> Section 970.3501-2: DOE proposes to amend this section to
update references and clarify that only a federal Contracting Officer
can obligate the Government to place work on the contract and obligate
the Government to reimburse the contractor under the contract.
<bullet> Section 970.4102-1: DOE proposes to revise this section to
update office names, remove references to a rescinded DOE Order,
clarify that Federal Energy Management Program (FEMP) concurrence is
not necessary for NNSA programs, and make minor editorial changes.
<bullet> Section 970.4207-05-01: DOE proposes to revise this
section, in paragraph (b)(4)(ii) to add the words ``if such costs have
been the subject of a DOE audit'' to the end of the sentence. This
change is proposed in order to clarify that the contracting officer
cannot resolve any questioned costs that have been the subject of a DOE
audit without first obtaining the opinion of the DOE's auditor on the
allowability of such costs.
<bullet> Section 970.4401-1: DOE proposes to amend this section to
remove Balanced Scorecard metrics as a means of evaluating purchasing
systems and allow for other metrics to be used. This change is proposed
because the Balanced Scorecard program does not include metrics for
evaluating M&O contractor purchasing systems.
<bullet> Section 970.4402-1: DOE proposes to revise this section to
add a new paragraph (c) which states that the M&O contractor's
purchasing performance, including compliance with its approved system
and methods, will be evaluated against the performance criteria and
measures set forth in 48 CFR part 44, subpart 44.3, using the
procedures articulated in DOE policies including DOE guidance on
oversight of M&O Contractor's Purchasing Systems.
<bullet> Section 970.4501-1: DOE proposes to amend this section by
revising the section heading to read ``Applicability'' and replacing
the existing section text (moved to new section 970.4501-2) with
language that clarifies the applicability of this subpart to M&O
contractors and on-site environmental management and other major prime
contractors as designated by the SPE. A reference to 41 CFR chapter 109
is also added.
<bullet> Section 970.4501-2: DOE proposes to add this section with
text taken from the former section 970.4501-1. Paragraph (a) is
modified by adding ``and environmental management, and other major
prime contractors located at DOE sites'' to the end of the first
sentence; removing the second sentence; and updating the reference to
managerial personnel in the third sentence from ``paragraph (j)'' to
``paragraph (k)''.
<bullet> Section 970.5203-1: DOE proposes to amend the ``Management
Controls'' clause, in the introductory text, by removing the words
``and 970.3270(a)(4)'' before the words ``insert the following
clause:''. It is only necessary to prescribe this clause in one
location, and the second prescription located at section 970.3270(a)(4)
was therefore removed (as described above).
<bullet> Section 970.5204-1: DOE proposes to remove the
``Counterintelligence'' clause from part 970 and relocate it to section
952.204-74, as this requirement pertains to both M&O and non-M&O
contractors.
<bullet> Section 970.5204-3: DOE proposes to revise the ``Access to
and Ownership of Records'' clause to incorporate a class deviation.
Paragraph (b) is revised to delete the parenthetical instruction to
Contracting Officers in the second sentence as well as the last
sentence of paragraph (b)(1), which lists examples of employee-related
systems of record. Paragraph (g) is revised to replace the automatic
flow down requirement based on the presence of the ``Integration of
environment, safety, and health into work planning and execution''
clause currently at section 970.5223-1 with language that requires the
contractor to flow down the clause (or maintain the applicable records
themselves) whenever the subcontract scope of work could result in
potential exposure to radioactive or other toxic substances that can
cause long term health impacts.
<bullet> Section 970.5209-70: DOE proposes to add a new M&O-
specific ``Conflicts of Interest'' clause in order to provide uniform
requirements for M&O contractors.
<bullet> Section 970.5215-1: DOE proposes to revise the ``Total
available Fee: Base Fee Amount and Performance Fee Amount'' to make
minor editorial revisions throughout to improve clarity.
<bullet> Section 970.5215-3: DOE proposes to revise the
``Conditional Payment of Fee, Profit, and other Incentives--Facility
Management Contracts'', to: add a new requirement that the contractor
must comply with its contract's business and financial systems
requirements; update references; make revisions for clarity; remove
Alternate I (it addressed contracts without security requirements; its
requirements are now combined with the basic clause); and remove
Alternate II (it addressed contracts awarded on a cost plus award fee
basis; it is no longer necessary).
<bullet> Section 970.5215-4: DOE proposes to remove the ``Cost
Reduction'' clause. Because the Department has a value engineering
policy for M&O contracts, a cost reduction clause is not necessary.
<bullet> Section 970.5215-5: DOE proposes to revise the
``Limitation on Fee'' clause by updating the reference for the clause
prescription in the introductory text and making minor editorial
changes for clarity in paragraph (b).
<bullet> Section 970.5217-1: DOE proposes to revise the ``Strategic
Partnership Projects Program (Non-DOE Funded Work)'' clause to
incorporate the Research and Innovation Act and Master Statement of
Work requirements, which reduce the transactional approvals by DOE for
previously-approved groups of projects. In paragraph (d)(3), DOE has
modified its requirements for requiring intellectual property indemnity
to allow the contractor to reserve the provision when the sponsor is a
federally-funded entity (DOE accepting liability to promote Government
funded research) or a state or local government or public university,
which may be prohibited from indemnifying others by state law.
<bullet> Section 970.5217-2: DOE proposes to add this new
``Agreements for Commercializing Technology'' clause in order to
integrate a new DOE policy that was developed to allow M&O contractors
to engage with industry more flexibly on research and technology
transfer projects. Through ACT, an M&O contractor can negotiate and
accept financial and performance risks and accept terms and conditions
more consistent with industry practice that are not permitted under
Cooperative Research and Development Agreements and SPP agreements.
Whereas the requirements and policy for Agreements for Commercializing
Technology are currently contained in DOE guidance and in special
provisions included in contracts, the proposed rule will establish
regulatory coverage and incorporate the requirements into this new
clause.
<bullet> Section 970.5219: DOE proposes to add this new ``Small
Business Subcontracting Plan'' clause, in order to integrate a new DOE
policy concerning
[[Page 73660]]
the ``Management and Operating Contractor Subcontract Reporting
Capability (MOSRC)'', a DOE system, and associated processes to collect
key information about M&O contractor first tier subcontracts for
reporting to the Small Business Administration.
<bullet> Section 970.5222-4: DOE proposes to add this new
``Unemployment Compensation'' clause to address situations where a
contractor, under federal and state unemployment rules are permitted to
opt out of paying the state unemployment insurance tax and permitted to
instead reimburse the state for actual claims paid out to its former
employees. This section requires notification to the Government of its
election and asserts governments right to review such changes to assess
budgetary and programmatic risks when opting out.
<bullet> Section 970.5223-6: DOE proposes to remove the ``Executive
Order 13423, Strengthening Federal Environmental, Energy, and
Transportation Management'' clause because Executive Order 13423 has
been rescinded.
<bullet> Section 970.5223-7: DOE proposes to remove the
``Sustainable Acquisition Program'' clause on the basis that it
duplicates the clause at section 952.223-78, which is prescribed in
section 923.172.
<bullet> Section 952.5226-1: DOE proposes to revise the ``Diversity
Plan'' clause to incorporate the more current terminology of
``Diversity, Equity, Inclusion, and Accessibility'' (DEIA) and make
minor editorial revisions. This update will better align the DOE clause
with current Administration initiatives and will clarify the broader
scope of recent DEIA initiatives.
<bullet> Section 970.5227-1: DOE proposes to revise the ``Rights in
Data-Facilities'' clause to add new definitions of Assistant General
Counsel for Technology Transfer and Intellectual Property, Department
of Energy, and Patent Counsel for clarity. The revisions also add a new
paragraph (b)(4) requiring the Contractor to deposit technical data at
the Office of Scientific and Technical Information per the DOE Order
241.1. Paragraph (c)(3) is added to allow the Government to instruct
the Contractor to assert copyright in technical data or software and
transfer title to the Government for licensing and distribution if
necessary. Paragraph (d) is modified to allow Patent Counsel to
determine what Alternates are appropriate to data rights clauses in
subcontracts. In order to allow for competitive solicitations,
Alternate II is added to include a provision in the Limited Rights
Notice to allow for the use of contractor's proprietary data in
solicitations for government facilities being constructed, modified or
decontaminated and decommissioned.
<bullet> Section 970.5227-2: DOE proposes to revise the ``Rights in
Data-Technology Transfer'' clause to add several new definitions of
Assistant General Counsel for Technology Transfer and Intellectual
Property, Department of Energy, Open Source Software, and Patent
Counsel for clarity. Paragraph (b) was broadened to allow the lab to
assert copyright from just articles to ``works'' such as drawings,
chapters in books, workshop documents, datasets, etc. that are released
to the public. This allows control of the content when the public uses
or references this copyright work, but still satisfies DOE's duty to
disseminate the results of its research. Also, Office of Scientific and
Technical Information requirements are updated in this section to
comply with DOE Order 241.1. Added paragraph (c)(3) allows the
government to direct the Contractor to assert copyright and transfer
title to the Government for further control and distribution of
technical data and software. As part of the broadening of copyright
assertion without DOE Patent Counsel approval, paragraph (d) expands
the type of data that the Contractor can protect for control without
commercializing and adds a shorter notice to the publisher if
necessary. Since paragraph (d) expanded the type of data, paragraph (e)
is revised to require DOE Patent Counsel approval when the Contractor
needs to control distribution to advance the goals of the technology
transfer mission through commercialization. When the Contractor is
granted permission to assert copyright, the five-year renewal periods
have been changed to a period of commercialization activities since
software can be useful for decades and licensees are reluctant to
commercialize for only five years if DOE Patent Counsel rejected any
extensions of time. The government may distribute copies to the public
of the copyrighted work after the period of commercialization has
ended. Paragraph (f) is added to address copyright assertion and
distribution in open source software (OSS). The Contractor must notify
the funding program that the Contractor intends to distribute the
software as OSS and the program has two weeks to object. DOE Patent
Counsel can supply that approval if a funding program doesn't exist.
This section also provides the requirements that the Contractor to
retain records, distribute OSS such as the type of OSS licenses used
and allow the public free access to software. Paragraph (g),
Subcontracting, has been revised to allow DOE Patent Counsel to approve
the use of 48 CFR 52.227-14, Rights in Data-General, or 48 CFR 52.227-
17, Rights in Data-Special Works. The definitions in section 927.409(a)
have been removed to use Alternate I of 48 CFR 52.227-14. The paragraph
(d)(3) in 927.409 has been replaced with Alternate VIII of 48 CFR
952.227-14 to allow DOE Patent Counsel to approve copyright requests.
Similarly, Alternate I of 48 CFR 952.227-17 permits DOE Patent Counsel
to direct a subcontractor to assert copyright in technical data and
transfer to the Government or a third party such as the Contractor.
This will allow the Laboratory to consolidate copyright title if
portions are generated by subcontractors. Alternate II of this clause
is added to include a provision for Limited Rights Data in the Notice
for government facilities being constructed, modified or decontaminated
and decommissioned.
<bullet> Section 970.5227-3: DOE proposes to revise the
``Technology Transfer Mission'' clause to address the M&O Contractor's
use of Trademark and Service marks with regards to the Laboratory names
and facilities. In paragraph (a), statutory updates are included to
comply with the Laboratory Modernization and Technology Transfer Act.
Paragraph (b) includes, for clarity, new definitions for Bailment,
Assignment, Strategic Partnership Projects (SPP), Agreements for
Commercializing Technology (ACT), Master Scope of Work, and Joint Work
Statement. Paragraph (d), Conflicts of Interest--Technology Transfer,
has been modified in paragraph (d)(8) to include more information when
the Contractor requests for approval of some exclusive licenses or
assignments of technology to third parties. In addition, paragraph
(d)(10) is revised to better define when the DOE is to be notified of
potential conflicts when evaluating proposals on behalf of the program.
In paragraph (f), U.S. Industrial Competitiveness, DOE has exercised
its discretion to require M&O contractors to obtain written information
from the U.S. Trade Representative (USTR) to assist in the
consideration by the M&O contractor and the DOE Contracting Officer of
a prospective foreign partner's home country's treatment of U.S.
companies' intellectual property, and whether U.S. companies have
opportunities to do collaborative research in the home country. After
many years of experience, DOE has determined that a less cumbersome
procedure, which involves relying on information available from USTR
websites, can be utilized for
[[Page 73661]]
obtaining the relevant information. A new paragraph (f)(4) is added to
address the Exceptional Circumstance Determination for U.S.
Competitiveness (substantial U.S. manufacturing) when licensing
Contractor technology. Paragraph (g) was amended to exclude CRADA
(Cooperative Research and Development Agreements) and SPP requirements
for product liability indemnity because it is covered under guidance
for those agreements. Paragraph (l) was amended to allow the annual
technology transfer plan to be included in the Annual Laboratory Plan.
Paragraph (n)(3)(iii) was added to require the CRADA Final Report
required in DOE Order 483.1 to be submitted to OSTI. Paragraph (n)(5)
conflict of interest was changed from ``preparation, negotiation, or
approval'' to ``negotiation, approval or performance'' of CRADAs since
preparing the agreements would include support staff with no control
over the content and performance is added to capture the principal
investigator's role. When requirements for providing a Technology
Partnership Ombudsman was added to the Contract, it was accidently
added to Alternate I. To correct this error, paragraph (p) was added to
move the Technology Partnership Ombudsman from Alternate I into the
contract clause. Alternate I was revised to remove the ombudsman
provision.
<bullet> Section 970.5227-4: DOE proposes to revise the
``Authorization and Consent'' clause in paragraphs (c)(1) through (3)
to replace $100,000 with ``simplified acquisition threshold'' so that
when the simplified acquisition threshold limit is increased, this
clause does not have to update the dollar value.
<bullet> Section 970.5227-5: DOE proposes to revise the ``Notice
and Assistance Regarding Patent and Copyright Infringement'' clause, in
paragraph (c) to replace $100,000 with ``simplified acquisition
threshold'' so that when the simplified acquisition threshold limit is
increased, this clause does not have to update the dollar value.
<bullet> Sections 970.5227-10 and 970.5227-12: DOE proposes to
revise the clauses at section 970.5227-10, ``Patent Rights-Management
and Operating Contracts, Nonprofit Organization or Small Business Firm
Contractor,'' and section 970.5227-12, ``Patent Rights-Management and
Operating Contracts, For-Profit Contractor,'' in order to reflect
statutory changes and addition of approved determinations of
exceptional circumstance (DEC). Paragraph (a) of both clauses adds
definitions of Initial Patent Application and Statutory Period for
clarity. Paragraph (b)(3) of the clause at section 970.5227-10
(previously located at paragraph (b)(2)) and paragraph (b)(6) of the
clause at section 970.5227-12 (previously located at paragraph (b)(5))
have been modified to clarify when the Contractor may elect title to
inventions that are covered under a DEC. Paragraph (c) of both clauses
has been revised to allow electronic reporting using the Government's
iEdison or similar system along with certain information such as award
numbers. Both clauses have changed the requirement for ``publication
approval'' to ``publication review'' requiring the Contractor Invention
Identification Procedures to address notification to DOE instead of
approval. In paragraph (g) of both clauses, the reference to 48 CFR
925.227-11 has been replaced with 37 CFR401.14 because 48 CFR 952.227-
11 has been revised with Alternates I and II for agency implementation
of the DEC. In paragraph (j), March-in Rights, both clauses were
modified to remove the four reasons where DOE can exercise this right
by referencing the statute (for nonprofit organization or small
business firm contractors) or patent waiver (for For-Profit
Contractors.) Both clauses have added paragraph (t), U.S.
Competitiveness, in compliance with the Determination of Exceptional
Circumstance for Domestic Manufacture of DOE Science and Energy
Technologies. Lastly, both clauses added a final paragraph on
Unauthorized Access to require the Contractor to adequately protect
materials related to inventions and notify DOE of a breach.
<bullet> Section 970.5227-11: DOE proposes to revise the ``Patent
Rights-Management and Operating Contracts, For-profit Contractor Non-
Technology Transfer'' clause in a few ways. First, DOE proposes to
change the clause title to remove ``Non-Technology Transfer'' and add
``No Patent Waiver'' in its place. Second the proposed rule adds a
definition of Department of Energy to paragraph (a) for clarity.
Additional changes are made to reflect statutory changes. Furthermore,
paragraph (c)(2)(vii) requires not only the B&R code but related
information such as funding announcements or SPP/CRADA numbers to make
it easier to identify inventions from other sources and paragraph
(c)(5) is modified to include reporting inventions to Government
electronic reporting systems instead of the contracting officer or
patent counsel. Finally, DOE proposes to add an ``Unauthorized Access''
paragraph (o) to require the Contractor to adequately protect materials
related to inventions and notify DOE of a breach.
<bullet> Section 970.5232-2: DOE proposes to revise the ``Payments
and Advances'' clause to: (1) re-organize and re-number the paragraphs;
(2) make editorial changes to streamline and simplify content to
improve clarity and update references; and (3) add a paragraph
concerning ``provisional fee,'' which DOE has never addressed in the
DEAR, to Alternate II. Although DOE has issued internal guidance that
defines provisional fee, articulates when it might be useful, and
specifies how to use it, neither the FAR nor the DEAR define or
addresses it. Consequently, DOE has concluded it would be prudent to
heighten awareness of DOE's view of provisional fee by including some
discussion of it in DEAR.
<bullet> Section 970.5232-3: DOE proposes to revise the ``Accounts,
Records, and Inspection'' clause to clarify (in paragraph (c)) the
contractor's responsibility to either perform a sufficient amount of
audit work of its subcontractors' incurred costs or arrange for an
audit of its subcontractors' incurred costs. Minor editorial changes
for clarity are also proposed.
<bullet> Section 970.5232-5: DOE proposes to revise the ``Liability
with Respect to Cost Accounting Standards'' clause, in the introductory
text, by updating the citation for the clause prescription.
<bullet> Section 970.5232-6: DOE proposes to revise the ``Strategic
Partnership Project Funding Authorization'' clause, in the introductory
text, by updating the citation for the clause prescription.
<bullet> Section 970.5232-7: DOE proposes to revise the ``Financial
Management System'' clause to: (1) reorganize and number the
paragraphs; (2) clarify that contractors must maintain and administer a
financial management system that is in accordance with Generally
Accepted Accounting Principles (GAAP) for Federal Entities as defined
by the Federal Accounting Standards Advisory Board and implemented by
the DOE Financial Management Handbook and other implementing policies;
and (3) make minor editorial changes for clarity.
<bullet> Section 970.5235-1: DOE proposes to revise the ``Federally
Funded Research and Development Center Sponsoring Agreement'' clause to
make minor editorial revisions and to clarify that only the Contracting
Officer can place work on the contract and obligate the Government to
reimburse the Contractor for the work.
<bullet> Section 970.5244-1: DOE proposes to revise the
``Contractor Purchasing System'' clause to: (1) clarify the
[[Page 73662]]
Contactor's obligations regarding: maintaining documentation; providing
audit or a sufficient amount of audit work; and for which subcontracts
the Contractor must provide audit or a sufficient amount of audit work;
(2) change the approval level for subcontractor indemnification
requests from the SPE to the HCA in consultation with local legal
counsel in paragraph (l) in order to give flexibility for local level
approval of routine, low risk indemnity; (3) add seven clauses to the
list of required subcontract flowdown requirements in paragraph (x);
and (4) update references and make minor editorial changes for clarity.
<bullet> Section 970.5245-1: DOE proposes to revise the
``Property'' clause to add references to 41 CFR chapters 102 and 109
and make minor editorial changes for clarity.
III. Public Participation
DOE will accept comments, data, and information regarding this NOPR
on or before the date provided in the DATES section at the beginning of
this proposed rule. Interested parties may submit comments, data, and
other information using any of the methods described in the ADDRESSES
section at the beginning of this document.
Submitting comments via <a href="http://www.regulations.gov">www.regulations.gov</a>. The
<a href="http://www.regulations.gov">www.regulations.gov</a> web page will require you to provide your name and
contact information. Your contact information will not be publicly
viewable except for your first and last names, organization name (if
any), and submitter representative name (if any). If your comment is
not processed properly because of technical difficulties, DOE will use
this information to contact you. If DOE cannot read your comment due to
technical difficulties and cannot contact you for clarification, DOE
may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment itself or in any documents attached to your
comment. Any information that you do not want to be publicly viewable
should not be included in your comment, nor in any document attached to
your comment. Otherwise, persons viewing comments will see only first
and last names, organization names, correspondence containing comments,
and any documents submitted with the comments.
Do not submit to <a href="http://www.regulations.gov">www.regulations.gov</a> information the disclosure of
which is restricted by statute, such as trade secrets and commercial or
financial information (hereinafter referred to as Confidential Business
Information (``CBI'')). Comments submitted through <a href="http://www.regulations.gov">www.regulations.gov</a>
cannot be claimed as CBI. Comments received through the website will
waive any CBI claims for the information submitted. For information on
submitting CBI, see the Confidential Business Information section
below.
DOE processes submissions made through <a href="http://www.regulations.gov">www.regulations.gov</a> before
posting. Normally, comments will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, your comment may not be viewable for up to several
weeks. Please keep the comment tracking number that <a href="http://www.regulations.gov">www.regulations.gov</a>
provides after you have successfully uploaded your comment.
Submitting comments via email or postal mail. Comments and
documents submitted via email or postal mail also will be posted to
<a href="http://www.regulations.gov">www.regulations.gov</a>. If you do not want your personal contact
information to be publicly viewable, do not include it in your comment
or any accompanying documents. Instead, provide your contact
information in a cover letter. Include your first and last names, email
address, telephone number, and optional mailing address. The cover
letter will not be publicly viewable as long as it does not include any
comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. If you submit via postal mail,
please provide all items on a CD, if feasible, in which case it is not
necessary to submit printed copies. No telefacsimiles (faxes) will be
accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are written in English, and that are free of any defects or viruses.
Documents should not contain special characters or any form of
encryption and, if possible, they should carry the electronic signature
of the author.
Confidential Business Information
Pursuant to 10 CFR 1004.11, any person submitting information that
he or she believes to be confidential and exempt by law from public
disclosure should submit via email or postal mail two well-marked
copies: One copy of the document marked ``confidential'' including all
the information believed to be confidential, and one copy of the
document marked ``non-confidential'' that deletes the information
believed to be confidential. Submit these documents via email or on a
CD, if feasible. DOE will make its own determination about the
confidential status of the information and will treat it according to
its determination. It is DOE's policy that all comments, including any
personal information provided in the comments, may be included in the
public docket, without change and as received, except for information
deemed to be exempt from public disclosure.
IV. Regulatory Review
A. Review Under Executive Orders 12866, 13563, and 14094
Executive Order (E.O.) 12866, ``Regulatory Planning and Review,''
as supplemented and reaffirmed by E.O. 13563, ``Improving Regulation
and Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011), and amended by
E.O. 14094, ``Modernizing Regulatory Review,'' 88 FR 21879 (April 11,
2023), requires agencies, to the extent permitted by law, to (1)
propose or adopt a regulation only upon a reasoned determination that
its benefits justify its costs (recognizing that some benefits and
costs are difficult to quantify); (2) tailor regulations to impose the
least burden on society, consistent with obtaining regulatory
objectives, taking into account, among other things, and to the extent
practicable, the costs of cumulative regulations; (3) select, in
choosing among alternative regulatory approaches, those approaches that
maximize net benefits (including potential economic, environmental,
public health and safety, and other advantages; distributive impacts;
and equity); (4) to the extent feasible, specify performance
objectives, rather than specifying the behavior or manner of compliance
that regulated entities must adopt; and (5) identify and assess
available alternatives to direct regulation, including providing
economic incentives to encourage the desired behavior, such as user
fees or marketable permits, or providing information upon which choices
can be made by the public. Section 6(a) of E.O. 12866 also requires
agencies to submit ``significant regulatory actions'' to the Office of
Information and Regulatory Affairs (OIRA) for review. This proposed
rule has been determined to be a ``significant regulatory action''
under Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993). Accordingly, this proposed rule was reviewed
under that Executive order by OIRA of the Office of Management and
Budget (OMB).
[[Page 73663]]
Consistent with Executive Orders 12866, 13563 and 14094, DOE issues
this proposed rule only on a reasoned determination that the benefits
of the rule justify its costs, and, in choosing among alternative
regulatory approaches, DOE has selected those approaches that maximize
net benefits. DOE proposes a broad but largely procedural revision of
its acquisition regulation to update and streamline the policies,
procedures, provisions, and clauses that are currently applicable to
its contracts.
The proposed rule seeks to update, clarify, or eliminate coverage
that is unclear, obsolete, or unnecessarily duplicates the FAR;
incorporate class deviations into the coverage; streamline the
coverage's policies and procedures where appropriate (taking into
account DOE's and its contractors' actual experiences); and add several
new minor clauses in order to standardize local clause language
throughout the department by eliminating the multiple versions of local
clauses in current use. While the proposed rule does include several
minor policy revisions, none of the revisions are substantial and in
total they will have negligible impact on DOE's operations, its
contractors, or the economy. The revisions do not in any specific case,
or in total, substantially change the existing DEAR or how DOE and DOE
contractors adhere to the DEAR. Most of these proposed changes would
not generate any additional costs.
Nonetheless, DOE would like to highlight several changes to the
DEAR that raise potential cost burden concerns and discuss the expected
impacts of these changes.
First, the proposed rule includes a revision of the Facility
Clearance clause and associated policy coverage to incorporate a pre-
award Interim Access procedure and allow for final Facility Clearance
post-award. This change should not result in any significant costs and
is intended to benefit the Government by leveraging interim access
authorizations for key contractor personnel and improving efficiencies
in the timeliness of contract awards, and in contract management.
Additionally, DOE proposes to revise the M&O fee policy to simplify
the explanation of fee calculations, delete outdated requirements, and
raise the classification factor for R&D laboratory from 1.25 to 1.5.
These changes should not result in any significant costs. Most of the
changes are editorial in nature, and are internal procedures directed
to DOE contracting officers who will benefit from the simplified
explanation of fee calculations. The change in classification factor
will not result in any significant cost increase since DOE expects no
change to the total available fees under these contracts. The revisions
are intended to reduce the administrative burden associated with
routine requests to the SPE to exceed the total available fees
calculated using the existing classification factor.
Furthermore, DOE proposes to add several new contract clauses. Four
of these (Agreements for Commercializing Technology; Small Business
Subcontracting Plan; Conditional Payment of Fee, Profit, and Other
Incentives; Identification of Contractor Employees) are substantially
similar to clauses already widely used in DOE contracts. As a result,
these four changes would not result in any added burden or costs but
would benefit the Department and its contractors by standardizing these
clauses across contracts.
The entirely new clauses are:
<bullet> A clause to address situations where a M&O contractor is
permitted under federal and state unemployment rules to opt out of
paying the state unemployment insurance tax and instead reimburse the
state for actual claims paid out to its former employees. The proposed
clause requires notification to the government of the contractor's
election and asserts the government's right to review such changes to
assess budgetary and programmatic risks when opting out. This clause
only applies to M&O contracts and the notification required poses no
significant burden or cost.
<bullet> A clause to address conflicts of interest, tailored to M&O
contracts. The current DEAR requires M&O contracts to contain an
organizational conflict of interest clause substantially similar to the
clause at section 952.209-72. The proposed clause tailors that existing
clause specifically for M&O contracts in an attempt to provide uniform
requirements. The clause only applies to M&O contracts and poses no
significant additional burden or cost, but the consistency across M&O
contracts will benefit the Government in contract award and
administration.
<bullet> A clause to clarify the policy and procedures for
integrating DOE Directives into non-M&O contracts. Contractor
requirements documents (CRDs), attached to DOE Directives, have been
integrated into non-M&O contracts as needed for a long time. The
addition of the proposed clause, along with the general information
section and clause prescription is simply intended to codify the
existing process of integrating the requirements of DOE Directives into
non-M&O contracts on a bilateral basis and imposes no additional burden
or cost.
Finally, many of the proposed changes would result in benefits to
the public. Because the DEAR has not had a comprehensive update in
decades, it contains outdated and unused content. Additionally, it has
citations to outdated laws and regulations and contains sections that
are duplicative of the FAR or that are more appropriate for internal
procedures and policies. The proposed changes would streamline the
DEAR, make it easier to read, and would reflect current practice and
requirements.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA)
requires preparation of an initial regulatory flexibility analysis for
any rule that by law must be proposed for public comment, unless the
agency certifies that the rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
As required by Executive Order 13272, ``Proper Consideration of Small
Entities in Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE
published procedures and policies on February 19, 2003, to ensure that
the potential impacts of its rules on small entities are properly
considered during the rulemaking process. 68 FR 7990. The Department
has made its procedures and policies available on the Office of General
Counsel's website: <a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>.
The DEAR governs all DOE acquisitions which obligate appropriated
funds. Using data from its Integrated Data Warehouse, DOE estimates
that it currently has approximately 3,200 prime contractors whose
contracts are governed in part by the DEAR and that approximately 2,000
of those contractors are small entities under the RFA. Therefore, DOE
has reason to believe that the proposed rule, which is a comprehensive
update of the DEAR, could affect a substantial number of small
entities.
However, DOE expects that the proposed rule would not have a
significant economic impact on those small entities. In fact, DOE
expects that the overall impacts of the proposed rule would benefit
small entities because the proposed changes would, among other things,
revise or remove outdated information and citations, remove extraneous
procedural information that applies only to DOE's internal procedures,
and remove policy or procedures duplicative of FAR requirements.
[[Page 73664]]
Moreover, proposed changes that are not merely technical or
procedural primarily apply to DOE's twenty-three M&O contracts. An M&O
contract is an agreement by which a private sector entity operates a
DOE facility, such as a national laboratory. None of DOE's M&O
contracts are held by small entities, and therefore changes to those
contracts do not directly impact small entities.
Furthermore, even if M&O contractors could be considered small
entities under the RFA, the proposed changes that would only impact M&O
contracts are not economically significant.
<bullet> DOE's proposed changes to the M&O fee policy sections
would simplify and state explicitly the methodology Contracting
Officers are to utilize for determining the total available fee for an
M&O contract. The revisions are primarily intended to reduce the
administrative burden for Contracting Officers. For instance, DOE's
proposed rule clarifies that the maximum total available fee amount for
an M&O contract may not exceed the fee derived from calculations
included in the policy unless approved in advance by the SPE or
designee. Additionally, the proposed rule includes an increase in the
classification factor for R&D laboratory from 1.25 to 1.5. This change
would impact 16 M&O contractors who currently operate national
laboratories (all of which are managed and operated by large entities)
but should not have a significant economic impact because DOE does not
anticipate an increase in the total available fees approved for these
contracts.
<bullet> DOE proposes to add a clause at section 970.5222-4 to
address situations where a M&O contractor is permitted under Federal
and state unemployment rules to opt out of paying the state
unemployment insurance tax and instead reimburse the state for actual
claims paid out to its former employees. The proposed clause requires
notification to the government of the contractor's election and asserts
the government's right to review such changes to assess budgetary and
programmatic risks when opting out. DOE does not believe that the
notification would result in any economic impact.
<bullet> DOE also proposes to add a clause at section 970.5209-70
to address conflicts of interest, tailored to M&O contracts. The
current DEAR requires M&O contracts to contain an organizational
conflict of interest clause substantially similar to the clause at
section 952.209-72. The proposed clause tailors that existing clause
specifically for M&O contracts in an attempt to provide uniform
requirements and poses no significant additional burden or cost.
Therefore, DOE does not believe that the new clause will impose a
significant economic impact.
<bullet> DOE proposes to add two clauses specific to M&O
contractors: Agreements for Commercializing Technology at section
970.5217-2 and Small Business Subcontracting Plan at section 970.1907-
8. These clauses are substantially similar to clauses already widely
used in DOE contracts, and would therefore not have a significant
economic impact.
Finally, the remaining substantive revisions in the proposed rule
that are applicable to non-M&O contracts would not have a significant
economic impact.
<bullet> The proposed rule includes a revision of the Facility
Clearance provision at section 952.204-73, which is required in all
solicitations for which the contract work is anticipated to require
access to classified information or special nuclear material. The
current provision requires a full Facility Clearance prior to the award
of a contract requiring access to classified information, and prior to
granting any Interim Access Authorizations to key management personnel.
The proposed revision would provide a process that permits contract
award prior to granting a full Facility Clearance, and permit contract
award prior to granting Interim Access Authorizations to key management
personnel. There is no change to the processes themselves, only to the
timing of the processes.
<bullet> DOE proposes to add a clause to clarify the policy and
procedures for integrating DOE Directives into non-M&O contracts.
Contractor requirements documents (CRDs), attached to DOE Directives,
have been integrated into non-M&O contracts as needed for a long time.
The addition of the proposed clause, along with the general information
section and clause prescription is simply intended to codify the
existing process of integrating the requirements of DOE Directives into
non-M&O contracts on a bilateral basis and imposes no additional burden
or cost to the contractors.
<bullet> The proposed rule includes two new clauses: Conditional
Payment of Fee, Profit, and Other Incentives at section 952.242-71 and
Identification of Contractor Employees at section 952.203-1. These
clauses are substantially similar to clauses already widely used in DOE
contracts, and would therefore not have a significant economic impact.
Accordingly, DOE certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities,
and, therefore, no regulatory flexibility analysis has been prepared.
C. Review Under the Paperwork Reduction Act of 1995
This rulemaking imposes no new information or record keeping
requirements. Accordingly, Office of Management and Budget clearance is
not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et
seq.) Existing information collections imposed by the Department of
Energy Acquisition Regulation are covered by OMB Control Number 1910-
4100.
D. Review Under the National Environmental Policy Act of 1969
DOE analyzed this proposed rule in accordance with the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and
DOE's NEPA implementing regulations (10 CFR part 1021). DOE has
determined that the proposed rule fits within the following categorical
exclusion listed in appendix A to subpart D of part 1021: A6
(Procedural rulemakings, including rulemaking under 48 CFR chapter 9
establishing procedures for technical and pricing proposals and
establishing contract clauses and contracting practices for the
purchase of goods and services). Therefore, this proposed rule does not
require the preparation of either an environmental impact statement or
environmental assessment pursuant to NEPA.
E. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 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. The Executive order requires agencies to
examine the constitutional and statutory authority supporting any
action that would limit the policymaking discretion of the States and
to carefully assess the necessity for such actions. The Executive order
also requires agencies to have an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
On March 14, 2000, DOE published a statement of policy describing the
intergovernmental consultation process it will follow in the
development of such regulations. 65 FR 13735. DOE has determined that
this proposed rule does not limit the policymaking discretion of the
States. No further action is required by Executive Order 13132.
[[Page 73665]]
F. 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
Federal 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. 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, this rule meets the relevant standards of Executive
Order 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a proposed regulatory action likely to result in a rule that may
cause the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector of $100 million or more in any one
year (adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a proposed ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect small governments. On March 18, 1997,
DOE published a statement of policy on its process for
intergovernmental consultation under UMRA (62 FR 12820) (This policy is
also available at: <a href="http://www.energy.gov/gc/guidance-opinions">www.energy.gov/gc/guidance-opinions</a> under ``Guidance
& Opinions'' (Rulemaking)). DOE examined the proposed rule according to
UMRA and its statement of policy and has determined that the rule
contains neither an intergovernmental mandate, nor a mandate that may
result in the expenditure by State, local, and Tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
year. Accordingly, no further assessment or analysis is required under
UMRA.
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 that may affect family well-being.
This proposed rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Review Under Executive Order 12630
The Department has determined, under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights,'' 53 FR 8859 (March 18, 1988), that this proposed rule
would not result in any takings which might require compensation under
the Fifth Amendment to the United States Constitution.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of 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 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).
Pursuant to OMB Memorandum M-19-15, Improving Implementation of the
Information Quality Act (April 24, 2019), DOE published updated
guidelines which are available at: <a href="http://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf">www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf</a>.
DOE has reviewed this proposed rule under the OMB and DOE
guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
K. 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
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any proposed
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 proposed
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.
This proposed rule, which revises and updates DOE's acquisition
regulation, would not have a significant adverse effect on the supply,
distribution, or use of energy and, therefore, is not a significant
energy action.
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking and request for comment.
List of Subjects
48 CFR Parts 901, 902, 909, 912, 915, 916, 926, and 951
Government procurement.
48 CFR Part 903
Antitrust, Conflict of interest, Government procurement.
48 CFR Part 904
Classified information, Government procurement.
[[Page 73666]]
48 CFR Part 908
Government procurement, Motor vehicles, Printing, Utilities.
48 CFR Part 917
Government procurement, Reporting and recordkeeping requirements,
Research.
48 CFR Part 919
Government procurement, Minority businesses, Small businesses,
Women.
48 CFR Part 922
Equal employment opportunity, Government procurement, Labor,
Reporting and recordkeeping requirements.
48 CFR Part 923
Drug abuse, Government procurement, Radiation protection.
48 CFR Part 925
Foreign trade, Government procurement.
48 CFR Part 927
Copyright, Government procurement, Inventions and patents.
48 CFR Part 931
Accounting, Government procurement.
48 CFR Part 932
Accounting, Government procurement, Loan programs--energy, Loan
programs--National defense.
48 CFR Part 933
Administrative procedure and practice, Government procurement.
48 CFR Part 935
Government procurement, Research.
48 CFR Parts 936 and 952
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 941
Government procurement, Utilities.
48 CFR Part 942
Accounting, Government procurement.
48 CFR Part 945
Government procurement, Government property.
48 CFR Part 970
Accounting, Classified information, Drug abuse, Government
procurement, Insurance, Labor, Minority businesses, Reporting and
recordkeeping requirements, Small businesses, Surety bonds, Taxes,
Whistleblowing, Women.
Signing Authority
This document of the Department of Energy was signed on August 2,
2023, by William J. Quigley, Deputy Associate Administrator,
Partnership and Acquisition Services, National Nuclear Security
Administration, pursuant to delegated authority from the Administrator,
National Nuclear Security Administration, and John R. Bashista,
Director, Office of Acquisition Management, Department of Energy,
pursuant to delegated authority from the Secretary of Energy. These
documents with the original signature and date are maintained by DOE/
NNSA. For administrative purposes only, and in compliance with
requirements of the Office of the Federal Register, the undersigned DOE
Federal Register Liaison Officer has been authorized to sign and submit
the document in electronic format for publication, as an official
document of the Department of Energy. This administrative process in no
way alters the legal effect of this document upon publication in the
Federal Register.
Signed in Washington, DC, on August 2, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE proposes to amend
chapter 9 of title 48 of the Code of Federal Regulations as set forth
below:
PART 901--FEDERAL ACQUISITION REGULATIONS SYSTEM
0
1. The authority citation for part 901 continues to read as follows:
Authority: 42 U.S.C. 7101 et. seq. and 50 U.S.C. 2401 et seq.
0
2. Section 901.103 is revised to read as follows:
Sec. 901.103 Authority.
The DEAR and amendments thereto are issued by the Senior
Procurement Executives (SPEs) of the Department of Energy (DOE) and the
National Nuclear Security Administration (NNSA). The SPEs may also
approve deviations from the DEAR, together and individually. The DOE
SPE delegation is pursuant to a delegation from the Secretary of Energy
in accordance with the authority of section 644 of the Department of
Energy Organization Act (42 U.S.C. 7254), section 205(c) of the Federal
Property and Administrative Services Act of 1949, as amended (40 U.S.C.
121(c)(2)), and other applicable laws. The NNSA SPE delegation is
pursuant to a delegation from the Administrator of the NNSA, in
accordance with section 3212 of the National Nuclear Security
Administration Act (50 U.S.C. 2402), section 205(c) of the Federal
Property and Administrative Services Act of 1949, as amended (40 U.S.C.
121(c)(2)), and other applicable laws. Except for the authorities
designated as non-delegable, the SPEs are delegated the authorities
assigned to the Agency Head in the FAR. A reference to the SPE refers
to the DOE SPE and the NNSA SPE, unless otherwise indicated.
Sec. 901.301.70 [Redesignated as 901.301-70]
0
3. Section 901.301.70 is redesignated as section 901.301-70.
0
4. Newly redesignated section 901.301-70 is revised to read as follows:
Sec. 901.301-70 Other issuances related to acquisition.
In addition to the FAR and DEAR, there are other issuances which
deal with acquisition. Among these are the Federal Property Management
Regulation (41 CFR chapter 101), the Federal Management Regulation (41
CFR chapter 102), the DOE Property Management Regulation (41 CFR
chapter 109), and DOE Directives. The Department also maintains the DOE
Acquisition Guide (``the Guide''), which has procedural guidance for
the acquisition community. The DOE Acquisition Guide serves this
purpose by identifying relevant internal standard operating procedures
to be followed by both procurement and program personnel who are
involved in various aspects of the acquisition process. The Guide also
is intended to be a repository of best practices found throughout the
agency that reflect specific illustrations of techniques which might be
helpful to all readers. The Guide is at <a href="https://www.energy.gov/management/articles/department-energy-acquisition-guide">https://www.energy.gov/management/articles/department-energy-acquisition-guide</a>.
0
5. Subpart 901.4 is added to read as follows:
Subpart 901.4--Deviations from the DEAR
Sec.
901.401 Definition.
901.403 Individual deviations.
901.404 Class deviations.
Subpart 901.4--Deviations from the DEAR
Sec. 901.401 Definition.
A deviation from the DEAR is defined as the issuance or use of a
policy, procedure, solicitation provision, contract clause, method, or
practice of conducting acquisition actions of any kind at any stage of
the acquisition process that is inconsistent with the DEAR.
[[Page 73667]]
Sec. 901.403 Individual deviations.
Requests for individual deviations from the FAR or the DEAR shall
be submitted to the cognizant Senior Procurement Executive (SPE), that
is DOE or NNSA, (or designee) for approval. Requests shall cite the
specific part of the FAR or DEAR from which it is desired to deviate,
shall set forth the nature of the proposed deviation(s), and shall give
the reasons for the action requested.
Sec. 901.404 Class deviations.
Requests for class deviations from the FAR or the DEAR shall be
submitted to the cognizant SPE, that is DOE or NNSA, (or designee) for
processing in accordance with FAR 1.404 and this section. Requests
shall include the same information prescribed in 901.403 for individual
deviations.
0
6. Amend section 901.602-3 by revising paragraph (b)(3) to read as
follows:
Sec. 901.602-3 Ratification of unauthorized commitments.
(b) * * *
(3) The ratification authority of the DOE and NNSA Senior
Procurement Executives in paragraph (b)(2) of this section is delegated
to the Head of the Contracting Activity (HCA) for individual
unauthorized commitments of $250,000 or under. The ratification
authority of the HCA is nondelegable.
Sec. 901.603-1 [Amended]
0
7. Amend section 901.603-1 by removing the text ``DOE Order 361.1B''
and adding in its place ``DOE Order 361.1''.
Sec. 901.603-70 [Amended]
0
8. Amend section 901.603-70 by removing the text ``DOE Order 541.1B''
and adding in its place ``DOE Order 541.1''.
PART 902--DEFINITIONS OF WORDS AND TERMS
0
9. The authority citation for part 902 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
0
10. Amend section 902.101 by revising the definition of ``Senior
Procurement Executive'' to read as follows:
Sec. 902.101 Definitions.
* * * * *
Senior Procurement Executive means for the Department of Energy,
the Director, Office of Acquisition Management and for the National
Nuclear Security Administration, the Deputy Associate Administrator for
the Office of Partnership and Acquisition Services.
PART 903--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
11. The authority citation for part 903 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
0
12. Section 903.104-7 is revised to read as follows:
Sec. 903.104-7 Violations or possible violations.
(a) Except for Headquarters activities, the individual within DOE
responsible for fulfilling the requirements of FAR 3.104-7(a)(1) and
(2), relative to contracting officer conclusions on the impact of a
violation or possible violation of subsections 27 (a), (b), (c) or (d)
of the Office of Federal Procurement Policy Act, shall be the
individual who has procurement authority and is one supervisory level
above the Contracting Officer. The legal counsel is the Chief Counsel
for the Operations Offices or the Federal Energy Technology Center; the
Counsel, or the Chief Counsel, for the Support Offices or the Naval
Reactors Offices; the General Counsel for National Nuclear Security
Administration (NNSA), and the General Counsel for the Power
Administrations. For Headquarters activities, the individual designated
to perform the responsibilities in FAR 3.104-7(a)(1) and (2) regarding
questions of disclosure of proprietary or source selection information
is the Assistant General Counsel for Procurement and Financial
Assistance. The designated individual for other questions regarding FAR
3.104-7(a)(1) and (2) for Headquarters activities, or for any other
office that does not have authority through procurement operations, is
the Agency Ethics Official (Designated Agency Ethics Official).
0
13. Section 903.1003 is added to read as follows:
Sec. 903.1003 Requirements.
In accordance with FAR subpart 7.5, DOE does not contract for
inherently governmental functions. However, DOE may contract for
services that can require contractors to perform duties that require
regular contact with DOE and the public related to DOE's mission. To
ensure that all parties know the status of individuals as contractor
personnel, contractors and their employees must properly identify
themselves as contractors in all DOE internal and external
communications and meetings.
0
14. Section 903.1004 is revised to read as follows:
Sec. 903.1004 Contract clauses.
(a) The Contracting Officer shall insert the DOE website address
<a href="https://www.energy.gov/sites/prod/files/2017/05/f34/HotlinePoster.pdf">https://www.energy.gov/sites/prod/files/2017/05/f34/HotlinePoster.pdf</a>
in paragraph (b)(3)(ii) of the clause at FAR 52.203-14, Display of
Hotline Poster(s).
(b) The Contracting Officer shall insert the clause at 952.203-1,
Identification of Contractor Employees, in all solicitations and
contracts for services over the micro-purchase threshold.
PART 904--ADMINISTRATIVE MATTERS
0
15. The authority citation for part 904 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
0
16. Amend section 904.401 by:
0
a. Revising the definition of ``Access authorization'';
0
b. Removing the definition of ``Classified information'' and adding the
definition ``Classified information or Classified National Security
Information'' in its place; and
0
c. Adding in alphabetical order a definition for
``Counterintelligence''.
The revision and additions read as follows:
Sec. 904.401 Definitions.
Access authorization means an administrative determination that an
individual is eligible for access to classified information or is
eligible for access to, or control over, special nuclear material under
the Atomic Energy Act of 1954; Executive Order 12968, Access to
Classified Information, dated August 2, 1995; or 10 CFR part 710.
* * * * *
Classified information or Classified National Security Information
mean information officially determined to be Restricted Data, Formerly
Restricted Data, or Transclassified Foreign Nuclear Information under
the Atomic Energy Act of 1954, as amended, or information determined to
require protection under Executive Order 13526, Classified National
Security Information, dated December 29, 2009.
Counterintelligence means information gathered and activities
conducted to protect against espionage, other intelligence activities,
sabotage, or assassinations conducted for or on behalf of foreign
powers, organizations or persons, or international terrorist
activities, but not including personnel,
[[Page 73668]]
physical, document or communication security programs.
* * * * *
0
17. Section 904.402 is revised to read as follows:
Sec. 904.402 General.
(b) The basis of Department of Energy's (DOE) industrial security
requirements is the Atomic Energy Act of 1954, as amended, the DOE
Organization Act of 1977, as amended, and Executive Orders 13526 and
12829.
(3) DOE has established a counterintelligence program. All DOE
elements and contractors managing DOE-owned or leased facilities that
require access authorizations, should undertake the necessary
precautions to ensure that DOE and covered contractor personnel,
programs and resources are properly protected from foreign intelligence
threats and activities.
(4) DOE security regulations concerning restricted data are
codified at 10 CFR part 1045.
(5) Section 234B of the Atomic Energy Act (42 U.S.C. 2282b)
requires that DOE contracts include a clause providing for appropriate
reductions in fees or amounts paid to the contractor under the contract
in the event of violations of any rule, regulation, or order relating
to the safeguarding or security of Restricted Data or other classified
information. The clause is required for all DOE prime contracts that
involve any possibility of contractor access to Restricted Data or
other classified information. The clause specifies various degrees of
violations and the amount of reduction attributable to each degree. The
clause at 952.242-71, Conditional Payment of Fee, Profit, or Other
Incentives, shall be used to comply with 42 U.S.C. 2282b (unless the
clause at 970.5215-3, Conditional Payment of Fee, Profit, and Other
Incentives--Facility Management Contracts is used). See 942.71(d) for
the clause's prescription.
(e) Part 927 contains policies and procedures for safeguarding
classified information in patent applications and patents.
0
18. Amend section 904.404 by revising paragraphs (d)(1), (3), (6), and
(7) to read as follows:
Sec. 904.404 Solicitation provision and contract clause.
(d) * * *
(1) Security, 952.204-2. This clause is required in contracts and
subcontracts, the performance of which involves or is likely to involve
classified information, access to special nuclear materials or the
provision of protective services. This includes contracts awarded under
simplified acquisition procedures, as well as National Security Program
contracts, under which access to proscribed information is required.
Although DOE utilizes the National Industrial Security Program, DOE's
security authority is derived from the Atomic Energy Act which contains
specific language not found in other agencies' authorities. For this
reason, DOE contracts must contain the clause at 952.204-2 rather than
the clause at FAR 52.204-2 and Contracting Officers must incorporate
DOE Form 470.1 or equivalent.
* * * * *
(3) Sensitive foreign nation controls, 952.204-71. This clause is
required in unclassified research contracts which may involve sharing
unclassified information about nuclear technology with certain
sensitive foreign nations. The contractor shall be provided at the time
of award the listing of nations referenced in DOE Order 142.3,
Unclassified Foreign Visits and Assignments Program, or its successor.
(The attachment referred to in the clause shall set forth the
applicable requirements of the DOE regulations on dissemination of
unclassified published and unpublished technical information to foreign
nations.)
* * * * *
(6) Computer Security, 952.204-77. This clause is required in
contracts in which the contractor may have access to computers owned,
leased or operated on behalf of the Department of Energy.
(7) Counterintelligence. The Contracting Officer shall include the
clause at 952.204-74, Counterintelligence, in all contracts that
include the clauses at 952.204-2, Security Requirements, and 952.204-
70, Classification/Declassification.
0
19. Amend section 904.7004 by revising the first sentence of paragraph
(a) to read as follows:
Sec. 904.7004 Findings, determination, and contract award or
termination.
(a) Based on the information disclosed by the offeror(s) or
contractor, and after consulting with the DOE Office of Environment,
Health, Safety and Security, the contracting officer must determine
that award of a contract to an offeror(s) or continued performance of a
contract by a contractor will not pose an undue risk to the common
defense and security. * * *
* * * * *
0
20. Amend section 904.7102 by revising paragraph (e) to read as
follows:
Sec. 904.7102 Waiver by the Secretary.
* * * * *
(e) Any request for a waiver under this subpart shall be
accompanied by the information required by the clause at 952.204-73,
Facility Clearance.
0
21. Subpart 904.74 is added to read as follows:
Subpart 904.74--Department of Energy Directives
Sec.
904.7400 General.
904.7401 Contract clause.
Sec. 904.7400 General.
The contractor is required to comply with the requirements of
applicable Federal, State, and local laws and regulations, unless
relief has been granted by the appropriate authority. Additionally, the
Department of Energy (DOE) Directives Program is a system of
instructions, including orders, notices, manuals, guides, and
standards, for DOE elements. In certain circumstances, DOE will apply
requirements contained in these directives to a contract. In these
circumstances, program and requirements personnel will be responsible
for identifying the requirements that are applicable to the contract
and for providing a list of applicable requirements to the Contracting
Officer for inclusion in the contract.
Sec. 904.7401 Contract clause.
The Contracting Officer shall insert the clause at 952.204-78, DOE
Directives, in non-management and operating contracts where the work
will be performed on a DOE site and the contract will be subject to the
requirements of DOE Directives. This includes information technology or
cybersecurity work, as well as other work program officials identify as
requiring the clause.
PART 908--REQUIRED SOURCES OF SUPPLIES AND SERVICES
0
22. The authority citation for part 908 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
Sec. 908.7103 and 908.7115 through 908.7117 [Removed and Reserved]
0
23. Sections 908.7103 and 908.7115 through 908.7117 are removed and
reserved.
PART 909--CONTRACTOR QUALIFICATIONS
0
24. The authority citation for part 909 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
[[Page 73669]]
0
25. Amend section 909.403 by revising the definition of ``Debarring and
suspending official'' to read as follows:
Sec. 909.403 Definitions.
* * * * *
Debarring and suspending official, for the DOE, the designees are:
(1) Debarring Official means the Debarring Official for DOE
contracts is the Director, Office of Acquisition Management, DOE, or
designee. The debarring Official for NNSA contracts is the Deputy
Associate Administrator for the Office of Partnership and Acquisition
Services, or designee.
(2) Suspending Official means the Suspending Official for DOE
contracts is the Director, Office of Acquisition Management, DOE, or
designee. The suspending Official for NNSA contracts is the Deputy
Associate Administrator for the Office of Partnership and Acquisition
Services, or designee.
0
26. Amend section 909.405 by revising paragraphs (f), (g), and (h) to
read as follows:
Sec. 909.405 Effect of listing.
* * * * *
(f) DOE or NNSA may disapprove or not consent to the selection (by
a contractor) of an individual to serve as a principal investigator, as
a project manager, in a position of responsibility for the
administration of Federal funds, or in another key personnel position,
if the individual is listed in the System for Award Management (SAM)
exclusions.
(g) DOE or NNSA shall not conduct business with an agent or
representative of a contractor if the agent's or representative's name
has an active exclusion in SAM.
(h) DOE or NNSA shall review SAM before conducting a pre-award
survey or soliciting proposals, awarding contracts, renewing or
otherwise extending the duration of existing contracts, or approving or
consenting to the award, extension, or renewal of subcontracts.
Sec. 909.407-3 [Amended]
0
27. Amend section 909.407-3 in paragraph (e)(1)(vii) by removing the
text ``EPLS'' and adding in its place the text ``SAM exclusion''.
0
28. Amend section 909.507-2 by revising paragraphs (a)(1) and (3) and
(b) to read as follows:
Sec. 909.507-2 Contract clause.
(a)(1) The contracting officer shall insert the clause at 952.209-
72, Organizational Conflicts of Interest, in each non-M&O solicitation
and contract for advisory and assistance services expected to exceed
the simplified acquisition threshold.
* * * * *
(3) The contracting officer shall include Alternate I with the
clause at 952.209-72 in instances in which a meaningful amount of
subcontracting for advisory and assistance services is expected or the
contract provides for the operation of a DOE site or facility or
environmental remediation of specific DOE sites.
(b) For M&O contracts, see 970.0906.
PART 912--ACQUISITION OF COMMERCIAL ITEMS
0
29. The authority citation for part 912 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
0
30. Section 912.301 is added to read as follows:
Sec. 912.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
(f) The Contracting Officer shall supplement the clauses prescribed
at FAR 12.301--
(1) In all cases, with 952.232-7, Electronic Submission of
Invoices/Vouchers; and
(2) In appropriate cases, following prescriptions elsewhere in this
chapter, with the following:
(i) 952.204-74, Counterintelligence.
(ii) 952.204-77, Computer Security.
(iii) 952.211-71, Priorities and allocations for energy programs
(clause).
PART 915--CONTRACTING BY NEGOTIATION
0
31. The authority citation for part 915 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
0
32. Section 915.404-4-70 is revised to read as follows:
Sec. 915.404-4-70 DOE structured profit and fee system.
(a) This section implements FAR 15.404-4(b) and (d).
(b) DOE's structured profit and fee system for non-management and
operating contracts comprises two approaches: a weighted guidelines
system for all but construction contracts, construction management
contracts, and special equipment purchases; and a fee schedules-based
system for construction contracts, construction management contracts,
and special equipment purchases. The former is covered at 915.404-70-2
through 915.404-70-8; the latter is covered at 915.404-71 through
915.404-4-71-6. Both approaches use the procedures at 915.404-4-72 for
cost-plus-award-fee contracts.
0
33. Amend section 915.404-4-70-2 in the table in paragraph (d) by
revising entries II, IV.b., V, and VI to read as follows:
Sec. 915.404-4-70-2 Weighted guidelines system.
* * * * *
(d) * * *
------------------------------------------------------------------------
Profit factors Weight ranges (percent)
------------------------------------------------------------------------
* * * * * * *
II. Contract Risk (type of contract-weights 0 to 8.
applied to total cost of items items I.a.
thru I.e.).
* * * * * * *
IV. * * *
b. Developed items employed (Weights 0 to 20.
applied to total of profit $ for items
I.a. thru I.e.).
V. Special Program Participation (Weights -5 to +5.
applied to total of Profit $ for items I.a.
thru I.e.).
VI. Other Considerations (Weights applied to -5 to +5.
total of Profits $ for items I.a. thru
I.e.).
* * * * * * *
------------------------------------------------------------------------
[[Page 73670]]
Sec. 915.404-4-72 [Amended]
0
34. Amend section 915.404-4-72 in the second sentence of paragraph (a)
by removing ``970.15404-4-8'' and adding in its place ``970.1504-1-1
through 970.1504-3''.
0
35. Section 915.408-70 is revised to read as follows:
Sec. 915.408-70 Key personnel clause.
The Contracting Officer shall insert the clause at 952.215-70, Key
Personnel, in solicitations and contracts under which successful
performance is largely dependent on the expertise of specific key
personnel.
PART 916--TYPES OF CONTRACTS
0
36. The authority citation for part 916 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
0
37. Section 916.307 is revised to read as follows:
Sec. 916.307 Contract clauses.
When using the clause at FAR 52.216-7, Allowable Cost and Payment,
supplement the clause with 952.216-7, Allowable Cost and Payment.
Sec. 916.504 [Amended]
0
38. Amend section 916.504 by redesignating paragraph (c) as paragraph
(a)(1).
Sec. 916.505 [Amended]
0
39. Amend section 916.505 by:
0
a. Redesignating paragraph (b)(6) as paragraph (b)(8); and
0
b. In newly redesignated paragraph (b)(8)(i):
0
i. Removing the words ``Office of Procurement and Assistance
Management'' and adding in their place ``Office of Acquisition
Management''; and
0
ii. Removing ``48 CFR 16.505(b)(6)'' and adding in its place ``FAR
16.505(b)(8)''.
PART 917--SPECIAL CONTRACTING METHODS
0
40. The authority citation for part 917 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
0
41. Amend section 917.600 by revising paragraph (b) to read as follows:
Sec. 917.600 Scope of subpart.
* * * * *
(b) The requirements of this subpart apply to any Department of
Energy management and operating contract.
Sec. 917.601 [Removed]
0
42. Section 917.601 is removed.
0
43. Amend section 917.602 by revising paragraphs (b) and (c) to read as
follows:
Sec. 917.602 Policy.
* * * * *
(b) It is the policy of the Department of Energy to provide for
full and open competition in the award of management and operating
contracts.
(c) A management and operating contract may be extended at the
completion of its term without providing for full and open competition
only when such extension is justified under one of the statutory
authorities identified in FAR 6.302 and only when authorized by the
Secretary.
Sec. 917.7402 Sec. [Amended]
0
44. Amend section 917.7402 in paragraphs (b) and (c)(4) by removing
``DOE Order 430.1B'' and adding in its place ``DOE Order 430.1C''.
PART 919--SMALL BUSINESS PROGRAMS
0
45. The authority citation for part 919 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
Sec. 919.7001 and 919.7002 [Removed]
0
46. Sections 919.7001 and 919.7002 are removed.
0
47. Section 919.7003 is revised to read as follows:
Sec. 919.7003 General policy.
(a) The DOE Mentor-Protege program seeks to foster long-term
business relationships between DOE prime contractors and small business
concerns, historically Black colleges and universities (HBCUs), and
other minority institutions of higher learning, and to increase the
overall number of such entities that receive DOE contract and
subcontract awards.
(b) DOE contractors may enter into Mentor-Protege Agreements, aimed
at providing developmental assistance to enhance capabilities, with the
entities identified in paragraph (a) of this section.
(c) Costs incurred by a mentor to provide developmental assistance
are allowable only to the extent incurred in performance of a contract
identified in the Mentor-Protege Agreement and are otherwise allowable
in accordance with the cost principles applicable to that contract.
Developmental assistance must not duplicate any effort normally
expended in the course of awarding and administering the Mentor firm's
subcontract.
(d) The DOE Headquarters Office of Small and Disadvantaged Business
Utilization (OSDBU) is the Program Manager for the DOE Mentor-Protege
Program.
Sec. 919.7004 and 919.7005 [Removed]
0
48. Sections 919.7004 and 919.7005 are removed.
0
49. Section 919.7006 is revised to read as follows:
Sec. 919.7006 Incentives for DOE contractor participation.
(a) Under cost-plus-award fee contracts, approved Mentor firms may
earn award fees associated with their performance as a Mentor. The
award fee plan may include provision for the evaluation of the
contractor's utilization of small business concerns, HBCUs, and other
minority institutions of higher learning. DOE may evaluate the Mentor's
performance in the DOE Mentor-Protege Program under any Mentor-Protege
Agreement(s) as a separate element of the award fee plan.
(b) Mentor firms shall receive credit towards applicable
subcontracting goals for subcontracts awarded pursuant to their Mentor-
Protege Agreements, as negotiated under FAR subpart 19.7.
(c) Mentor firms may be reimbursed for allowable developmental
assistance costs for protege firms under the contract costs.
Sec. 919.7007 through 919.7013 [Removed]
0
50. Sections 919.7007 through 919.7013 are removed.
0
51. Section 919.7014 is revised to read as follows:
Sec. 919.7014 Solicitation provision.
The cognizant contracting officer shall insert the provision at
952.219-70, DOE Mentor-Protege Program, in all solicitations that
include the clause at FAR 52.219-9, Small Business Subcontracting Plan.
PART 922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
0
52. The authority citation for part 922 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
0
53. Section 922.101-70 is added to read as follows:
Sec. 922.101-70 General (applicability of Management and Operating
contractor basic labor policies to certain non-Management and Operating
contracts).
(a) The policies and associated contract clauses in 970.2201 apply
to the award and administration of non-Management and Operating
contracts if:
(1) The contract work had been previously performed under a DOE
[[Page 73671]]
Management and Operating contract; and/or
(2) The Contrac
[…truncated; see source link]Indexed from Federal Register on October 26, 2023.
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