PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
Sec.
Subpart 970.01--Management and Operating Contract Regulatory System
970.0100 Scope of part.
970.0103 Publication and codification.
Subpart 970.03--Improper Business Practices and Personal Conflicts of Interest
970.0309 Whistleblower protection of contractor employees.
970.0309-1 Applicability.
970.0370 Management controls and improvements.
970.0370-1 Policy.
970.0370-2 Contract clause.
970.0371 Conduct of employees of DOE management and operating contractors.
970.0371-1 Scope of section.
970.0371-2 Applicability.
970.0371-3 Definition.
970.0371-4 Gratuities.
970.0371-5 Use of privileged information.
970.0371-6 Incompatibility between regular duties and private interests.
970.0371-7 Outside employment of contractor employees.
970.0371-8 Employee disclosure concerning other employment services.
970.0371-9 Contract clause.
Subpart 970.04--Administrative Matters
970.0404 Safeguarding classified information.
970.0404-1 Definitions.
970.0404-2 General.
970.0404-3 Responsibilities of contracting officers.
970.0404-4 Solicitation provision and contract clauses.
970.0407 Contractor records retention.
970.0407-1 Applicability.
970.0407-1-1 Alternate retention schedules.
970.0407-1-2 Access to and ownership of records.
970.0407-1-3 Contract clause.
970.0470 Department of Energy Directives.
970.0470-1 General.
970.0470-2 Contract clause.
Subpart 970.08--Required Sources of Supplies and Services
970.0801 Excess personal property.
970.0801-1 Policy.
970.0808 Acquisition of printing.
970.0808-1 Scope of section.
970.0808-2 Policy.
970.0808-3 Contract clause.
Subpart 970.09--Contractor Qualifications
970.0905 Organizational conflicts of interest.
970.0970 Performance guarantees.
970.0970-1 Determination of responsibility.
970.0970-2 Solicitation provision.
Subpart 970.11--Describing Agency Needs
970.1100 Policy.
970.1100-1 Performance-based contracting.
970.1100-2 Additional considerations.
970.1103-4 Contract clause.
Subpart 970.15--Contracting by Negotiation
970.1504 Contract pricing.
970.1504-1 Price analysis
970.1504-1-1 Fees for management and operating contracts.
970.1504-1-2 Fee policy.
970.1504-1-3 Special considerations: Laboratory management and operation.
970.1504-1-4 Types of contracts and fee arrangements.
970.1504-1-5 General considerations and techniques for determining fixed fees.
970.1504-1-6 Calculating fixed fee.
970.1504-1-7 Fee base.
970.1504-1-8 Special equipment purchases.
970.1504-1-9 Special considerations: Cost-plus-award-fee.
970.1504-1-10 Special considerations: Fee limitations.
970.1504-1-11 Documentation.
970.1504-2 Price negotiation.
970.1504-3 Documentation.
970.1504-3-1 Cost or pricing data.
970.1504-4 Special cost or pricing areas.
970.1504-4-1 [Removed and Reserved.]
970.1504-4-2 [Removed and Reserved.]
970.1504-4-3 [Removed and Reserved.]
970.1504-5 Solicitation provision contract clauses.
Subpart 970.17--Special Contracting Methods
970.1706 Management and operating contracts.
970.1706-1 Award, renewal, and extension.
970.1706-2 Contract clause.
970.1707 Work for others.
970.1707-1 Scope.
970.1707-2 Purpose.
970.1707-3 Terms governing work for others.
970.1707-4 Contract clause.
Subpart 970.19--Small, Small Disadvantaged and Women-Owned Small Business Concerns
970.1907 Subcontracting with Small Business, Small Disadvantaged Business and Woman-owned Small Business Concerns.
970.1907-1 Subcontracting plan requirements.
Subpart 970.22--Application of Labor Policies
970.2200 Scope of subpart.
970.2201 Basic labor policies.
970.2201-1 Labor relations.
970.2201-1-1 General.
970.2201-1-2 Policies.
970.2201-1-3 Contract clause.
970.2201-2 Overtime management.
970.2201-2-1 Policy.
970.2201-2-2 Contract clause.
970.2204 Labor standards for contracts involving construction.
970.2204-1 Statutory and regulatory requirements.
970.2204-1-1 Administrative controls and criteria for application of the Davis-Bacon Act in operational or maintenance activities.
970.2208 Equal Employment Opportunity.
970.2210 Service contract act.
970.2270 Unemployment compensation.
Subpart 970.23--Environment, Conservation, Occupational Safety, and Drug Free Work Place
970.2303 Hazardous materials identification and material safety.
970.2303-1 General.
970.2303-2 Contract clauses.
970.2304 Use of recovered/recycled materials.
970.2304-1 General.
970.2304-2 Contract clause.
970.2305 Workplace substance abuse programs-Management and operating contracts.
970.2305-1 General.
970.2305-2 Applicability.
970.2305-3 Definitions.
970.2305-4 Solicitation provision and contract clause.
970.2306 Suspension of payments, termination of contract, and debarment and suspension actions.
970.2307 Contracting for Environmentally Preferable and
Energy-efficient Products and Services.
970.2307-1 Motor vehicle fleet operations.
970.2307-2 Contract clause.
Subpart 970.26--Other Socioeconomic Programs
970.2670 Implementation of Section 3021 of the Energy Policy Act of 1992.
970.2670-1 Requirements.
970.2671 Diversity.
970.2671-1 Policy.
970.2671-2 Contract clause.
970.2672 Implementation of Section 3161 of the National Defense Authorization Act for Fiscal Year 1993.
970.2672-1 Policy.
970.2672-2 Requirements.
970.2672-3 Contract clause.
970.2673 Regional partnerships.
970.2673-1 Policy.
970.2673-2 Contract clause.
Subpart 970.27--Patents, Data, and Copyrights
970.2701 General.
970.2701-1 Applicability.
970.2702 Patent related clauses.
970.2702-1 Authorization and consent.
970.2702-2 Notice and assistance regarding patent and copyright infringement.
970.2702-3 Patent indemnity.
970.2702-4 Royalties.
970.2702-5 Rights to proposal data.
970.2702-6 Notice of right to request patent waiver.
970.2703 Patent rights.
970.2703-1 Purposes of patent rights clauses.
970.2703-2 Patent rights clause provisions for management and operating contractors.
970.2704 Rights in data.
970.2704-1 General.
970.2704-2 Procedures.
970.2704-3 Contract clauses.
970.2770 Technology transfer.
970.2770-1 General.
970.2770-2 Policy.
970.2770-3 Technology transfer and patent rights.
970.2770-4 Contract clause.
Subpart 970.28--Bonds and Insurance
970.2803 Insurance.
970.2803-1 Workers' compensation insurance.
970.2803-2 Contract clause.
Subpart 970.29--Taxes
970.2902 Federal excise taxes.
970.2902-1 Exemptions from federal excise taxes.
970.2903 State and local taxes.
970.2903-1 Applicability of state and local taxes to the Government.
970.2904 Contract clauses.
970.2904-1 Management and operating contracts.
Subpart 970.30--Cost Accounting Standards
970.3002 CAS Program Requirements.
970.3002-1 Applicability.
Subpart 970.31--Contract Cost Principles and Procedures
970.3101-00-70 Scope of subpart.
970.3101-9 Advance agreements.
970.3101-10 Cost certification.
970.3102-3-70 Home office expenses
970.3102-05 Application of cost principles.
970.3102-05-4 Bonding costs.
970.3102-05-6 Compensation for personal services.
970.3102-05-18 Independent research and development and bid and proposal costs.
970.3102-05-19 Insurance and indemnification.
970.3102-05-22 Lobbying and political activity costs.
970.3102-05-28 Other business expenses.
970.3102-05-30 Patent costs and technology transfer costs.
970/3102-05-33 Professional and consultant service costs (Departmental coverage - paragraph (g))
970.3102-05-46 Travel costs.
970.3102-05-47 Costs related to legal and other proceedings.
970.3102-05-70 Preexisting conditions.
970.3170 Contract clause.
Subpart 970.32--Contract Financing
970.3200 Policy.
970.3200-1 Reduction or suspension of advance, partial, or progress payments.
970.3200-1-1 Contract clause.
970.3204 Advance payments.
970.3204-1 Applicability.
970.3270 Standard financial management clauses.
Subpart 970.34--Major System Acquisition
970.3400 General requirements.
970.3400-1 Mission-oriented solicitation.
Subpart 970.35--Research and Development Contracting
970.3500 Scope of subpart.
970.3501 Federally funded research and development centers.
970.3501-1 Sponsoring agreements.
970.3501-2 Using an FFRDC.
970.3501-3 Reviewing FFRDC's.
970.3501-4 Contract Clause.
Subpart 970.36--Construction and Architect-Engineer Contracts.
970.3605 Contract clauses.
970.3605-1 Other contracts.
970.3605-2 Special construction clause for operating contracts.
Subpart 970.37--Facilities Management Contracting
970.3770 Facilities management.
970.3770-1 Policy.
970.3770-2 Contract clause.
Subpart 970.41--Acquisition of Utility Services
970.4102 Acquiring utility services.
970.4102-1 Policy.
Subpart 970.42--Contract Administration
970.4207-03-02 Certificate of costs.
970.4207-03-70 Contract clause.
970.4207-05-01 Contracting officer determination procedure.
Subpart 970.43--Contract Modifications
970.4302 Changes.
970.4302-1 Contract Clause.
Subpart 970.44--Management and Operating Contractor Purchasing
970.4400 Scope.
970.4401 Responsibilities.
970.4401-1 General.
970.4401-2 Review and approval.
970.4401-3 Advance notification.
970.4402 Contractor purchasing system.
970.4402-1 Policy.
970.4402-2 General requirements.
970.4402-3 Purchasing from contractor-affiliated sources.
970.4402-4 Nuclear material transfers.
970.4403 Contract clause.
Subpart 970.45--Government Property
970.4501 General.
970.4501-1 Contract clause.
Subpart 970.49--Termination of Contracts
970.4905 Contract termination clause.
970.4905-1 Termination for convenience of the government and default.
Subpart 970.50--Extraordinary Contractual Actions
970.5004 Residual powers.
970.5004-1 Contract clause.
970.5070 Indemnification.
970.5070-1 Scope and applicability.
970.5070-2 General.
970.5070-3 Contract clauses.
Subpart 970.52--Solicitation Provisions and Contract Clauses for Management and Operating Contracts
970.5200 Scope of subpart.
970.5201 Text of provisions and clauses.
970.5203-1 Management controls.
970.5203-2 Performance improvement and collaboration.
970.5203-3 Contractor's organization.
970.5204-1 Counterintelligence.
970.5204-2 Laws, regulations, and DOE directives.
970.5204-3 Access to and ownership of records.
970.5208-1 Printing.
970.5209-1 Requirement for guarantee of performance.
970.5215-1 Total Available Fee: Base fee amount and performance fee amount.
970.5215-2 [Removed and Reserved].
970.5215-3 Conditional payment of fee, profit, and other incentives - facility management contracts.
970.5215-4 Cost reduction.
970.5215-5 Limitation on fee.
970.5222-1 Collective bargaining agreements-management and operating contracts.
970.5222-2 Overtime management.
970.5223-1 Integration of environment, safety, and health into work planning and execution.
970.5223-2 Affirmative Procurement Program.
970.5223-3 Agreement regarding workplace substance abuse programs at DOE facilities.
970.5223-4 Workplace Substance Abuse Programs at DOE sites.
970.5223-5 Motor vehicle fleet fuel efficiency.
970.5226-1 Diversity plan.
970.5226-2 Workforce restructuring under Section 3161 of the National Defense Authorization Act for Fiscal Year 1993.
970.5226-3 Community commitment.
970.5227-1 Rights in data-facilities.
970.5227-2 Rights in data-technology transfer.
970.5227-3 Technology transfer mission.
970.5227-4 Authorization and consent.
970.5227-5 Notice and assistance regarding patent and copyright infringement.
970.5227-6 Patent indemnity-subcontracts.
970.5227-7 Royalty information.
970.5227-8 Refund of royalties.
970.5227-9 Notice of right to request patent waiver.
970.5227-10 Patent rights-management and operating contracts, nonprofit organization or small business firm contractor.
970.5227-11 Patent rights-management and operating contracts, for-profit contractor, non-technology transfer.
970.5227-12 Patent rights-management and operating contracts, for-profit contractor, advance class waiver.
970.5228-1 Insurance-Litigation and claims.
970.5229-1 State and local taxes.
970.5231-4 Preexisting conditions.
970.5232-1 Reduction or suspension of advance, partial, or progress payments upon finding of substantial evidence of fraud.
970.5232-2 Payments and advances.
970.5232-3 Accounts, records, and inspection.
970.5232-4 Obligation of funds.
970.5232-5 Liability with respect to cost accounting standards.
970.5232-6 Work for others funding authorization.
970.5232-7 Financial management system.
970.5232-8 Integrated accounting.
970.5235-1 Federally funded research and development center sponsoring agreement.
970.5236-1 Government facility subcontract approval.
970.5237-2 Facilities management.
970.5242-1 Penalties for unallowable costs.
970.5243-1 Changes.
970.5244-1 Contractor purchasing system.
970.5245-1 Property.
Authority: 42 U.S. C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101, et. seq.; 41 U.S.C. 418; 50 U.S. C. 2401, et seq..
Source: 65 FR 81008, Dec. 22, 2000, unless otherwise noted.
Subpart 970.01--Management and Operating Contract Regulatory System
970.0100 -- Scope of part.
This part provides Departmental policies, procedures, provisions, and clauses that implement and supplement the Federal Acquisition Regulation (FAR) and other parts of the Department of Energy Acquisition Regulation (DEAR) for the award and administration of the Department's management and operating contracts, as defined at 48 CFR subpart 17.6. The FAR and other parts of the DEAR apply to management and operating contracts. See 48 CFR 970.5200 for guidance regarding which provisions and clauses (from FAR, DEAR Part 970, or other parts of the DEAR) to include in management and operating contracts.
970.0103 -- Publication and codification.
(a) Organization of Part 970. (1) To the extent possible, the titles and text of the subparts, sections, and subsections of this part are numbered to correspond with related material that is contained in the FAR.
(2) The number to the left of the decimal point represents the DEAR part number (i.e., 970). The numbers to the right of the decimal point and to the left of the dash represent, in order, the DEAR subpart (first two digits), and the DEAR section number (second two digits). The numbers to the right of the dash represent the DEAR subsection. A second dash may follow the DEAR subsection number. As applicable, numbers to the right of the second dash represent subordinate subsections.
(3) To the extent practicable, the subpart number corresponds with the FAR part which contains related coverage, and the section number corresponds with the FAR subpart which contains related coverage (e.g., the coverage contained in DEAR 970.0309 corresponds with material contained in FAR 3.9).
(4) Where the FAR does not contain related coverage on a particular subject, the DEAR section number will be numbered using numbers of 70 and up (e.g., 970.0370).
(b) Special Note Regarding Clause Numbering. The section number for clauses prescribed in part 970 are numbered to correspond with the subpart in which the clause is prescribed (e.g., 970.5203-1 is prescribed for use at subpart 970.03).
Subpart 970.03--Improper Business Practices and Personal Conflicts of Interest
970.0309 -- Whistleblower Protection of Contractor Employees.
970.0309-1 -- Applicability.
The contracting officer shall refer to 48 CFR subpart 903.9 regarding the applicability of the DOE Employee Protection Program to management and operating contracts.
970.0370 -- Management Controls and Improvements.
970.0370-1 -- Policy.
(a) Management and operating contractors shall develop and maintain systems of management and quality control to discourage waste, fraud and abuse; and to ensure that components, products, and services that are provided to DOE satisfy the contractor's obligations under the contract.
(b) As a part of the required overall management structure, the contractor must maintain management control systems which, in compliance with the requirements of the clause at 48 CFR 970.5203-1:
(1) Are documented and satisfactory to DOE;
(2) Ensure that all levels of management are accountable for effective management systems and internal controls within their areas of assigned responsibility;
(3) Cover both programmatic and administrative functions;
(4) Provide reasonable assurance that Government resources are safeguarded against theft, fraud, waste, and unauthorized use;
(5) Promote efficient and effective operations;
(6) Ensure that all obligations and costs incurred are in compliance with the intended purposes and the terms and conditions of the contract;
(7) Properly record, manage, and report all revenues, expenditures, transactions and assets;
(8) Maintain financial, statistical and other reports necessary to maintain accurate, reliable, and timely accountability and management controls;
(9) Are periodically reviewed to ensure that the systems provide reasonable assurance that the objectives of the system are being accomplished and that these controls are working effectively;
(10) Are in accordance with the Comptroller General's standards for internal controls, as set forth in the General Accounting Office Policy and Procedures Manual For Guidance To Federal Agencies, (Oct 1984), as amended.
(c) Management and operating contractors shall also develop and maintain a baseline program of quality assurance that will implement documented performance and quality standards, and management controls and assessment techniques to ensure components, services, and products meet DOE's, design criteria and other governing and applicable specifications.
(d) DOE expects all its contractors to seek to identify improvements in any aspect of performance. Management and operating contracts are very large and complex; therefore, the opportunities to identify changes in performance that will increase the effectiveness or efficiency of contract performance are more prevalent than under other contracts. The clause at 48 CFR 970.5203-2 requires DOE management and operating contractors to affirmatively seek to identify, evaluate, and institute, where appropriate, processes that will improve the effectiveness or efficiency of any aspect of contract performance. It further requires the contractor to communicate any such improvements to DOE, other management and operating contractors, and DOE major facilities contractors. The contractor is required to participate in efforts by those contractors to address common problems or the institution of improvements. It allows the contractor to enlist the aid of the DOE contracting officer where necessary to institute or communicate the improvements. The obligations under the clause in no way affect the contractor's obligations under other provisions of the contract to notify or acquire the approval of the contracting officer.
970.0370-2 -- Contract clause.
(a) The contracting officer shall insert the clause at 970.5203-1, Management Controls, in all management and operating contracts.
(b) The contracting officer shall insert the clause at 970.5203-2, Performance Improvement and Collaboration, in all management and operating contracts.
970.0371 -- Conduct of employees of DOE management and operating contractors.
970.0371-1 -- Scope of section.
This section establishes the policies for maintaining satisfactory standards of conduct on the part of individuals employed by DOE management and operating contractors.
970.0371-2 -- Applicability.
The policies in this section are applicable to all DOE management and operating contractors.
970.0371-3 -- Definition.
Employees, as used in this section, are defined to mean individuals employed by the contractor, both full and part-time, who are assigned to work under a DOE management and operating contract.
970.0371-4 -- Gratuities.
Employees of a management and operating contractor shall not, under circumstances which might reasonably be interpreted as an attempt to influence the recipients in the conduct of their duties, accept any gratuity or special favor from individuals or organizations with whom the contractor is doing business, or proposing to do business, in accomplishing the work under the contract. Reference is made to the requirements prescribed in 48 CFR 3.502.
970.0371-5 -- Use of privileged information.
Management and operating contractor employees shall not use privileged information for personal gain, or make other improper use of privileged information which is acquired in connection with their employment on contract work. For the purposes of this subsection, the term "privileged information" includes but is not limited to, unpublished information relating to technological and scientific developments; medical, personnel, or security records of individuals; anticipated materials' requirements or pricing action; possible new sites for DOE program operations; internal DOE decisions; policy development; and knowledge of selections of contractors or subcontractors in advance of official announcement.
970.0371-6 -- Incompatibility between regular duties and private interests.
(a) Employees of a management and operating contractor shall not be permitted to make or influence any decisions on behalf of the contractor which directly or indirectly affect the interest of the Government, if the employee's personal concern in the matter may be incompatible with the interest of the Government. For example: An employee of a contractor will not negotiate, or influence the award of, a subcontract with a company in which the individual has an employment relationship or significant financial interest; and an employee of a contractor will not be assigned the preparation of an evaluation for DOE or for any DOE contractor of some technical aspect of the work of another organization with which the individual has an employment relationship, or significant financial interest, or which is a competitor of an organization (other than the contractor who is the individual's regular employer) in which the individual has an employment relationship or significant financial interest.
(b) The contractor shall be responsible for informing employees that they are expected to disclose any incompatibilities between duties performed for the contractor and their private interests and to refer undecided questions to the contractor.
970.0371-7 -- Outside employment of contractor employees.
Employees of a management and operating contractor are entitled to the same rights and privileges with respect to outside employment as other citizens. Therefore, there is no general prohibition against contractor employees having outside employment. However, no employee of a contractor performing work on a full or part-time basis under a DOE management and operating contract may engage in employment outside official hours of duty or while on leave if such employment will:
(a) In any manner interfere with the proper and effective performance of the duties of the position;
(b) Appear to create a conflict-of-interest situation, or
(c) Appear to subject DOE or the contractor to public criticism or embarrassment.
970.0371-8 -- Employee disclosure concerning other employment services.
(a) Management and operating contractors are responsible for requiring its employees to file with the contractor, a written disclosure statement concerning outside employment services which involve the use of information in the area of the employee's employment with the contractor. The disclosure shall contain such information concerning the outside employment as the contractor may prescribe. As a minimum, the employee's disclosure shall:
(1) Acknowledge that the employee has read and is familiar with:
(i) The requirements and restrictions prescribed in this section,
(ii) DOE publication entitled, "Reporting Results of Scientific and Technical Work Funded by DOE", and
(iii) The requirements of the contractor's contract with DOE relating to patents.
(2) Include information concerning any rate of remuneration significantly in excess of the employee's regular rate of remuneration;
(3) Identify any actual or potential conflicts with DOE's policies regarding conduct of employees of DOE's contractors set forth in this section;
(4) Address any potential impacts that such employment may have on the contractor's responsibility to report fully and promptly to DOE all significant research and development information; and
(5) Identify any potential conflicts such employment may have with the patent provisions of the contractor's contract with DOE.
(b) The contractor shall provide a copy of all disclosures to the contracting officer.
970.0371-9 -- Contract clause.
The contracting officer shall insert the clause at 970.5203-3, Contractor's Organization, in all management and operating contracts. The approval authority of the Secretary of Energy required in paragraph (c) may not be delegated. In paragraph (a) the words "and managerial personnel (see 48 CFR 970.5245-1(j))" may be inserted after "(see 48 CFR 952.215-70)".
Subpart 970.04--Administrative Matters
970.0404 -- Safeguarding classified information.
970.0404-1 -- Definitions.
Access Authorization means an administrative determination that an individual is eligible for access to classified information or is eligible for access to, or control over, special nuclear material.
Classified Information means any information or material that is owned by or produced for, or is under the control of the United States Government, and determined pursuant to provisions of Executive Order 12356 of April 2, 1982 (3 CFR, 1982 Comp., p. 166), or prior orders, or as authorized under the Atomic Energy Act of 1954, as amended, to require protection against unauthorized disclosure, and is so designated.
Counterintelligence means information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations or persons, or international terrorist activities, but not including personnel, physical, document or communication security programs.
Facility Clearance means an administrative determination that a facility is eligible to access, produce, use or store classified information or special nuclear material.
Restricted Data means all data concerning design, manufacture, or utilization of atomic weapons; the production of special nuclear material; or the use of special nuclear material in the production of energy; but shall not include data declassified or removed from the Restricted Data category pursuant to section 142 of the Atomic Energy Act of 1954, as amended, (42 U.S.C. 2162).
67 FR 14873, Mar. 28, 2002
970.0404-2 -- General.
(a) Guidance regarding the National Industrial Security Program as implemented by the Department of Energy may be found at 904.4, Safeguarding Classified Information Within Industry. Additional information concerning contractor ownership when national security or atomic energy information is involved may be found at 904.70. Information regarding contractor ownership involving national security program contracts may be found at 904.71.
(b) Executive Order 12333, United States Intelligence Activities, provides for the organization and control of United States foreign intelligence and counterintelligence activities. DOE has established a counterintelligence program subject to this Executive Order which is described in DOE Order 5670.3 (as amended). All DOE elements, including management and operating contractors and other contractors managing DOE-owned facilities which require access authorizations, should undertake the necessary precautions to ensure that DOE and covered Contractor personnel, programs and resources are properly protected from foreign intelligence threats and activities.
67 FR 14873, Mar. 28, 2002
(c) For DOE management and operating contracts and other contracts designated by the Procurement Executive, or designee, the clause entitled, "Conditional Payment of Fee, Profit, and Other Incentives – Facility Management Contracts," implements the requirements of section 234B of the Atomic Energy Act (see 48 CFR 904.402(c)(1)) for the use of a contract clause that provides for an appropriate reduction in the fee or amount paid to the contractor under the contract in the event of a violation by the contractor or any contractor employee of any rule, regulation, or order relating to the safeguarding or security of Restricted Data or other classified information. The clause, in part, provides for reductions in the amount of fee, profit, or share of cost savings that is otherwise earned by the contractor for performance failures relating to the safeguarding of Restricted Data and other classified information.
[68 FR 68771]
970.0404-3 -- Responsibilities of contracting officers.
(a) Management and operating contracts which may require the processing or storage of Restricted Data or Special Nuclear Material require application of the applicable DOE Directives in the safeguards and security series.
(b) The contracting officer shall refer to 48 CFR 904.71 for guidance concerning the prohibition on award of a DOE contract under a national security program to a company owned by an entity controlled by a foreign government when access to proscribed information is required to perform the contract.
67 FR 14873, Mar. 28, 2002
970.0404-4 -- Solicitation provision and contract clauses.
(a) The contracting officer shall insert the clause at 970.5204-1, Counterintelligence, into all management and operating contracts and other contracts for the management of DOE-owned facilities which include the security and classification/declassification clauses.
(b) The contracting officer shall refer to 48 CFR 904.404 and 48 CFR 904.7103 for the prescription of solicitation provisions and contract clauses relating to safeguarding classified information and foreign ownership, control, or influence over contractors.
970.0407 -- Contractor records retention.
970.0407-1 -- Applicability.
970.0407-1-1 -- Alternate retention schedules.
Records produced under the Department's contracts involving management and operation responsibilities relative to DOE-owned or-leased facilities are to be retained and disposed of in accordance with the guidance contained in DOE G 1324.5B, Records Management Program and DOE Records Schedules (see current version), rather than those set forth at 48 CFR subpart 4.7, Contractor Records Retention.
970.0407-1-2 -- Access to and ownership of records.
Contracting officers may agree to contractor ownership of certain categories of records designated in the instruction contained in paragraph (b) of the clause at 48 CFR 970.5204-3, Access to and Ownership of Records, provided the Government's rights to inspect, copy, and audit these records are not limited. These rights must be retained by the Government in order to carry out the Department's statutory responsibilities required by the Atomic Energy Act and other statutes for oversight of its contractors, including compliance with the Department's health, safety and reporting requirements, and protection of the public interest.
970.0407-1-3 -- Contract clause.
The contracting officer shall insert the clause at 48 CFR 970.5204-3, Access to and Ownership of Records, in management and operating contracts.
970.0470 -- Department of Energy Directives.
970.0470-1 -- General.
(a) The contractor is required to comply with the requirements of applicable Federal, State and local laws and regulations, unless relief has been granted by the appropriate authority. For informational purposes, the contracting officer may append the contract with a list of applicable laws or regulations (see 970.5204-2, Laws, Regulations, and DOE Directives, paragraph (a)).
(b) The Department of Energy Directives System is a system of instructions, including orders, notices, manuals, guides, and standards, for Departmental elements. In certain circumstances, requirements contained in these directives may apply to a contractor through operation of a contract clause. Program and requirements personnel are responsible for identifying requirements in the Directives System which are applicable to a contract, and for developing a list of applicable requirements and providing it to the contracting officer for inclusion in the contract.
(c) Where directives requirements are established using either the Standards/Requirements Identification Process or the Work Smart Standards Process, the applicable process should also be used to establish the environment, safety, and health portion of the list identified in paragraph (b) of this section.
(d) Environmental, safety, and health (ES&H) requirements appropriate for work conducted under a management and operating contract may be determined by a DOE approved process to evaluate the work and the associated hazards, and identify an appropriately tailored set of standards, practices, and controls, such as a tailoring process included in a DOE approved Safety Management System implemented under 48 CFR 970.5223-1, Integration of Environment, Safety, and Health into Work Planning and Execution. When such a process is used, the contracting officer shall ensure that the set of tailored requirements, as approved by DOE pursuant to the process, is incorporated into the list identified in paragraph (b) of this section. These requirements shall supersede, in whole or in part, the contractual environmental, safety, and health requirements previously made applicable to the contract by List B. If the tailored set of requirements identifies an alternative requirement which varies from an ES&H requirement of an otherwise applicable law or regulation, the contractor must request an exemption or other appropriate regulatory relief that may be specified in the governing regulation.
970.0470-2 -- Contract clause.
The contracting officer shall insert the clause at DEAR 970.5204-2, Laws, Regulations, and DOE Directives, in management and operating contracts. The contracting officer may modify the clause to indicate the location in the contract of List A, List B, or both.
Subpart 970.08--Required sources of supplies and services
970.0801 -- Excess personal property.
970.0801-1 -- Policy.
The provisions of 48 CFR subpart 8.1 (Federal Acquisition Regulation), 41 CFR 101-43 (Federal Property Management Regulation), and 41 CFR 109-43 (DOE Property Management Regulation) apply to DOE's management and operating contracts.
970.0808 -- Acquisition of printing.
970.0808-1 -- Scope of section.
This section prescribes the Department's policy concerning duplicating or printing services which may be required in the performance of management and operating contracts.
970.0808-2 -- Policy.
Management and operating contractors shall provide or secure duplication and printing services in accordance with the Government Printing and Binding Regulations, Title 44 of the U.S. Code, and applicable DOE Directives.
970.0808-3 -- Contract clause.
The contracting officer shall insert the clause at 970.5208-1, Printing, in all management and operating contracts.
Subpart 970.09--Contractor qualifications
970.0905 -- Organizational conflicts of interest.
Management and operating contracts shall contain an organizational conflict of interest clause substantially similar to the clause at 48 CFR 952.209-72, Organizational Conflicts of Interest, and which is appropriate to the statement of work of the individual contract. In addition, the contracting officer shall assure that the clause contains appropriate restraints on intra-corporate relations between the contractor's organization and personnel operating the Department's facility and its parent corporate body and affiliates. Such restraints shall include personnel access to the facility, technical transfer of information from the facility, and the availability from the facility of other advantages flowing from performance of the contract. The contracting officer is responsible for ensuring that M&O contractors adopt policies and procedures in the award of subcontracts that will meet the Department's need to safeguard against a biased work product and an unfair competitive advantage. To this end, the organizational conflicts of interest clause in management and operating contracts shall include Alternate I.
970.0970 -- Performance guarantees.
970.0970-1 -- Determination of responsibility.
(a) In the award of a management and operating contract, the contracting officer shall determine that the prospective contractor is a responsible contractor and is capable of providing all necessary financial, personnel, and other resources in performance of the contract.
(b) DOE contracts with entities that have been created solely for the purpose of performing a specific management and operating contract. Generally, such newly created entities will have very limited financial and other resources. In such instances, when making the determination of responsibility required under this section, the contracting officer may evaluate the financial resources of other entities only to the extent that those entities are legally bound, jointly and severally if more than one, by means of a performance guarantee or other equivalent enforceable commitment to supply the necessary resources to the prospective contractor and to assume all contractual obligations of the prospective contractor. A performance guarantee should be the means used unless an equivalent degree of commitment can be obtained by an alternative means.
(c) The guaranteeing corporate entity(ies) must be found to have sufficient resources in order to satisfy its guarantee.
970.0970-2 -- Solicitation provision.
The contracting officer shall insert the provision at 48 CFR 970.5209-1, Requirement for Guarantee of Performance, in solicitations when the awardee will be required to be organized solely for performance of the requirement.
Subpart 970.11--Describing Agency Needs
970.1100 -- Policy.
970.1100-1 -- Performance-based contracting.
(a) It is the policy of the Department of Energy to use, to the maximum extent practicable, performance-based contracting methods in its management and operating contracts. Office of Federal Procurement Policy Letter 91-2 provides guidance concerning the development and use of performance-based contracting concepts and methodologies that may be generally applied to management and operating contracts. Performance-based contracts: Describe performance requirements in terms of results rather than methods of accomplishing the work; use measurable (i.e., terms of quality, timeliness, quantity) performance standards and objectives and quality assurance surveillance plans; provide performance incentives (positive or negative) where appropriate; and specify procedures for award or incentive fee reduction when work activities are not performed or do not meet contract requirements.
(b) The use of performance-based statements of work, where feasible, is the preferred method for establishing work requirements. Such statements of work and other documents used to establish work requirements (such as work authorization directives) should describe performance requirements and expectations in terms of outcome, results, or final work products, as opposed to methods, processes, or design.
(c) Contract performance requirements and expectations should be consistent with the Department's strategic planning goals and objectives, as made applicable to the site or facility through Departmental programmatic and financial planning processes. Measurable performance criteria, objective measures, and where appropriate, performance incentives, shall be structured to correspond to the performance requirements established in the statement of work and other documents used to establish work requirements.
(d) Quality assurance surveillance plans shall be developed to facilitate the assessment of contractor performance and ensure the appropriateness of any award or incentive fee payment. Such plans shall be tailored to the contract performance objectives, criteria, and measures, and shall, to the maximum extent practicable, focus on the level of performance required by the performance objectives rather than the methodology used by the contractor to achieve that level of performance.
970.1100-2 -- Additional considerations.
(a) While it is not feasible to set forth standard language which would apply to every contract situation, language must be designed for inclusion in a management and operating contract to describe clearly the work being undertaken; the controls, as appropriate, to be exercised by DOE over the performance of that work; and the relationship contemplated between the parties.
(b) The language shall also include the following with respect to subcontracting performance of the work described pursuant to paragraph (a) of this section: "The contractor shall, when directed by DOE and may, but only when authorized by DOE, enter into subcontracts for the performance of any part of the work under this clause."
(c) The provisions required in paragraphs (a) and (b) of this section shall be set forth in the statement of work of the contract.
970.1103-4 -- Contract clause.
Insert the clause at 48 CFR 52.211-5, Material Requirements, in solicitations and contracts.
Subpart 970.15--Contracting by Negotiation
970.1504 -- Contract pricing.
970.1504-1 -- Price analysis.
970.1504-1-1 -- Fees for management and operating contracts.
This subsection sets forth the Department's policies on fees for management and operating contracts and may be applied to other contracts as determined by the Procurement Executive, or designee.
970.1504-1-2 -- Fee policy.
(a) DOE management and operating contractors may be paid a fee in accordance with the requirements of this subsection.
(b) There are three basic principles underlying the Department's fee policy:
(1) The amount of available fee should reflect the financial risk assumed by the contractor.
(2) It is the policy of the Department, when work elements cannot be fixed price, incentive fees (including award fees) tied to objective measures should be used to the maximum extent appropriate.
(3) When work elements cannot be fixed price and award fees are employed, they should be tied to either objective or subjective measures. Each measure should, to the maximum extent appropriate, be directly tied to a specific portion of the fee pool.
(c) Fee objectives and amounts are to be determined for each contract. Standard fees or across-the-board fee agreements will not be used or made. Due to the nature of funding management and operating contracts, it is anticipated that fee shall be established in accordance with the annual funding cycle; however, with the prior approval of the Procurement Executive, or designee, a longer period may be used where necessary to incentivize performance objectives that span funding cycles or to optimize cost reduction efforts.
(d) Annual fee amounts shall be established in accordance with this subsection. Annual amounts shall not exceed maximum amounts derived from the appropriate fee schedule (and Classification Factor, if applicable) unless approved in advance by the Procurement Executive, or designee. In no event shall any fee exceed statutory limits imposed by 41 U.S.C. 254(b).
(e)(1) Contracting Officers shall include negative fee incentives in contracts when appropriate. A negative fee incentive is one in which the contractor will not be paid the full target fee amount when the actual performance level falls below the target level established in the contract.
(2) Negative fee incentives may only be used when:
(i) A target level of performance can be established, which the contractor can reasonably be expected to reach;
(ii) The value of the negative incentive is commensurate with the lower level of performance and any additional administrative costs;
(iii) Factors likely to prevent attainment of the target level of performance are clearly within the control of the contractor; and
(iv) The contract indicates clearly a level below which performance is not acceptable.
(f) Prior to the issuance of a competitive solicitation or the initiation of negotiations for an extension of an existing contract, the HCA shall coordinate the maximum available fee, as allowed by 48 CFR 970.1504-1-1, and the fee amount targeted for negotiation, if less, with the Procurement Executive, or designee. Solicitations shall identify maximum available fee under the contract and may invite offerors to propose fee less than the maximum available.
(g) When a contract subject to this subsection requires a contractor to use its own facilities or equipment, or other resources to make its own cost investment for contract performance, (e.g., when there is no letter-of-credit financing) consideration may be given, subject to approval by the Procurement Executive, or designee, to increasing the total available fee amount above that otherwise provided by this subsection.
(h) Multiple fee arrangements should be used in accordance with 48 CFR 970.1504-1-4.
(i)(1) In addition to other performance requirements specified in the contract, DOE management and operating contractors and other contractors designated by the Procurement Executive, or designee, are subject to performance requirements relating to: environment, safety, and health (ES&H), including worker safety and health (WS&H); and safeguarding of Restricted Data and other classified information. Performance requirements relating to ES&H will be set forth in the contract's ES&H terms and conditions, including a DOE approved Integrated Safety Management System (ISMS), or similar document. As applicable, performance requirements relating to the safeguarding of Restricted Data and other classified information will be set forth in the clauses of the contract entitled "Security" and "Laws, Regulations, and DOE Directives," as well as in other terms and conditions that prescribe requirements for the safeguarding of Restricted Data and other classified information.
(2) If the contractor does not meet the performance requirements of the contract relating to ES&H or to the safeguarding of Restricted Data and other classified information, otherwise earned fee, fixed fee, profit, or share of cost savings may be unilaterally reduced by the contracting officer in accordance with the clause entitled "Conditional Payment of Fee, Profit, and Other Incentives – Facility Management Contracts."
(3) The clause entitled "Conditional Payment of Fee, Profit, and Other Incentives – Facility Management Contracts," provides for reductions of earned fee, fixed fee, profit, or share of cost savings under the contract depending upon the severity of the contractor's performance failure relating to ES&H requirements and, if applicable, relating to the safeguarding of Restricted Data and other classified information. When reviewing performance failures that would otherwise warrant a potential reduction of earned fee, fixed fee, profit, or share of cost savings, the contracting officer must consider mitigating factors that may warrant a reduction below the applicable range specified in the clause. Some of the mitigating factors that must be considered are included in the clause.
(4) The contracting officer must obtain the concurrence of the cognizant Program Secretarial Officer
(i) Prior to effecting any reduction of fee or profit in accordance with the terms and conditions of the clause entitled, "Conditional Payment of Fee, Profit, and Other Incentives – Facility Management Contracts;" and
(ii) For determinations that no reduction of fee or profit is warranted for a particular performance failure(s) that would otherwise be subject to a reduction.
[68 FR 68771, Dec. 10, 2003]
970.1504-1-3 -- Special considerations: Laboratory management and operation.
(a) For the management and operation of a laboratory, the contracting officer shall consider whether any fee is appropriate. Considerations should include:
(1) The nature and extent of financial or other liability or risk assumed or to be assumed under the contract;
(2) The proportion of retained earnings (as established under generally accepted accounting methods) that are utilized to fund the performance of work related to the DOE contracted effort;
(3) Facilities capital or capital equipment acquisition plans;
(4) Other funding needs, to include contingency funding, working capital funding, and provision for funding unreimbursed costs deemed ordinary and necessary;
(5) The utility of fee as a performance incentive; and
(6) The need for fee to attract qualified contractors, organizations, and institutions.
(b) In the event fee is considered appropriate, the contracting officer shall determine the amount of fee in accordance with this subsection.
(1) Costs incurred in the operation of a laboratory that are allowable and allocable under the cost principles (i.e., commercial using 48 CFR 31.2, nonprofit using OMB Circular A-122, or university-affiliated using OMB Circular A-21), regulations (including 48 CFR 970.31), or statutes applicable to the operating contractor should be classified as direct or indirect (overhead or G&A) charges to the contract and not included as proposed fee. Exceptions must be approved by the Procurement Executive, or designee.
(2) Except as specified in 48 CFR 970.1504-1-3(c)(3), the maximum total amount of fee shall be calculated in accordance with 48 CFR 970.1504-1-5 or 48 CFR 970.1504-1-9, as appropriate. The total amount of fee under any laboratory management and operating contract or other designated contract shall not exceed, and may be significantly less than, the result of that calculation. In determining the total amount of fee, the contracting officer shall consider the evaluation of the factors in paragraph (a) of this subsection as well as any benefits the laboratory operator will receive due to its tax status.
(c) In the event fee is considered appropriate, the contracting officer shall establish the type of fee arrangement in accordance with this subsection.
(1) The amount of fee may be established as total available fee with a base fee portion and a performance fee portion. Base fee, if any, shall be an amount in recognition of the risk of financial liability assumed by the contractor and shall not exceed the cost risk associated with those liabilities or the amount calculated in accordance with 48 CFR 970.1504-1-5, whichever is less. The total available fee, excepting any base fee, shall normally be associated with performance at or above the target level of performance as defined by the contract. If performance in either of the two general work categories appropriate for laboratories (science/technology and support) is rated at less than the target level of performance, the total amount of the available fee shall be subject to downward adjustment. Such downward adjustment shall be subject to the terms of the clause at 48 CFR 970.5215-3, Conditional Payment of Fee, Profit, and Other Incentives - Facility Management Contracts, if contained in the contract.
(2) The amount of fee may be established as a fixed fee in recognition of the risk of financial liability to be assumed by the contractor, with such fixed fee amount not exceeding the cost risk associated with the liabilities assumed or the amount of fee calculated in accordance with 48 CFR 970.1504-1-5, whichever is less.
(3) If the fixed fee or total available fee exceeds 75% of the fee that would be calculated per 48 CFR 970.1504-1-5 or 48 CFR 970.1504-1-9; or if a fee arrangement other than one of those set forth in paragraphs (c) (1) or (2) of this subsection is considered appropriate, the approval of the Procurement Executive, or designee, shall be obtained prior to its use.
(4) Fee, if any, as well as the type of fee arrangement, will normally be established for the life of the contract. It will be established at time of award, as part of the extend/compete decision, at the time of option exercise, or at such other time as the parties can mutually reach agreement, e.g., negotiations. Such agreement shall require the approval of the Procurement Executive, or designee.
(5) Fee established for longer than one year shall be subject to adjustment in the event of a significant change (greater than +/-10% or a lessor amount if appropriate) to the budget or work scope.
(6) Retained earnings (reserves) shall be identified and a plan for their use and disposition developed.
(7) The use of retained earnings as a result of performance of laboratory management and operation may be restricted if the operator is an educational institution.
970.1504-1-4 -- Types of contracts and fee arrangements.
(a) Contract types and fee arrangements suitable for management and operating contracts may include cost, cost-plus-fixed-fee, cost-plus-award-fee, cost-plus-incentive-fee, fixed-price incentive, firm-fixed-price or any combination thereof (see 48 CFR 16.1). In accordance with 48 CFR 970.1504-1-2(b)(1), the fee arrangement chosen for each work element should reflect the financial risk for project failure that contractors are willing to accept. Contracting officials shall structure each contract and the elements of the work in such a manner that the risk is manageable and, therefore, assumable by the contractor.
(b) Consistent with the concept of a performance-based management contract, those contract types which incentivize performance and cost control are preferred over a cost-plus-fixed-fee arrangement. Accordingly, a cost-plus-fixed-fee contract in instances other than those set forth in 48 CFR 970.1504-1-3(c)(2) may only be used when approved in advance by the Procurement Executive, or designee.
(c) A cost-plus-award-fee contract is generally the appropriate contract type for a management and operating contract.
(1) Where work cannot be adequately defined to the point that a fixed price contract is acceptable, the attainment of acquisition objectives generally will be enhanced by using a cost-plus-award-fee contract or other incentive fee arrangement to effectively motivate the contractor to superior performance and to provide the Department with flexibility to evaluate actual performance and the conditions under which it was achieved.
(2) The construct of fee for a cost-plus-award-fee management and operating contract is that total available fee will equal a base fee amount and a performance fee amount. The total available fee amount including the performance fee amount the contractor may earn, in whole or in part during performance, shall be established annually (or as otherwise agreed to by the parties and approved by the Procurement Executive, or designee), in an amount sufficient to motivate performance excellence.
(3) However, consistent with concepts of performance-based contracting, it is Departmental policy to place fee at risk based on performance. Accordingly, a base fee amount will be available only when approved in advance by the Procurement Executive, or designee, except as permitted in 48 CFR 970.1504-1-3(c)(1). Any base fee amount shall be fixed, expressed as a percent of the total available fee at inception of the contract, and shall not exceed that percent during the life of the contract.
(4) The performance fee amount may consist of an objective fee component and a subjective fee component. Objective performance measures, when appropriately applied, provide greater incentives for superior performance than do subjective performance measures and should be used to the maximum extent appropriate. Subjective measures should be used when it is not feasible to devise effective predetermined objective measures applicable to cost, technical performance, or schedule for particular work elements.
(d) Consistent with performance-based contracting concepts, performance objectives and measures related to performance fee should be as clearly defined as possible and, where feasible, expressed in terms of desired performance results or outcomes. Specific measures for determining performance achievement should be used. The contract should identify the amount and allocation of fee to each performance result or outcome.
(e) Because the nature and complexity of the work performed under a management and operating contract may be varied, opportunities may exist to utilize multiple contract types and fee arrangements. Consistent with paragraph (a) of this subsection and 48 CFR 16.1, the contracting officer should apply that contract type or fee arrangement most appropriate to the work component. However, multiple contract types or fee arrangements:
(1) Must conform to the requirements of 48 CFR part 915 and 48 CFR parts 15 and 16, and
(2) Where appropriate to the type, must be supported by:
(i) Negotiated costs subject to the requirements of the Truth in Negotiations Act,
(ii) A pre-negotiation memorandum, and
(iii) A plan describing how each contract type or fee arrangement will be administered.
(f) Cost reduction incentives are addressed in the clause at 48 CFR 970.5215-4, Cost Reduction. This clause provides for incentives for quantifiable cost reductions associated with contractor proposed changes to a design, process, or method that has an established cost, technical, and schedule baseline, is defined, and is subject to a formal control procedure. The clause is to be included in management and operating contracts as appropriate. Proposed changes must be: Initiated by the contractor, innovative, applied to a specific project or program, and not otherwise included in an incentive under the contract. Such cost reduction incentives do not constitute fee and are not subject to statutory or regulatory fee limitations; however, they are subject to all appropriate requirements set forth in this subpart.
(g) Operations and field offices shall take the lead in developing and implementing the most appropriate pricing arrangement or cost reduction incentive for the requirements. Pricing arrangements which provide incentives for performance and cost control are preferred over those that do not. The operations and field offices are to ensure that the necessary resources and infrastructure exist within both the contractor's and government's organizations to prepare, evaluate, and administer the pricing arrangement or cost reduction incentive prior to its implementation.
970.1504-1-5 -- General considerations and techniques for determining fixed fees.
(a) The Department's fee policy recognizes that fee is remuneration to contractors for the entrepreneurial function of organizing and managing resources, the use of their resources (including capital resources), and, as appropriate, their assumption of the risk that some incurred costs (operating and capital) may not be reimbursed.
(b) Use of a purely cost-based structured approach for determining fee objectives and amounts for DOE management and operating contracts is inappropriate considering the limited level of contractor cost, capital goods, and operating capital outlays for performance of such contracts. Instead of being solely cost-based, the desirable approach calls for a structure that allows evaluation of the following eight significant factors, as outlined in order of importance, and the assignment of appropriate fee values (subject to the limitations on fixed fee in 48 CFR 970.1504-1-6):
(1) The presence or absence of financial risk, including the type and terms of the contract;
(2) The relative difficulty of work, including specific performance objectives, environment, safety and health concerns, and the technical and administrative knowledge, and skill necessary for work accomplishment and experience;
(3) Management risk relating to performance, including:
(i) Composite risk and complexity of principal work tasks required to do the job;
(ii) Labor intensity of the job;
(iii) Special control problems; and
(iv) Advance planning, forecasting and other such requirements;
(4) Degree and amount of contract work required to be performed by and with the contractor's own resources, as compared to the nature and degree of subcontracting and the relative complexity of subcontracted efforts, subcontractor management and integration;
(5) Size and operation (number of locations, plants, differing operations, etc.);
(6) Influence of alternative investment opportunities available to the contractor (i.e., the extent to which undertaking a task for the Government displaces a contractor's opportunity to make a profit with the same staff and equipment in some other field of activity);
(7) Benefits which may accrue to the contractor from gaining experience and knowledge of how to do something, from establishing or enhancing a reputation, or from having the opportunity to hold or expand a staff whose loyalties are primarily to the contractor; and
(8) Other special considerations, including support of Government programs such as those relating to small and minority business subcontracting, energy conservation, etc.
(c) The total fee objective for a particular annual fixed fee negotiation is established by evaluating the factors in this subsection, assigning fee values to them, and totaling the resulting amounts (subject to limitations on total fixed fee in 48 CFR 970.1504-1-6).
970.1504-1-6 -- Calculating fixed fee.
(a) In recognition of the complexities of the fee determination process, and to assist in promoting a reasonable degree of consistency and uniformity in its application, the following fee schedules set forth the maximum amounts of fee that contracting activities are allowed to award for a particular fixed fee transaction calculated annually.
(b) Fee schedules representing the maximum allowable annual fixed fee available under management and operating contracts have been established for the following management and operating contract efforts:
(1) Production;
(2) Research and Development; and
(3) Environmental Management.
(c) The schedules are:
________________________________________________________________________________
PRODUCTION EFFORTS
Fee base (dollars) Fee (dollars) Fee (percent) Incr. (percent)
Up to $ 1 Million ___ ____ 7.66
1,000,000 $ 76,580 7.66 6.78
3,000,000 212,236 7.07 6.07
5,000,000 333,670 6.67 4.90
10,000,000 578,726 5.79 4.24
15,000,000 790,962 5.27 3.71
25,000,000 1,161,828 4.65 3.35
40,000,000 1,663,974 4.16 2.92
60,000,000 2,247,076 3.75 2.57
80,000,000 2,761,256 3.45 2.34
100,000,000 3,229,488 3.23 1.45
150,000,000 3,952,622 2.64 1.12
200,000,000 4,510,562 2.26 0.61
300,000,000 5,117,732 1.71 0.53
400,000,000 5,647,228 1.41 0.45
500,000,000 6,097,956 1.22 ____
Over $ 500 Million 6,097,956 ____ 0.45
______________________________________________________
______________________________________________________
RESEARCH AND DEVELOPMENT EFFORTS
Fee base (dollars) Fee (dollars) Fee (percent) Incr. (percent)
Up to $ 1 Million ___ ____ 8.42
1,000,000 84,238 8.42 7.00
3,000,000 224,270 7.48 6.84
5,000,000 361,020 7.22 6.21
10,000,000 671,716 6.72 5.71
15,000,000 957,250 6.38 4.85
25,000,000 1,441,892 5.77 4.22
40,000,000 2,075,318 5.19 3.69
60,000,000 2,813,768 4.69 3.27
80,000,000 3,467,980 4.33 2.69
100,000,000 4,006,228 4.01 1.69
150,000,000 4,850,796 3.23 1.14
200,000,000 5,420,770 2.71 0.66
300,000,000 6,083,734 2.03 0.58
400,000,000 6,667,930 1.67 0.50
500,000,000 7,172,264 1.43 ____
Over $ 500 Million 7,172,264 ____ 0.50
______________________________________________________
______________________________________________________
ENVIRONMENTAL MANAGEMENT EFFORTS
Fee base (dollars) Fee (dollars) Fee (percent) Incr. (percent)
Up to $ 1 Million ___ ____ 7.33
$ 1,000,000 73,298 7.33 6.49
3,000,000 203,120 6.77 5.95
5,000,000 322,118 6.44 5.40
10,000,000 592,348 5.92 4.83
15,000,000 833,654 5.56 4.03
25,000,000 1,236,340 4.95 3.44
40,000,000 1,752,960 4.38 3.29
60,000,000 2,411,890 4.02 3.10
80,000,000 3,032,844 3.79 2.49
100,000,000 3,530,679 3.53 1.90
150,000,000 4,479,366 2.99 1.48
200,000,000 5,219,924 2.61 1.12
300,000,000 6,337,250 2.11 0.88
400,000,000 7,219,046 1.80 0.75
500,000,000 7,972,396 1.59 0.58
750,000,000 9,423,463 1.26 0.55
1,000,000,000 10,786,788 1.08 ____
Over $ 1.0 billion 10,786,788 ____ 0.55
____________________________________________________
970.1504-1-7 -- Fee Base.
(a) The fee base is an estimate of necessary allowable costs, with some exclusions. It is used in the fee schedules to determine the maximum annual fee for a fixed fee contract. That portion of the fee base that represents the cost of the Production, Research and Development, or Environmental Management work to be performed, shall be exclusive of the cost of source and special nuclear materials; estimated costs of land, buildings and facilities whether to be leased, purchased or constructed; depreciation of Government facilities; and any estimate of effort for which a separate fee is to be negotiated.
(b) Such portion of the fee base, in addition to the adjustments in paragraph (a) of this subsection, shall exclude:
(1) Any part of the estimated cost of capital equipment (other than special equipment) which the contractor procures by subcontract or other similar costs which is of such magnitude or nature as to distort the technical and management effort actually required of the contractor;
(2) At least 20% of the estimated cost or price of subcontracts and other major contractor procurements;
(3) Up to 100% of the estimated cost or price of subcontracts and other major contractor procurements if they are of a magnitude or nature as to distort the technical and management effort actually required of the contractor;
(4) Special equipment as defined in 48 CFR 970.1504-1-8;
(5) Estimated cost of Government-furnished property, services and equipment;
(6) All estimates of costs not directly incurred by or reimbursed to the operating contractor;
(7) Estimates of home office or corporate general and administrative expenses that shall be reimbursed through the contract;
(8) Estimates of any independent research and development cost or bid and proposal expenses that may be approved under the contract;
(9) Any cost of work funded with uncosted balances previously included in a fee base of this or any other contract performed by the contractor;
(10) Cost of rework attributable to the contractor; and
(11) State taxes.
(c) In calculating the annual fee amounts associated with the Production, Research and Development, or Environmental Management work to be performed, the fee base is to be allocated to the category reflecting the work to be performed and the appropriate fee schedule utilized.
(d) The portion of the fee base associated with the Production, Research and Development, or Environmental Management work to be performed and the associated schedules in this part are not intended to reflect the portion of the fee base or related compensation for unusual architect-engineer, construction services, or special equipment provided by the management and operating contractor. Architect-engineer and construction services are normally covered by special agreements based on the policies applying to architect-engineer or construction contracts. Fees paid for such services shall be calculated using the provisions of 48 CFR 91504-1-5 relating to architect-engineer or construction fees and shall be in addition to the operating fees calculated for the Production, Research and Development, or Environmental Management work to be performed. Special equipment purchases shall be addressed in accordance with the provisions of 48 CFR 970.1504-1-8 relating to special equipment.
(e) No schedule set forth in 48 CFR 915.404-4-71-5 or 48 CFR 970.1504-1-6 shall be used more than once in the determination of the fee amount for an annual period, unless prior approval of the Procurement Executive, or designee, is obtained.
970.1504-1-8 -- Special equipment purchases.
(a) Special equipment is sometimes procured in conjunction with management and operating contracts. When a contractor procures special equipment, the DOE negotiating official shall determine separate fees for the equipment which shall not exceed the maximum fee allowable as established using the schedule in 48 CFR 915.404-4-71-5(h).
(b) In determining appropriate fees, factors such as complexity of equipment, ratio of procurement transactions to volume of equipment to be purchased and completeness of services should be considered. Where possible, the reasonableness of the fees should be checked by their relationship to actual costs of comparable procurement services.
(c) For purposes of this subsection, special equipment is equipment for which the purchase price is of such a magnitude compared to the cost of installation as to distort the amount of technical direction and management effort required of the contractor. Special equipment is of a nature that requires less management attention. When a contractor procures special equipment, the DOE negotiating official shall determine separate fees for the equipment using the schedule in 48 CFR 915.404-4-71-5(h). The determination of specific items of equipment in this category requires application of judgment and careful study of the circumstances involved in each project. This category of equipment would generally include:
(1) Major items of prefabricated process or research equipment; and
(2) Major items of preassembled equipment such as packaged boilers, generators, machine tools, and large electrical equipment. In some cases, it would also include special apparatus or devices such as reactor vessels and reactor charging machines.
970.1504-1-9 -- Special considerations: Cost-plus-award-fee.
(a) When a management and operating contract is to be awarded on a cost-plus-award-fee basis, several special considerations are appropriate.
(b) All annual performance incentives identified under these contracts are funded from the annual total available fee, which consists of a base fee amount (which may be zero) and a performance fee amount (which typically will consist of an incentive fee component for objective performance requirements, an award fee component for subjective performance requirements, or both).
(c) The annual total available fee for the contract shall equal the product of the fee(s) that would have been calculated for an annual fixed fee contract and the classification factor(s) most appropriate for the facility/task. If more than one fee schedule is applicable to the contract, the annual total available fee shall be the sum of the available fees derived proportionately from each fee schedule; consideration of significant factors applicable to each fee schedule; and application of a Classification Factor(s) most appropriate for the work.
(d) Classification Factors applied to each Facility/Task Category are:
______________________________________________________
Facility/task category Classification factor
A 3.0
B 2.5
C 2.0
D 1.25
______________________________________________________
(e) The contracting officer shall select the Facility/Task Category after considering the following:
(1) Facility/Task Category A. The main focus of effort performed is related to:
(i) The manufacture, assembly, retrieval, disassembly, or disposal of nuclear weapons with explosive potential;
(ii) The physical cleanup, processing, handling, or storage of nuclear radioactive or toxic chemicals with consideration given to the degree the nature of the work advances state of the art technologies in cleanup, processing or storage operations and/or the inherent difficulty or risk of the work is significantly demanding when compared to similar industrial/DOE settings (i.e., nuclear energy processing, industrial environmental cleanup);
(iii) Construction of facilities such as nuclear reactors, atomic particle accelerators, or complex laboratories or industrial units especially designed for handling radioactive materials;
(iv) Research and development directly supporting paragraphs (e)(1)(i), (ii), or (iii) of this subsection and not conducted in a laboratory, or
(v) As designated by the Procurement Executive, or designee. (Classification factor 3.0)
(2) Facility/Task Category B. The main focus of effort performed is related to:
(i) The safeguarding and maintenance of nuclear weapons or nuclear material;
(ii) The manufacture or assembly of nuclear components;
(iii) The physical cleanup, processing, handling, or storage of nuclear radioactive or toxic chemicals, or other substances which pose a significant threat to the environment or the health and safety of workers or the public, if the nature of the work uses state of the art technologies or applications in such operations and/or the inherent difficulty or risk of the work is more demanding than that found in similar industrial/DOE settings (i.e., nuclear energy, chemical or petroleum processing, industrial environmental cleanup);
(iv) The detailed planning necessary for the assembly/disassembly of nuclear weapons/components;
(v) Construction of facilities involving operations requiring a high degree of design layout or process control;
(vi) Research and development directly supporting paragraphs (e)(2)(i), (ii), (iii), (iv) or (v) of this subsection and not conducted in a laboratory; or
(vii) As designated by the Procurement Executive, or designee. (Classification factor 2.5)
(3) Facility/Task Category C. The main focus of effort performed is related to:
(i) The physical cleanup, processing, or storage of nuclear radioactive or toxic chemicals if the nature of the work uses routine technologies in cleanup, processing or storage operations and/or the inherent difficulty or risk of the work is similar to that found in similar industrial/DOE settings (i.e., nuclear energy, chemical processing, industrial environmental cleanup);
(ii) Plant and facility maintenance;
(iii) Plant and facility security (other than the safeguarding of nuclear weapons and material);
(iv) Construction of facilities involving operations requiring normal processes and operations; general or administrative service buildings; or routine infrastructure requirements;
(v) Research and development directly supporting paragraphs (e)(3)(i), (ii), (iii) or (iv) of this subsection and not conducted in a laboratory; or
(vi) As designated by the Procurement Executive, or designee. (Classification factor 2.0)
(4) Facility/Task Category D. The main focus of the effort performed is research and development conducted at a laboratory. (Classification factor 1.25)
(f) Where the Procurement Executive, or designee, has approved a base fee, the Classification Factors shall be reduced, as approved by the Procurement Executive, or designee.
(g) Any risks which are indemnified by the Government (for example, by the Price-Anderson Act) will not be considered as risk to the contractor.
(h) All management and operating contracts awarded on a cost-plus-award-fee basis shall set forth in the contract, or the Performance Evaluation and Measurement Plan(s) required by the contract clause at 48 CFR 970.5215-1, Total Available Fee: Base Fee Amount and Performance Fee Amount, a site specific method of rating the contractor's performance of the contract requirements and a method of fee determination tied to the method of rating.
(i) Prior approval of the Procurement Executive, or designee, is required for an annual total available fee amount exceeding the guidelines in paragraph (c) of this subsection.
(j) DOE Operations/Field Office Managers must ensure that all important areas of contract performance are specified in the contract or Performance Evaluation and Measurement Plan(s), even if such areas are not assigned specific weights or percentages of available fee.
970.1504-1-10 -- Special considerations: Fee limitations.
In situations where the objective performance incentives are of unusual difficulty or where the successful completion of the performance incentives would provide extraordinary value to the Government, fees in excess of those allowed under 48 CFR 970.1504-1-5 and 48 CFR 970.1504-1-9 may be allowed with the approval of the Procurement Executive, or designee. Requests to allow fees in excess of those provided under other provisions of this fee policy must be accompanied by a written justification with detailed supporting rationale as to how the specific circumstances satisfy the two criteria listed in this subsection.
970.1504-1-11 -- Documentation.
The contracting officer shall tailor the documentation of the determination of fee prenegotiation objective based on 48 CFR 15.406-1, Prenegotiation objectives, and the determination of the negotiated fee in accordance with 48 CFR 15.406-3, Documenting the negotiation. The contracting officer shall include as part of the documentation: the rationale for the allocation of cost and the assignment of Facility/Task Categories; a discussion of the calculations described in 48 CFR 970.1504-1-5; and discussion of any other relevant provision of this subsection.
970.1504-2 -- Price negotiation.
(a) Management and operating contract prices (fee) and DOE obligations to support contract performance shall be governed by:
(1) The level of activity authorized and the amount of funds appropriated for DOE approved programs by specific program legislation;
(2) Congressional budget and reporting limitations;
(3) The amount of funds apportioned to DOE;
(4) The amount of obligational authority allotted to program officials and Approved Funding Program limitations; and
(5) The amount of funds actually available to the DOE operating activity as determined in accordance with applicable financial regulations and directives.
(b) Funds shall be obligated and made available by contract provision or modification after the funds become available for obligation for payment to support performance of DOE approved projects, tasks, work authorizations, or services.
(c) Contractor expenditures shall be limited to the overall amount of funds available and obligated on the contract. As prescribed at 48 CFR 970.3270(b), the clause at 48 CFR 970.5232-4, Obligation of Funds, is used for this purpose.
970.1504-3 -- Documentation.
970.1504-3-1 -- Cost or pricing data.
(a) The certification requirements of 48 CFR 15.406-2 are not applied to DOE cost-reimbursement management and operating contracts.
(b) The contracting officer shall ensure that management and operating contractors and their subcontractors obtain cost or pricing data prior to the award of a negotiated subcontract or modification of a subcontract in accordance with 48 CFR 15.406-2, and incorporate appropriate contract provisions similar to those set forth at 48 CFR 52.215-10 and 48 CFR 52.215-11 that provide for the reduction of a negotiated subcontract price by any significant amount that the subcontract price was increased because of the submission of defective cost or pricing data by a subcontractor at any tier.
(c) The clauses at 48 CFR 52.215-12 and 48 CFR 52.215-13 shall be included in management and operating contracts.
970.1504-4 -- Special cost or pricing areas.
970.1504-4-1 -- [Removed and Reserved.]
970.1504-4-2 -- [Removed and Reserved.]
970.1504-4-3 -- [Removed and Reserved.]
[71 FR 16241, Mar. 31, 2006]
970.1504-5 -- Solicitation provision and contract clauses.
(a) The contracting officer shall insert the clause at 48 CFR 970.5215-1, Total Available Fee: Base Fee Amount and Performance Fee Amount, in management and operating contracts, and other contracts determined by the Procurement Executive, or designee, that include cost-plus-award-fee arrangements.
(1) The contracting officer shall include the clause with its Alternate I when the award fee cycle consists of two or more evaluation periods.
(2) The contracting officer shall include the clause with its Alternate II when the award fee cycle consists of one evaluation period.
(3) The contracting officer shall include the clause with its Alternate III when the DOE Operations/Field Office Manager, or designee, requires the contractor to submit a self-assessment.
(4) The contracting officer shall include the clause with its Alternate IV when the DOE Operations/Field Office Manager, or designee, permits the contractor to submit a self-assessment at the contractor's option.
(b) [Removed and Reserved.]
[71 FR 16241, Mar. 31, 2006]
(b) (1) The contracting officer shall insert the clause at 48 CFR 970.5215-3, Conditional Payment of Fee, Profit, and Other Incentives – Facility Management Contracts, in all DOE management and operating contracts and other contracts determined by the Procurement Executive, or designee.
(2) The contracting officer shall include the clause with its Alternate I in contracts that do not contain the clause at 48 CFR 952.204-2, Security.
(3) The contracting officer shall include the clause with its Alternate II in contracts that are awarded on a cost-plus-award-fee basis. The contracting officer should consider including the clause with its Alternate II in contracts that are awarded on a multiple fee basis if the cost-plus-award-fee portion of the contract is significant.
[68 FR 68771, Dec. 10, 2003]
(c) The contracting officer shall insert the clause at 48 CFR 970.5215-4, Cost Reduction, in management and operating contracts, and other contracts determined by the Procurement Executive, or designee, if cost savings programs are contemplated.
(d) The Contracting officer shall insert the provision at 48 CFR 970.5215-5, Limitation on Fee, in solicitations for management and operating contracts, and other contracts determined by the Procurement Executive, or designee.
Subpart 970.17--Special Contracting Methods
970.1706 -- Management and operating contracts.
970.1706-1 -- Award, renewal, and extension.
(a) Contract term. Effective work performance under a management and operating contract is facilitated by the use of a relatively long contract term of up to ten (10) years. Accordingly, management and operating contracts shall provide for a basic contract term not to exceed five (5) years and may include an option(s) to extend the term for additional periods; provided, that no one option period exceeds five (5) years in duration and the total term of the contract, including any options exercised, does not exceed ten (10) years. The specific term of the base period and of any options periods shall be determined at the time of the authorization to compete or extend the contract. The term "option" as used in this subpart means a unilateral right in the contract by which the Government can extend the term of the contract. Accordingly, except as may be provided for through the inclusion of an option(s) in the contract to extend the term, any extension to continue the contract with the incumbent contractor beyond its term shall only occur when such extension can be justified under one of the statutory authorities identified in 48 CFR 6.302 and when authorized by the Head of the Agency.
(b) Exercise of option. As part of the review required by 48 CFR 17.605(b), the contracting officer shall assess whether competing the contract will produce a more advantageous offer than exercising the option. The incumbent contractor's past performance under the contract, the extent to which performance-based management contract provisions are present, or can be negotiated into, the contract, and the impact of a change in a contractor on the Department's discharge of its programs are considerations that shall be addressed in the contracting officer's decision that the exercise of the option is in the Government's best interest. The contracting officer's decision shall be approved by the Procurement Executive and the cognizant Assistant Secretary(s).
(c) Conditional Authorization of Non-competitive Extension Made Pursuant to Authority Under CICA. Authorization to extend a management and operating contract by the Head of the Agency shall be considered conditional upon the successful negotiation of the contract to be extended in accordance with the Department's negotiation objectives. The Head of the Contracting Activity shall advise the Procurement Executive no later than 6 months after receipt of the conditional authorization as to whether the Department's objectives will be met and, if not, the contracting activity's plans for competing the requirement.
970.1706-2 -- Contract clause.
The contracting officer shall insert the clause at 48 CFR 52.217-9, Option to Extend the Term of the Contract, in all management and operating contracts when the inclusion of an option is appropriate.
69 FR 75001, December 15, 2004
970.1707 Work for others.
970.1707-1 Scope.
Pursuant to Section 33 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2053), DOE is authorized to make its facilities available to other Federal and non-Federal entities (sponsors) for the conduct of certain research and development and training activities. Pursuant to the Economy Act of 1932, as amended (31 U.S.C. 1535), or other applicable authority, other Federal entities may request DOE to conduct work. DOE has implemented these and other statutory authorities and requirements in its Work for Others Program. DOE's internal procedures governing the Work for Others Program are described in DOE Order 481.1C, WORK FOR OTHERS (NON-DEPARTMENT OF ENERGY FUNDED WORK).
970.1707-2 Purpose.
The purpose of DOE's Work for Others Program is to:
(a) Provide access for non-DOE entities to highly specialized or unique DOE facilities, services, or technical expertise, when private facilities are inadequate;
(b) Increase research and development interactions among DOE's management and operating contractors and industry in order to transfer DOE technologies to industry for further development or commercialization;
(c) Maintain facility core competencies;
(d) Enhance the science and technology capabilities at DOE facilities; and,
(e) Provide assistance to other Federal agencies and non-Federal entities in accomplishing goals that may otherwise be unattainable and to avoid the possible duplication of effort at Federal facilities.
970.1707-3 Terms governing work for others.
(a) DOE's internal review and approval procedural requirements for individual work for others agreements are set forth in DOE Order 481.1C (as supplemented by DOE Manual 481.1-1A for agreements with non-Federal entities), which may be amended from time to time, and such other guidance as may be issued by DOE. Contracting officers must ensure that the contractor's procedures for its operations are consistent with DOE's procedural requirements.
(b) A contractor may perform work for other Federal or non-Federal sponsors only if:
(1) The contractor is authorized by contract clause to perform such work;
(2) The work is not directly funded by DOE appropriations and is fully reimbursed by the sponsor;
(3) The DOE Contracting Officer or authorized designee approves the work in advance; and,
(4) The work is performed in accordance with DOE policies, procedures and directives applicable to the contract.
(c) Contracting officers must ensure that the requesting Federal entity certifies that:
(1) The interagency agreement with DOE complies with the Economy Act of 1932 (31 U.S.C. 1535) and other applicable statutory authorities and 48 CFR 6.002, which prohibits the use of an Interagency Agreement for the purpose of avoiding the competition requirements of the Federal Acquisition Regulation; and,
(2) The work to be performed will not place the DOE contractor in direct competition with the domestic private sector.
970.1707-4 Contract clause.
Insert the clause at 970.5217-1, Work for Others Program (Non-DOE Funded Work), in
any contract that may involve work under the Work for Others Program, pursuant to 970.1707-3(b).
Subpart 970.19--Small, Small Disadvantaged and Women-Owned Small Business Concerns
970.1907 -- Subcontracting with Small Business, Small Disadvantaged Business and Woman-Owned Small Business Concerns.
970.1907-1 -- Subcontracting plan requirements.
Pursuant to the clause at 48 CFR 52.219-9, Small Business Subcontracting Plan, which is required for all management and operating contracts, each management and operating contract shall include a subcontracting plan which is effective for the term of the contract. Goals for the contract shall be negotiated annually when revised funding levels are determined. The plan should include provisions for revising the goals or any other sections of the plan. Such revisions shall be in writing, approved by the contracting officer, and shall be specifically made a material part of the contract.
Subpart 970.22--Application of Labor Policies
970.2200 -- Scope of subpart.
This subpart prescribes Department of Energy labor policies pertaining to the award and administration of management and operating contracts.
970.2201 -- Basic labor policies.
970.2201-1 -- Labor relations.
970.2201-1-1 -- General.
Contracting officers shall, in appropriate circumstances, follow the guidance in 48 CFR Subpart 22.1, as supplemented in this section, in the award and administration of management and operating contracts.
970.2201-1-2 -- Policies.
(a) The extent of Government ownership of the nation's energy plant and materials, and the overriding concerns of national defense and security, impose special conditions on personnel and labor relations in the energy program. Such special conditions include the need for continuity of vital operations at DOE installations; retention by DOE of absolute authority on all questions of security; and DOE review of labor expenses under management and operating contracts as a part of its responsibility for assuring judicious expenditure of public funds. It is the intent of DOE that personnel and labor policies throughout the energy program reflect the best experience of American industry in aiming to achieve the type of stable labor-management relations that are essential to the proper development of the energy program. The following enunciates the principles upon which the DOE policy is based:
(1) Employment standards. (i) Management and operating contractors are expected to bring experienced, proven personnel from their private operations to staff key positions on the contract work and to recruit other well-qualified personnel as needed. Such personnel should be employed and treated during employment without discrimination by reason of race, color, religion, sex, or national origin. Contractors shall be required to take affirmative action to achieve these objectives.
(ii) The job qualifications and suitability of prospective employees should be established by the contractor prior to employment by careful personnel investigations. Such personnel investigations should include, as appropriate: A credit check; verification of high school degree/diploma or degree/diploma granted by an institution of higher learning within the last 5 years; contacts with listed personal references; contacts with listed employers for the past 3 years (excluding employment of less than 60 days duration, part-time employments, and craft/union employments); and local law enforcement checks when such checks are not prohibited by State or local law or regulation, and when the individual resides in the jurisdiction where the contractor is located. When a DOE access authorization (security clearance) will be required, the aforementioned preemployment checks must be conducted and the applicant's job qualifications and suitability must be established before a request is made to the DOE to process the applicant for access authorization. Evidence must be furnished to the DOE with the applicant's security forms that specify: The date each check was conducted, the entity contacted that provided information concerning the applicant, a synopsis of the information provided as a result of each contact, and a statement that all information available has been reviewed and favorably adjudicated in accordance with the contractor's personnel policies. When an applicant is being hired specifically for a position which requires a DOE access authorization, the applicant shall not be placed in that position prior to the access authorization being granted by the DOE unless an exception has been obtained from the Head of the Contracting Activity, or designee. If an applicant is placed in that position prior to access authorization being granted by the DOE, the applicant may not be afforded access to classified matter or special nuclear materials (in categories requiring access authorization) until the DOE notifies the employer that access authorization has been granted. Management and operating contractors and other contractors operating DOE facilities may include the requirements set forth in this subsection in subcontracts (appropriately modified to identify the parties) wherein subcontract employees will be required to hold DOE access authorization in order to perform on-site duties, such as protective force operations.
(iii) Consisten | 
