933.106 Solicitation provision. The contracting officer shall supplement the provision at 52.233-2, Service of Protest, in solicitations for other than small purchases by adding the provision at 952.233-2. 933.170 Subcontract level protests. (a) The General Accounting Office has stated it will not consider subcontract level protests except where the subcontract is "by" or "for" the Government (see Optimum Systems, Incorporated, 54 Comp. Gen. 767 (1975), 75-1 CPD ¶ 166). The Department also will not consider a subcontract level protest except where the subcontract is "by" or "for" the Government. If the subcontract level protest involves a management and operating prime contractor, see Subpart 970.4406. (b) Upon receiving notice of a subcontract level protest to the Department prior to award, the contracting officer shall notify the prime contractor and shall direct that award not be made prior to resolution of such protest unless a request to make an award in the face of a protest is approved by the Procurement Executive in accordance with 933.103(a). If notice of a protest is filed with the contracting officer within 10 days after award, the contracting activity shall contact the Headquarters Business Clearance Division for guidance. (c) Upon receiving notice of a subcontract level protest to the GAO either before or after award the contracting officer shall contact the Business Clearance Division Headquarters for guidance relating to suspension of award or stay of performance. (d) Within 3 working days of notice of a subcontract level protest, to the Department or with the GAO, the contracting officer shall develop a position on whether the protest falls within the scope of paragraph (a) above and shall communicate that position to the Business Clearance Division. If it is determined that the protest falls within the scope of paragraph (a), a report shall be prepared in accordance with applicable procedures. If it is determined that the protest does not fall within the scope of paragraph (a), a report shall be prepared making a case for nonjurisdiction. Where a reasonable question exists as to whether the GAO or DOE should take jurisdiction, the Department's report should address both the jurisdiction and merit issues. (e) If the GAO or the Procurement Executive does not agree with a report recommending nonjurisdiction, a supplemental report addressing the merit issue shall be provided to the Business Clearance Division within 15 working days of notification of such disagreement. (f) Preparation of reports on subcontract level protests is the responsibility of the contracting officer. Assistance shall be obtained from DOE counsel and may be obtained from the prime contractor to the degree deemed appropriate. Subpart 933.2-Disputes and Appeals 933.211 Contracting officer's decision. (a) In addition to the information specified in FAR 33.211, the contracting officer's decision shall include the contracting officer's written findings of fact. See Subpart 917.72 for the conditions under which Program Research and Development Announcements may be used, and the procedures for their use. 935.010 Scientific and technical reports. (c) All research and development contracts which have as a requirement the submission of a scientific or technical report shall include a provision which requires the contractor to submit a copy of the final, edited report to the following address: U.S. Department of Energy Technical Information Center, P.O. Box 62, Oak Ridge, TN 37830. (d) Contractors shall be required to submit with the report a completed DOE Form RA-426, "DOE and Major Contractor Recommendations for Announcement and Distribution of Documents," except when the contract is with an educational institution, in which case the contractor shall be required to submit with the report a completed DOE Form RA-427, “University Contractor, Grantee and Cooperative Agreement Recommendations for Announcement and Distribution of Documents." 935.015 Contracts for research with educational institutions and nonprofit organizations. See Subpart 917.71 for the conditions and procedures under which Special Research Contracts may be used and the procedures for their use. 935.070 Contract clauses. Insert the clause at 952.235-70, Key Personnel, in Research and Development contracts under which performance is largely dependent on the expertise of specific key personnel. To prevent administrative burden, the list should be as limited as possible. PART 936-CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS Subpart 936.2-Special Aspects of Contracting for Construction Sec. Sec. 936.7003-1 Rental agreement. 936.7003-2 Rental rates. 936.7003-3 Insurance. 936.7003-4 Option to purchase equipment. Subpart 936.71—Inspection and Acceptance 936.7100 Scope of subpart. 936.7101 Construction contracts. Subpart 936.72—Acquisition of Special 936.7200 Scope of subpart. 936.7202 Description of acquisition services. Subpart 936.73—Outline for Equipment Rental Agreement 936.7300 Scope of subpart. 936.7301 Outline of agreement for rental of contractor-owned construction equipment. 936.7302 Outline of agreement for rental of third-party owned construction equipment. AUTHORITY: 42 U.S.C. 7254; 40 U.S.C. 486(c). SOURCE: 49 FR 12016, Mar. 28, 1984, unless otherwise noted. Subpart 936.2-Special Aspects of Contracting for Construction 936.202 Specifications. (a) Construction specifications shall allow the use of concrete which contains fly ash as an optional or alternate material in accordance with 910.004 unless a determination is made that its use is technically unacceptable. (b) The list of excepted supplies appearing at FAR 25.108 shall be noted in the specifications. (c) To support all invitations for bids, plans and specifications will be available on request to all prospective bidders, including general contractors, subcontractors, and material and equipment suppliers. Where the cost of reproduction is $10 or more, the charge shall be a minimum of $10 and subject to a maximum of $500, depending upon the size of the project and the number of drawings and the volume of specifications involved. Where the cost of reproduction is less than $10, the contracting officer has authority to make distribution at cost of reproduction, or free of charge, as a particular situation dictates. (d) No refund for the return of plans and specifications will be made except when the invitation is canceled. Under such circumstances, refund of payments will be made upon return of the plans and specifications in good condition to the issuing office. (e) Plans and specifications will be issued without charge to such organizations as The Associated General Contractors of America, American Road Builders' Association, Dodge Reports, Blue Reports, Brown's Letters, Inc., builders and contractors exchanges in the locality in which the project is to be constructed, and others that maintain public plan display rooms. (f) Payments received for plans and specifications shall be handled in accordance with the regulations prescribed by the General Accounting Office in sections 3020-10 and 3030 of Title 7 of GAO Manual for Guidance of Federal Agencies. (g) If the contracting officer desires to have the architect-engineer or construction manager handle the furnishing of plans and specifications and payments therefor, the invitations for bids should so state, and the architectengineer or construction management contract shall provide the manner in which the receipts are to be handled, generally as a credit to the contract. (h) No charge will be made to original receivers of plans and specifications for revised sheets of drawings and revised pages of specifications which are issued by amendments to invitations. (i) Plans and specifications may be issued in complete sets only, or in complete sets and parts of sets, as the Head of the Contracting Activity determines to be best. If less than complete sets of plans and specifications are issued, the distribution should be based on an applicant's request for specific pages and drawing sheets. (j) When a non-refundable fee is to be charged, a provision substantially the same as 952.236-72 shall be included in the solicitation. Subpart 936.6-Architect-Engineer Services 936.601 Policy. To ensure the broadest publicity concerning DOE's interest in obtaining architect-engineer services, a notice of intention to contract for architect-engineer services shall be prepared and published for each acquisition of architect-engineer services, in accordance with the requirements of FAR 5.205(c) and 5.207. The submissions requested and received as part of the architect-engineer selection process differ in substance from proposals received for other types of acquisition. Consequently, the policies and procedures contained in FAR 15.412 concerning the consideration of the late responses are not applicable to proposals submitted under the provisions of this Subpart 936.6. [49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984] 936.602-2 Evaluation boards. evaluation (a) Architect-engineer boards shall be used for the selection of professional architect-engineer services when the estimated cost of the contract is $500,000 or more. Except as provided by this subpart, the use of architect-engineer evaluation boards shall be governed by the general policies and procedures contained in FAR 36.6 and the policies concerning the selection of such contractors by board process contained in internal DOE Directives. These policies and procedures are also applicable to the selection of architect-engineers for awards of less than $500,000. However, less formal procedures and practices may be followed, depending upon the circumstances in each particular selection, at the discretion of the selecting official. The Source Selection Official, as designated in 915.612, shall establish an architect-engineer evaluation board and select the contractor. [49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984] 936.602-3 Evaluation board functions. (a)(1) Firms indicate their general interest in providing services by annual submittal of Standard Form 254; and indicate specific interest in providing services for a particular project, in response to the public announcement, by submittal of Standard Form 255 (and Standard Form 254 if not previously submitted). Supplemental information may be solicited as a means of initiating the discussion phase of the architect-engineer selection process. This may be particularly appropriate for the larger or more sufficient complex projects where qualification and performance data are not available from the Standard Forms 254 and 255, and additional information beyond that already furnished is needed to apply the selection criteria and evaluate and rank the firms. Firms should not be requested to furnish the same information previously submitted on Standard Forms 254 and 255, nor should they be requested to submit preliminary designs, plans and drawings, except in appropriate circumstances involving design competitions. (2) After the notice of intention to contract for architect-engineer services has been published and the date for submission of the standard forms has passed, the evaluation board and/ or the selecting official shall review and evaluate the Standard Form 254 and the Standard Form 255, where applicable, submitted in response to the public announcement. Consideration should be given to requesting submission of a Standard Form 255, by qualified firms which fail to respond to the public announcement to assure adequate competition. Based on this evaluation, no less than three firms shall be selected for the purpose of holding discussions. It is not necessary to hold discussions with any firm that fails to submit a Standard Form 255, where required. (c)(1) Normally, only those firms which are compatible with the size and complexity of the job requirements should be considered for discussions; that is, for a small, relatively simple job, firms whose resources and qualifications are far in excess of the job requirements should not be considered unless no satisfactory response is received from any other compatible highly qualified firm, and where size and simplicity of the project permit, consideration should be limited to the geographic area of the project. (2) Every opportunity and encouragement shall be given to small business, small disadvantaged businesses and women-owned small business concerns firms. Toward this end, groups that propose to form a joint venture or engage the services of small consulting firms for portions of the effort shall be given full consideration by the evaluation board and the selection official of their combined qualifications. (3) After three or more firms have been selected in accordance with 936.602-70, discussions shall be held with these firms regarding anticipated concepts and the relative utility of alternative methods of approach for furnishing the required services. These discussions may be used to obtain additional qualification, performance, and management data, and other information needed to properly apply the evaluation criteria and evaluate the firms under consideration. (4) Requests for supplemental information shall not request firms to submit price proposals. Such requests can be used only to obtain information that will enable DOE to select the best qualified contractor. When a request for supplemental information is made, some wording should be included to identify it with the discussion phase of the selection process similar to the following: "As a result of our evaluation of material on file with this office and the SFS 254 and/or 255 submitted in response to Public announcement we have selected your firm for further consideration for selection and award of a contract to perform the architectengineer services which are described below. The principal purpose of this request is to obtain additional specific qualification and performance data concerning your firm." (5) The term "discussions" includes telephone conversations, exchange of correspondence, or interviews. The term "interview" as used in FAR 5.207(d), Note 63, means "discussions" as defined above. (d) When the evaluation board completes its functions, it shall prepare a report, including its recommendations, and submit it along with the solicitation, selection criteria, weights, and other information and documents, as may be requested, to the Source Selection Official through the Procurement Executive, or designee, when the Source Selection Official is in Headquarters. The Procurement Executive, or designee, shall arrange for appropriate Headquarters review of the report and prepare an action memorandum to the Source Selection Official for consideration in making the selection. (e) The evaluation board's duties will ordinarily include preparation of the public announcement (936.601) and development of evaluation criteria, based on architect-engineer services requirements established by the appropriate DOE program and staff organization; development of evaluation criteria weighting; review and evaluation of Standard Forms 254 and 255; review and evaluation of information from other sources, such as appraisals of performance on previous contracts awarded to the architect-engineer firm; development of additional information requirements and conduct of discussions with firms selected for further consideration; determination of ranking of the firms evaluated; preparation of the evaluation board report and presentation of the board's findings, or recommendations, to the selecting official. (f) The public announcement (see 936.601) covering the requirement for architect-engineer services, criteria and relative weightings, as developed by the evaluation board, shall be submitted to the Procurement Executive or designee, for appropriate review and comment prior to issuance of the announcement, where it is a Headquarters' selection or requires Headquarters' review and approval of the contract action. Commerce Business Daily announcements shall be prepared in accordance with FAR Subpart 5.2. [49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984] 936.602-4 Selection authority. (b) Upon completion of discussions and evaluation of the firms that were selected for discussions, the board shall recommend to the selecting offi |