Sec. 970.5204-27 Consultant or other comparable employment services of contractor employees. 970.5204-28 Assignment. 970.5204-29 Permits or licenses. 970.5204-30 Notice of labor disputes. 970.5204-31 Litigation and claims. 970.5204-32 Required bonds and insuranceexclusive of Government property (costtype contracts). 970.5204-33 Priorities and allocations. 970.5204-34 Sensitive foreign nations control. 970.5204-35 Controls in the national interest (unclassified contracts with educational institutions). 970.5204-36 Organizational conflicts of interest (contracts with universities where DOE has major investments in facilities but does not own or lease the land). 970.5204-37 Statement of work (management and operating contracts). 970.5204-38 Special clause for procurement of construction. 970.5204-39-970.5204-40 [Reserved] 970.5204-41 Preservation of individual oc cupational radiation exposure records. 970.5204-42 Key personnel. 970.5204-43 Other Government contrac 970.7104-43 Government property. 970.7104-44 Foreign travel. 970.7104-45 Anti-Kickback Act of 1986. Enforcement 970.7104-46 Setoff of assigned subcontract proceeds. 970.7104-47 Additional flowdown and ex tension provisions. 970.7105 Purchasing from contractor-affiliated sources. 970.7106 Procedures for handling mistakes relating to management and operating contractor purchases. 970.7107 Protest of management and operating contractor procurements. 970.7108 Review and approval. Sec. 970.7109 Advance notification. 970.7110 Nuclear material transfers. AUTHORITY: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 2201), sec. 644 of the Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7254), sec. 201 of the Federal Civilian Employee and Contractor Travel Expenses Act of 1985 (41 U.S.C. 420) and sec. 1534 of the Department of Defense Authorization Act, 1986, Pub. L. 99145 (42 U.S.C. 7256a), as amended. SOURCE: 49 FR 12063, Mar. 28, 1984, unless otherwise noted. 970.0000 Scope of part. This part provides Departmental requirements and provisions regarding award and administration of management and operating contracts as defined at FAR Subpart 17.6 and Subpart 917.6 of this chapter. Use of a management and operating contract must be authorized by the Secretary, Deputy or Undersecretary. For administrative convenience, the subparts of this part are arranged in the same numeric sequence as the parts of the FAR. Thus, for example, requirements regarding Small Business are found at 970.19 and guidance regarding Contract Clauses is found at 970.52. To the extent possible the same subpart section and subsection Titles of the FAR are applied in this Part 970. There are some difference for convenience. When there is no specific guidance of a FAR part/ section or applicability of a FAR part/section to DOE management and operating contracts a subpart or section will not be included. 970.0001 Renewal of management and operating contracts. (a) In accordance with applicable law, rules, or regulations and FAR 17.605, competition of existing management and operating contracts will be sought whenever it appears likely that the Government's position may be meaningfully improved in terms of cost or performance, unless it is determined that to change a contractor would be contrary to the best interest of the Government. Except in those cases where the contract specifically permits the Government to bring in a replacement contractor, it is not practical in most instances to compete a management and operating contract which includes major Governmentowned facilities on contractor-owned or leased sites. In such cases, the alternatives would be to extend the contract or to allow the contract to expire and, if the work is to be continued, place all or some part of the work with another contractor at a different site. (b) The following factors, as a minimum, shall effect whether an existing management and operating contract should be completed. (1) Overall performance of an incumbent contractor including specific consideration of the contractor's administrative, environmental, safeguards and security, safety, health, site planning, maintenance and construction, facility management, energy conservation program considerations, cost, schedule and technical perform ance. (2) Potential impact of change in contractors on programmatic activities. (3) The likelihood that qualified industrial firms or other organizations will compete for the contract. Subpart 970.03-[Reserved] Subpart 970.04-Administrative Matters 970.0404 Safeguarding classified information. 970.0404-1 Definitions. "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, April 2, 1982 (47 FR 14874, April 6, 1982), 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. "Restricted Data" means data which is defined in section II, of the Atomic Energy Act of 1954, as amended, as "all data concerning: (1) Design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production 30-185 0-90--18 of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 142." [49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984] 970.0404-2 General. (a) The basis of DOE's security requirements is the Atomic Energy Act of 1954, as amended. is (b) DOE regulations concerning national security information are codified at 10 CFR Part 1045 and Part 710. Supplemental security material found in the DOE Directives and Orders system. Foreign ownership, control, or influence over contractors as it relates to security and discussed at 904.70 also applies to management and operating contracts. Regulations pertaining to the protection of restricted data is found under 10 CFR Part 1016. (c) Statutory requirements to be observed in connection with the release of Restricted Data to foreign governments are contained in the Atomic Energy Act of 1954, Sections 141 and 144. (d) Section 148 of the Atomic Energy Act (42 U.S.C. 2168) prohibits the unauthorized dissemination of unclassified nuclear information with respect to the atomic energy defense programs pertaining to: (1) The design of production facilities or utilization facilities; (2) Security measures (including security plans, procedures, and equipment) for the physical protection of: (i) Production or utilization facilities, (ii) nuclear material contained in such facilites, or (iii) nuclear materials in transit; or (3) The design, manufacture, or utilization of any atomic weapon or component if the design, manufacture, or utilization of such weapon or component was contained in any information declassified or removed from the Restricted Data category pursuant to section 142 of the Atomic Energy Act. [49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984] 970.0404-3 Responsibilities of contracting officers. (a) If access to Restricted Data may be required, during the solicitation process for a management and operating contract security clearances shall be obtained as noted in DOE Order 5631.2 (b) Management and operating contracts which may require the processing or storage of Restricted Data or Special Nuclear Material require application of the provisions of DOE Orders 5634.1; 5635.1; and 5632.2. 970.0404-4 Contract clauses. (a) The security clauses to be used in DOE management and operating contracts are found at 970.5204. They are: (1) Security and Classification, 970.5204-1. This clause is required in management and operating contracts under section 41 (ownership and operation of production facilities) of the Atomic Energy Act of 1954, as amended; and all management and operating contracts which involve classified information. (2) [Reserved] (3) Sensitive foreign nation controls, 970.5204-34. This clause is required in all management and operating contracts. (4) Foreign ownership, control, or influence, 970.5204-10. The clause is required in all management and operating contracts. (b) The clause at 970.5204-5, Disclosure of Information may be used in place of the clauses entitled "Security" and "Classification" in contracts for work that are not likely to produce classified information or restricted data. (c) Include the clause at 952.204-73 in a solicitation for a management and operating contract. [49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984, as amended at 52 FR 38426, Oct. 16, 1987] 970.0406 Uniform reporting system. DOE 5700.7B, Work Authorization System, of September 24, 1986, provides specific guidance with respect to the applicability of the Uniform Reporting System to management and operating contracts. It provides that the Uniform Reporting System plans and reports be used whenever management reports on work packages or tasks are necessitated by the nature of the work package. The specific plans and reports to be used and their frequency are negotiated between the program manager, through the responsible operations office, and the contractor, and will be negotiated based on the versions of the DOE Orders cited in 904.601-71 and this subsection 970.0406 in effect at the time of negotiation, and 5 CFR 1320.4 and 1320.6. [52 FR 28717, Aug. 3, 1987] 970.0407 Record retention requirements. The requirements of FAR Subpart 4.7 do not apply to management and operating contractors. The contract shall include clause at 970.5204-9. [49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27, 1988] Subpart 970.08-Required Sources of Supplies and Services 970.0801 Excess personal property. The provisions of FAR Subpart 8.1, FPMR 41 CFR 101-43, and DOE-PMR 41 CFR 109-43 apply. 970.0803 Acquisition of utility services. The requirements of FAR Subpart 8.3 shall be applied to management and operating contractors who are authorized to procure utility services. (a) All utility services (except telecommunications) that are required for Government-owned and contractor-operated facilities shall generally be procured directly by DOE and not by the contractors that manage and operate these facilities for DOE. (b) However, when it is economically advantageous or otherwise in the best interest of the Government, and subject to the provisions of 970.0803(c), Heads of Contracting Activities may authorize a contractor that manages or operates a DOE facility to procure utility services on a subcontract basis. When a contractor is authorized to subcontract for utility services under the authority of this paragraph (b), a copy of the authorization, together with a statement of justification, shall be sent to the Project and Facilities Management Office, Headquarters. Heads of Contracting Activities shall require contractors which they authorize to subcontract for utility services to comply with the requirements of 970.0803(c), dealing with the prior review of certain proposed acquisitions. (c) Heads of Contracting Activities shall submit, to the utility element in the Office of Project and Facilities Management for Headquarters' review and approval, proposed contracts for utility services (except telecommunications), including proposed authorizations under applicable GSA area-wide contracts, and proposed memoranda of understanding for consolidated purchase, joint use, or cross-service by DOE with other Government agencies, when one of the circumstances described at FAR 8.307 applies or if the contract term is to exceed one year. (d) Section 164 of the Atomic Energy Act of 1954 establishes special authorities relative to the acquisition of electric utility services for the Oak Ridge, Paducah, and Portsmouth installations. [49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984] Subpart 970.09—Contractor Qualifications 970.0905 Organizational conflicts of interest. All management and operating contracts shall contain an appropriate organizational conflict of interest clause. The disclosure or representation requirement of 909.570-6 and an appropriate clause such as those found at 952.209-71 and 952.209-72 shall be included in solicitations and resulting contracts. The contracting officer shall consider provisions which assure appropriate restraints on intercorporate relations between the contractor's organization and personnel operating the Department's facility and its parent corporate body and affiliates, including personnel access to the facility, technical transfer of information from the facility, and the availability from the facility of other advantages Department of Energy management and operation contracts provide for the operation, maintenance, or support, on behalf of the Department, Government-owned or controlled research, development, special production or testing facilities established wholly for or principally devoted to one or more major programs of the Department. 970.1002 Statement of work. (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 (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) In management and operating contracts when the contractor is expected to perform no Davis-Bacon work with his own forces, the special clause in 970.5204-38 shall be included in the language. (d) The provisions required above shall be set forth in a Statement of work clause to be included in the contract. Subpart 970.15—Contracting by 970.1508 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) Management and operating contracts shall contain appropriate provisions to limit contractor expenditures to the overall amount of funds available and obligated. The clause at 970.5204-15 shall be used for this pur pose. 970.1508-1 Cost or pricing data. The certification requirements of FAR 15.804-2, are not applied to DOE cost-reimbursement management and operating contracts. [49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27, 1988] 970.1509 Fees for management and operating contracts. 970.1509-1 Fee policy. (a) DOE mangement and operating contractors, except educational institutions, may be paid a fee. The fee for a management and operating contract shall be an amount commensurate with the difficulty of the work and the |