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PART 9-1 GENERAL
Subpart 9-1.0 Regulation System
89–1.001 Scope of subpart.
This subpart sets forth introductory information pertaining to the Department of Energy Procurement Regulations, hereinafter referred to as the DOE-PR, explains their purpose, authority under which they are issued, their relationship to the FPR system, applicability, method of issuance, exclusions, arrangement, and deviation procedure.
(a) This subpart establishes Chapter 9, Department of Energy Procurement Regulations (DOE-PR), implementing and supplementing the Federal Procurement Regulations (FPR), and states its relationship to the FPR.
(b) Where the FPR coverage is sufficient to DOE needs, no additional coverage will be provided in the DOE-PR.
The DOE-PR are issued by the DOE Senior Procurement Official, Headquarters, with appropriate concurrences from other officials (e.g., Counsel, and any other appropriate headquarters offices) under authority delegated by the Secretary in accordance with the authority of Section 644 of the Department of Energy Organization Act of 1977 (P.L. 95–91), the Federal Property and Administrative Services Act of 1949, as amended, and other applicable law.
(a) The FPR and DOE-PR apply to all DOE purchases and contracts for the procurement of property or services, except real property, which obligate appropriated funds, made within or outside the United States of America unless otherwise specified herein. In cases of procurements which obligate non-appropriated funds, these regulations shall be utilized as a guide to the maximum extent practicable. Requests for authority to deviate from the FPR and DOE-PR shall comply with procedures set forth in FPR 1-1.009 and 89-1.009.
(b) The DOE Procurement Regulations do not apply to the solicitation, award, administration, or use of any assistance instruments under the several DOE assistance programs. DOE assistance instruments are governed by the Department of Energy Assistance Regulation as published in 10 CFR II-600. An assistance instrument is defined as a legal instrument which reflects a relationship between the Federal Government and any eligible recipient in which the principal purpose of the relationship is the transfer of money, property, services or anything of value to such recipient in order to accomplish a public purpose of stimulation or support authorized by Federal statute, rather than acquisition by purchase, lease or barter, of property or services for the direct benefit or use of the Federal Government. Assistance instruments include grants, cooperative agreements, direct loans, loan guarantees, subsidies, direct payments, and insurance or assumptions of risk and technical assistance.
Certain DOE policies and procedures which come within the scope of this Chapter 9 may be excluded from DOE Procurement Regulations where there is appropriate justification, such as:
(a) Subject matter which bears a security classification (See FPR 1-1.005(a)).
(b) Matters dealing with Federal assistance programs where instruments other than procurement contracts will be awarded.
(c) Instructional or training material that explains more fully matters covered in the FPR and DOE-PR.
89-1.006–1 Code arrangement.
(a) The DOE-PR implement and supplement the FPR. Implementing material is that which expands upon or indicates the manner of compliance with related FPR material. Absence of a corresponding part, subpart, section, etc., in the DOE-PR indicates that the FPR material is applicable as written. Supplementing material is that for which there is no counterpart in the FPR.
(b) The effective date of FPR issuances throughout DOE will be the date indicated in the respective issuances unless otherwise provided in the DOE Procurement Regulations. FPR material will be repeated, paraphrased, or otherwise stated in the DOE-PR only to the extent necessary to implement or to indicate deviation from the FPR. DOE-PR material will be effective throughout DOE on the date indicated in the respective issuances.
The DOE Procurement Regulations appear in the Code of Federal Regulations as Chapter 9 of Title 41, Public Contracts and Property Management, and are published in the daily issues of the Federal Register, in cumulative form in the Code of Federal Regulations, and in separate looseleaf volume form.
Copies of the DOE Procurement Regulations published in the Federal Register and in the Code of Federal Regulations may be purchased by Federal agencies and the public at nominal cost from the Superintendent of Documents, Government Printing Office, Washington, DC 20402.
89-1.007-1 General plan.
The DOE Procurement Regulations employ the same numbering system and nomenclature used in the FPR, and conform with Federal Register standards approved for the FPR.
(a) Where the DOE Procurement Regulations implement the FPR, the implementing part, subpart, section or subsection of the DOE-PR will be numbered and captioned, to the extent possible, to correspond to the part, subpart, section, or subsection of the FPR.
(b) Where the DOE-PR supplements the FPR, the numbers 50 and up will be assigned to the parts, subparts, or sections involved.
(c) Where the subject matter contained in a part, subpart, section, or subsection of the FPR requires no implementation, the DOE-PR will contain no corresponding part, subpart, section, or subsection number and the subject matter as published in the FPR governs. 89-1.008 Implementation.
(a) Procurement policies and procedures will be issued in the DOE-PR by the Senior Procurement Official, Headquarters, after appropriate concurrences from other officials.
(6) Implementing procedures, instructions, and guides which are necessary to clarify or to implement the DOE-PR within DOE field or Headquarters organizations may be issued by procuring activities. Procuring activities have the authority to establish the review and approval levels for various procurement actions, within their respective organizations, up to the dollar authority level delegated to that organization by the head of the agency and/or the Senior Procurement Official, Headquarters, providing the implementing procedures, instructions and guides:
(1) are consistent with the policies and procedures contained in this regulation as implemented and supplemented from time to time;
(2) to the extent practicable, follow the format, arrangement, and numbering system of this regulation; and
(3) contain no material which duplicates, paraphrases, or is inconsistent with the contents of this regulation. 89-1.009 Deviation. 89-1.009-2 Procedure.
(a) Requests for authority to deviate from the provisions of the FPR or the DOE-PR shall be submitted by letter as far in advance as the exigencies of the situation will permit. Each request for deviation shall contain the following:
(1) A statement of the deviation desired, including identification of the specific paragraph number(s) of the FPR or DOE-PR;
(2) The reason why the deviation is considered necessary or would be in the best interests of the Government;
(3) If applicable, the name of the contractor and identification of the contract affected;
(4) A statement as to whether the deviation has been requested previously and, if so, circumstances of the previous request;
(5) A description of the intended effect of the deviation;
(7) Any pertinent background information which will contribute to a full understanding of the desired deviation.
(b) In individual cases, deviations from either the FPR or the DOE-PR will be authorized only when essential to effect necessary procurement or where special circumstances make such deviations clearly in the best interest of the Government. Heads of Procuring Activities (HPAs) are authorized to approve all deviations, (except for cost principles), in individual cases, within their delegated dollar authority, after coordination with Counsel and such other DOE personnel as required, with a copy to the Senior Procurement Official, Headquarters. Deviations, either in excess of an HPA's delegated dollar authority or involving cost principles contained in Parts 9-15, 9-50.15 and 9-50, 704, shall not be made unless such action is authorized by the Senior Procurement Official, Headquarters, after consultation with General Counsel, and any other appropriate Headquarters office, on the basis of a written justification stating clearly the special circumstances involved. For deviations from policies and procedures or clauses involve ing patents, data and copyrights, the concurrence of the Assistant General Counsel for Patents
shall be obtained as provided in 89-9.107–4(k).
(c) Where deviations from the FPR or DOE-PR in classes of cases are considered necessary, requests for authority to deviate shall be submitted by letter to the Senior Procurement Official, Headquarters, who will, after appropriate concurrences from other officials (e.g., Counsel, and such other DOE personnel as required), consider the submission jointly with the General Services Administration (GSA) as appropriate. Class deviations to the FPR or the DOE-PR involving patents, data, and copyrights shall be forwarded to the Senior Procurement Official, Headquarters, via the Assistant General Counsel for Patents. Where circumstances preclude obtaining prior concurrence of GSA as required, the Senior Procurement Official, Headquarters, may authorize deviation and shall inform GSA of the deviation including the circumstances under which it was required.
$9-1.050 Amendment of regulation.
This regulation may be amended from time to time by the Senior Procurement Official, Headquarters, with appropriate concurrences from other officials (e.g., Counsel, and any other appropriate Headquarters offices).
89-1.051 Other DOE publications.
89-1.051-1 Procurement circulars, handbooks, and acquisition letters,
Policies, procedures, and information concerned primarily with procurement may be published in DOE procurement circulars, handbooks, and acquisition letters generally under the following circumstances:
(a) Procurement Circulars - To provide coverage on an interim basis, pending subsequent incorporation in this regulation;
(b) Procurement Handbooks - To provide extensive treatment of a subject that is not suitable for inclusion in this regulation;
(c) Acquisition Letters—to provide guidance to DOE personnel on internal procedures which are not suitable for publication in this regulation.
89-1.051-2 Procurement Circulars (PC).
(a) In accordance with the authority in 89-1.051-1 above, a Procurement Circular, supplementary to this regulation, shall be published as often as may be necessary or advisable for distribution to all recipients of this regulation. Material to be published in each circular shall first be approved by the Senior Procurement Official, Headquarters, with appropriate concurrences from other officials (e.g., Counsel, and any other appropriate Headquarters offices).
(b) PCs will be identified by the prefix letter "PC” followed by the last two digits of the calendar year in which issued and will be numbered consecutively. For example, the first PC issued in calendar year 1979 will be identified as PC 79-1.
89-1.051-3 Procurement Handbooks (PH).
(a) In accordance with the authority in 89-1.051-1 above, the Senior Procurement Official, Headquarters, with appropriate concurrences from other officials (e.g., Counsel, and any other appropriate Headquarters offices) may publish Procurement Handbooks (PH) from time to time.
(b) Handbooks will be identified by the prefix letter "PH" and will be keyed to the appropriate DOE-PR subpart. For example, a handbook on profit and fee analysis would bear the identity PH 89–3.808.