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(b) A fixed-price contract or contracts, for both architectengineer and construction services on the same construction project, or a cost-type contract for architect-engineer services and a fixed-price contract for construction services on the same construction project. If a firm is to be responsible under such contractual arrangements for both design and construction services, title III architectengineer services shall be performed by another organization selected by ERDA.

(c) A cost-type contract for both architect-engineer and construction services on the same construction project (engineer-constructor contract). If this contractual arrangement is used, the contract shall provide for performance of the title III architect-engineer services by contractor's engineering personnel who are not responsible to the contractor's construction personnel, or the title III services shall be performed by another organization selected by ERDA. $9-50.109-3 Protection and private use of information

and data by contractors.

(a) The contractor's obligations for protection of information and data received from ERDA and other contractors or subcontractors, and for the contractor's private use of contract data first produced in the performance of the contract, are set forth in subparagraph (b)(2) of each Rights in Technical Data clause in Subpart 9-9.2 This subparagraph provides that the contractor may, subject to patent, security or other provisions of the contract, use for its private purposes contract data it first produces in the performance of the contract provided that the contractor has met its data requirements (e.g., delivery of data in the form of progress or status reports specified to be delivered) as of the date of the private use of such data. It is not necessary that a "Final Report" be submitted in order to privately use data if all required progress and interim reports and other technical data then due have been delivered. Paragraph (b)(2) further provides that technical or other data received by the contractor in the performance of the contract must be held in confidence by the contractor in accordance with restrictions accompanying the data.

(b) Information which is reported to ERDA by ERDA contractors will normally be disseminated by ERDA to others.

(c) Employees of contractors operating ERDA facilities may not be used to assist in the preparation of a proposal or bid for the performance of private commercial services similar or related to those being performed under the ERDA contract unless such employee has been separated, with ERDA approval, from performance of work under the ERDA contract for such period as the head of the procuring activity or designee shall direct consistent with the purpose of this section.

(d) Contractors operating ERDA facilities, and performing services, as a part of their contract work, for other Government agencies or private organizations, should not be permitted to utilize information which is furnished by such customers, for their own private activities, unless it is generally available to others, or unless the customer authorizes such use.

Subpart 9-50.2 Mistakes in Subcontracting

$9-50.2001 Procedures for handling mistakes under operating

and on-site service contractor procurement.

(a) Heads of procuring activities may authorize the withdrawal of bids or the correction of mistakes in bids submitted to, and contracts awarded by contractors in accordance with this section.

(1) Contractors may permit the withdrawal of bids upon a showing of clear convincing evidence of the alleged mistake.

(2) Contractors may correct obvious clerical errors in bids disclosed prior to award, regardless of amount.

(3) Except

as provided in paragraph (4) of this section, contractors may correct other mistakes in bids and contracts as provided in this section.

(4) The Head of the procuring activity's approval shall be required for:

(i) Any corrections of mistakes which would cause the bid or contract price (a) to exceed that of the second low bid, or (b) to displace one or more lower acceptable bids;

(ii) Any corrections of mistakes in bids, other than obvious clerical errors, in procurement actions which require ERDA approval;

(iii) Any correction of mistakes in contracts disclosed after award which exceed $10,000; and

(iv) Any rescission of a contract.

(b) Corrections of mistakes are authorized under paragraph (a)(3) and (4) of this section when:

(1) There is clear and convincing evidence to support both the assertion of a mistake and the amount thereof;

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(3) The mistake is of such a nature that correction thereof is justified by considerations of fair dealing; and

(4) The mistake is of the type that would be corrected under the contractor's private procurement practices, or with respect to mistakes in bids in excess of $10,000, or which otherwise require approval of the Head of the procuring activity, a determination is made that relief would be granted under applicable Federal law.

(c) The authority of this section may not be used to make a bid responsive.

(d) Where rescission is an appropriate remedy, the Head of the procuring activity may authorize a modification in a specific amount, or approve revisions in other terms and conditions, in lieu of rescission.

(e) Where a contract is executed or work is continued after assertion of a mistake, the alleged mistake may be considered on its merits as of the time it was asserted, provided the contract was executed or the work continued pursuant to an understanding that such action did not constitute a waiver of any rights.

(f) Corrections of mistakes or other remedial actions taken pursuant to this section shall be documented by a written statement setting forth the circumstances and basis for such action and shall be made a part of the procurement file.

(g) When correction of mistakes or other relief cannot be granted under the criteria of this section, the Head of the procuring activity may deny the request or forward the file to the Senior Procurement Official, Headquarters, with his recommendation for action.

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This subpart contains policies and procedures which apply to operating, other onsite service contracts.

$9-50.301 Types of contracts.

The contract type used for operating or other onsite contract effort may be of any type which will promote the best interests of the Government.

$9-50.302 Subcontracting policies and procedures.

$9-50.302-1 General.

Procurement activities of operating and other onsite contractors are governed by contract provisions. Federal Procurement Regulations generally are not directly applicable. There are, however, requirements of certain Federal laws, executive orders, and regulations, including Federal Procurement Regulations, which pertain to procurements by these contractors. These requirements, together with implementing ERDA procurement Regulations which apply to contractor procurement, are identified in this section.

$9-50.302–2 Responsibility of contracting officers.

Contracting officers are responsible for assuring that procurement by operating and other onsite contractors conforms to contract requirements and provides effective and timely support to agency programs. In carrying out this responsibility, contracting officers: (1) assure that contracts include those provisions required by law or regulations, and such other provisions as are appropriate to implement ERDA policies and requirements; (2) review contractor procurement systems (including policies) as required by Part 9-23 and in accordance with the provisions of their contracts; (3) review individual procurement actions of certain types or above stated dollar levels; and (4) make periodic appraisals of the contractor's management of the procurement function in accordance with criteria established by the senior procurement official, Headquarters.

$9-50.302-3 Policies.

The following policies apply to contractor procurement. Within these policies it is expected that procurement systems and methods will vary according to the types and kinds of procurement to be made, the needs of the particular programs, and the experience, methods, and practices of the particular contractor.

(a) Procurement systems and methods used for ERDA contract work should be well defined, consistently applied, and follow good business practices appropriate for the requirement and amount of procurement involved.

(b) Procurement should be effected in the manner most advantageous to the Government--price, quality, and other factors considered. In order to assure this objective and the award of business on an impartial basis, procurement (from other than Government sources) shall be effected by methods calculated to assure such full and free competition as is consistent with securing the required supplies and

services. Generally, procurement actions are carried out through one of the following methods :

(1) Competitive offers or quotations and award. The competitive offer or quotation and award method of procurement, which normally assures the greatest degree of full and free competition, generally involves the following basic steps and objectives:

(i) Preparation of a solicitation document setting forth contract terms and conditions and describing the requirement clearly, accurately, and completely, avoiding unnecessarily restrictive specifications or requirements.

(ii) Publicizing such solicitations by distribution to a reasonable number of prospective offerors and by such other means as may be appropriate, in sufficient time to permit the preparation and submission of offers before the time set for receipt of offers. This time shall be uniform for all.

(iii) Handling solicitations in a manner which provides fair and equal treatment to all prospective contractors.

(iv) Making an award to the prospective contractor whose offer, in response to the solicitation, will be most advantageous to the Government, price and other factors considered. However, if upon evaluation it is determined to be in the best interests of the Government to enter into negotiations with prospective contractors before award, such negotations should be conducted in accordance with (2) below with respect to according fair and equal treatment to prospective contractors.

(2) Negotiation. Procurement by this method normally should be conducted by competitive negotiations through the solicitation and evaluation of proposals, from an adequate number of qualified sources to assure effective competition, consistent with securing the required supplies or services. Negotiated procurement involves advance planning, description of procurement and delivery requirements, and consideration of the effect these requirements may have on prices and competition. Requests for proposals should describe the property or services required as completely as possible; allow sufficient time for the submission of proposals; and establish a closing date for receipt of proposals. Proposals should be handled in a manner which provides fair and equal treatment to all prospective offerors. Selection of offerors for negotiation and award shall be consistent with FPR 1-3.805 and ERDA-PR 99-3.805.

(c) Price or cost analyses shall be performed in accordance with the requirements of FPR 1-3.807 and ERDA-PR $9-3.807, and FPR 1-3.809

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