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rules contained in Appendix A to the (Summary of Pertinent Charter ProviArmed Services Procurement Regula- sions) delete in its entirety the third tions, Title 32 Code of Federal Regula- paragraph pertaining to the requiretions 30.1, which are hereby adopted ment of the Secretary of Defense or as amended.
the Secretary of a Military Depart
ment to personally render a decision 8 19-60.402 Amendment to rules for on a matter in dispute based on findAgency application.
ings and recommendations submitted
by the ASBCA. The following amendments to Part
(c) Preliminary procedures, para2–Rules of the ASBCA shall be effec
graph 3 (Forwarding Appeals)-after tive whenever such rules pertain to ap
the word “Board" at the end of the peals arising from Agency contracts.
first sentence, insert a comma in lieu (a) Preface to rules of the Armed of the period and add immediately Services Board of Contract Appeals thereafter the words “through the (Summary of Pertinent Charter Provi. Office of the General Counsel, Intersions) delete all references to the national Communication Agency.”. Secretary of Defense and the Secretar (d) Preliminary procedures, paraies of the Military Departments and graph 4 (Duties of the Contracting Ofsubstitute therefor the words “Direc ficer)-delete the words "and to the tor, International Communication Government Trial Attorney” and add Agency.”
in lieu thereof the words “through the (b) Preface to rules of the Armed Office of the General Counsel, InterServices Board of Contract Appeals national Communication Agency.”
where its judgment may be biased. or
where it may have an unfair competiSubpart 20–1.54—Contractor Organizational
(c) The conflict of interest rule conConflicts of Interest
tained in this subpart applies to conSec.
tractors and offerors only. Individuals 20-1.5401 Scope and policy.
or firms who have other relationships 20-1.5402 Definitions.
with NRC (e.g., parties to a licensing 20-1.5403 Criteria for recognizing contrac
proceeding) are not covered by this tor organizational conflicts of interest.
regulation. This rule does not apply to 20-1.5404 Representation.
the acquisition of consulting services 20-1.5405 Contract clauses. 20-1.5405-1 General contract clause.
through the personnel appointment 20-1.5405-2 Special contract provisions. process, NRC agreements with other 20-1.5406 Evaluation, findings, and con government agencies, international ortract award.
ganizations, or state, local or foreign 20-1.5407 Conflicts identified after award.
governments; separate procedures for 20-1.5408–20-1.509 (Reserved)
avoiding conflicts of interest will be 20-1.5410 Subcontractors.
employed in such agreements, as ap20-1.5411 Waiver. 20-1.5412 Remedies.
propriate. AUTHORITY: Sec. 8, Pub. L. 95-601, adding $ 20–1.5402 Definitions. sec. 170A to Pub. L. 83-703, 68 Stat. 919, as
(a) “Organizational conflicts of inamended (42 U.S.C. ch. 14).
terest” means that a relationship SOURCE: 44 FR 19198, Apr. 2, 1979, unless exists whereby a contractor or prosotherwise noted.
pective contractor has present or
planned interests related to the work 8 20–1.5401 Scope and policy.
to be performed under an NRC con(a) It is the policy of the U.S. Nucle- tract which: (1) May diminish its caar Regulatory Commission (NRC) to pacity to give impartial, technically avoid, eliminate or neutralize contrac- sound, objective assistance and advice tor organizational conflicts of interest. or may otherwise result in a biased The NRC achieves this objective by re- work product, or (2) may result in its quiring all prospective contractors to being given an unfair competitive adsubmit information describing rela vantage. tionships, if any, with organizations or (b) “Research” means any scientific persons (including those regulated by or technical work involving theoretical NRC) which may give rise to actual or analysis, exploration, or experimentapotential conflicts of interest in the tion. event of contract award.
(c) “Evaluation activities” means (b) Contractor conflict of interest any effort involving the appraisal of a determinations cannot be made auto technology, process, product, or policy. matically or routinely; the application (d) “Technical consulting and manof sound judgment on virtually a case- agement support services" means inby-case basis is necessary if the policy ternal assistance to a component of is to be applied so as to satisfy the the NRC in the formulation or adminoverall public interest. It is not possi- istration of its programs, projects, or ble to prescribe in advance a specific policies which normally require the method or set of criteria which would contractor to be given access to inforserve to identify and resolve all of the mation which has not been made contractor conflict of interest situa available to the public or proprietary tions which might arise; however, ex- information. Such services typically amples are provided in these regula include assistance in the preparation tions to guide application of the of program plans; and preparation of policy. NRC contracting and program preliminary designs, specifications, or officials must be alert to other situa- statements of work. tions which may warrant application (e) “Contract” means any contract, of this policy guidance. The ultimate agreement, or other arrangement with test is: Might the contractor, if award- the NRC except as provided in § 20ed the contract, be placed in a position 1.5401(c).
(f) “Contractor" means any person, given an unfair competitive advantage firm, unincorporated association, joint based on the performance of the conventure, co-sponsor, partnership, cor tract? The ultimate determination by poration, affiliates thereof, or their NRC as to whether organizational consuccessors in interest, including their flicts of interest exist will be made in chief executives, directors, key person light of common sense and good businel (identified in the contract), pro- ness judgment based upon the releposed consultants or subcontractors, vant facts disclosed and the work to be which is a party to a contract with the performed. While it is difficult to idenNRC.
tify and to prescribe in advance a spe(g) “Affiliates” means business con- cific method for avoiding all of the cerns which are affiliates of each various situations or relationships other when either directly or indirect, which might involve potential organily one concern or individual controls Zational conflicts of interest, NRC peror has the power to control another, sonnel will pay particular attention to or when a third party controls or has proposed contractual requirements the power to control both (41 CFR 1- which call for the rendering of advice, 1.606-1(e)).
consultation or evaluation activities, (h) “Subcontractor" means any sub- or similar activities that lay direct contractor of any tier which performs groundwork for the NRC's decisions work under a contract with the NRC on regulatory activities, future proexcept subcontracts for supplies and curements, and research programs. subcontracts in amounts of $10,000 or (b) Situations or relationships which less.
may give rise to organizational con(i) “Prospective contractor” or “of- flicts of interest. (1) The offeror or feror” means any person, firm, unin contractor shall disclose information corporated association, joint venture, concerning relationships which may partnership, corporation, or affiliates give rise to organizational conflicts of thereof, including its chief executive, interest under the following circumdirectors, key personnel (identified in stances: the proposal), proposed consultants, or (i) Where the offeror or contractor subcontractors, submitting a bid or provides advice and recommendations proposal, solicited or unsolicited, to to the NRC in a technical area in the NRC to obtain a contract.
which it is also providing consulting (j) “Potential conflict of interest” assistance in the same area to any ormeans that a factual situation exists ganization regulated by the NRC. that suggests (indicates that an (ii) Where the offeror or contractor actual conflict of interest may arise provides advice to the NRC on the from award of a proposed contract. same or similar matter in which it is The term “potential conflict of inter also providing assistance to any orgaest” is used to signify those situations nization regulated by the NRC. which merit investigation prior to con (iii) Where the offeror or contractor tract award in order to ascertain evaluates its own products or services, whether award would give rise to an or the products or services of another actual conflict or which must be re entity where the offeror or contractor ported to the contracting officer for has been substantially involved in investigation if they arise during con- their development or marketing. tract performance.
(iv) Where the award of a contract
would otherwise result in placing the § 20-1.5403 Criteria for recognizing con
offeror or contractor in a conflicting tractor organizational conflicts of in
role in which its judgment may be terest.
biased in relation to its work for the (a) General. Two questions will be NRC or may otherwise result in an asked in determining whether actual unfair competitive advantage for the or potential organizational conflicts of offeror or contractor. interest exist: (1) Are there conflicting (2) The contracting officer may reroles which might bias a contractor's quest specific information from an ofjudgment in relation to its work for feror or contractor or may require spethe NRC? (2) May the contractor be cial contract provisions such as pro