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vided in 20-1.5405-2 in the following nent which are unique to one type of circumstances:
advanced reactor. As is the case with (i) Where the offeror or contractor other technically qualified companies prepares specifications which are to be responding to the RFP, the ABC Corp. used in competitive procurements of is performing various projects for sevproducts or services covered by such eral different utility clients. None of specifications.
the ABC Corp. projects have any rela(ii) Where the offeror or contractor tionship to the work called for in the prepares plans for specific approaches RFP. Based on the NRC evaluation, or methodologies that are to be incor, the ABC Corp. is considered to be the porated into competitive procurements best qualified company to perform the using such approaches or methodolo- work outlined in the RFP. gies.
Guidance. An NRC contract normal(iii) Where the offeror or contractor ly could be awarded to the ABC Corp. is granted access to information not because no conflict of interest exists available to the public concerning which would motivate bias with reNRC plans, policies, or programs spect to the work. An appropriate which could form the basis for a later clause would be included in the conprocurement action.
tract to preclude the ABC Corp. from (iv) Where the offeror or contractor subsequently contracting for work is granted access to proprietary infor during the performance of the NRC mation of its competitors.
contract with the private sector which (v) Where the award of a contract could create a conflict. For example, might otherwise result in placing the ABC Corp. would be precluded from offeror or contractor in a conflicting the performance of similar work for role in which its judgment may be the company developing the advanced biased in relation to its work for the reactor mentioned in the example. NRC or may otherwise result in an (3) Example. As a result of operating unfair competitive advantage for the problems in a certain type of commerofferor or contractor.
cial nuclear facility, it is imperative (c) Policy application guidance. The that NRC secure specific data on varfollowing examples are illustrative ious operational aspects of that type only and are not intended to identify of plant so as to assure adequate and resolve all contractor organiza- safety protection of the public. Only tional conflict of interest situations. one manufacturer has extensive expe
(1) Example. The XYZ Corp., in re- rience with that type of plant. Consesponse to a request for proposal quently, that company is the only one (RFP), proposes to undertake certain with whom NRC can contract which analyses of a reactor component as can develop and conduct the testing called for in the RFP. The XYZ Corp. programs required to obtain the data is one of several companies considered in reasonable time. That company has to be technically well qualified. In re- a definite interest in any NRC deci. sponse to the inquiry in the RFP, the sions that might result from the data XYZ Corp. advises that it is currently produced because those decisions performing similar analyses for the re- affect the reactor's design and thus actor manufacturer.
the company's costs. Guidance. An NRC contract for that Guidance. This situation would particular work normally would not be place the manufacturer in a role in awarded to the XYZ Corp. because it which its judgment could be biased in would be placed in a position in which relationship to its work for NRC. its judgment could be biased in rela- Since the nature of the work required tionship to its work for NRC. Since is vitally important in terms of NRC'S there are other well-qualified compa- responsibilities and no reasonable alnies available, there would be no ternative exists, a waiver of the policy reason for considering a waiver of the may be warranted. Any such waiver policy.
shall be fully documented and coordi(2) Example. The ABC Corp., in re- nated in accordance with the waiver sponse to a RFP, proposes to perform provisions of this policy with particucertain analyses of a reactor compo- lar attention to the establishment of
protective mechanisms to guard (d) Other considerations. (1) The against bias.
fact that the NRC can identify and (4) Example. The ABC Co. submits a later avoid, eliminate, or neutralize proposal for a new system for evaluat- any potential organizational conflicts ing a specific reactor component's per- arising from the performance of a conformance for the purpose of develop- tract is not relevant to a determinaing standards that are important to tion of the existence of such conflicts the NRC program. The ABC Co. has prior to the award of a contract. advised NRC that it intends to sell the (2) It is not relevant that the connew system to industry once its practi
tractor has the professional reputation cability has been demonstrated. Other of being able to resist temptations companies in this business are using
which arise from organizational conolder systems for evaluation of the
flicts of interest, or that a follow-on specific reactor component.
procurement is not involved, or that a Guidance. A contract could be
contract is awarded on a competitive awarded to the ABC Co. provided that
or a sole source basis. the contract stipulates that no information produced under the contract 8 20-1.5404 Representation. will be used in the contractor's private activities unless such information has
(a) The following procedures are debeen reported to NRC. Information
signed to assist the NRC contracting which is reported to NRC by contrac
officer in determining whether situators will normally be disseminated by
tions or relationships exist which may NRC to others so as to preclude an
constitute organizational conflicts of unfair competitive advantage that
interest with respect to a particular ofmight otherwise accrue. When NRC
feror or contractor. furnishes information to the contrac
(b) Representation procedure. The tor for the performance of contract
following organizational conflicts of work, it shall not be used in the con
interest representation provision shall tractor's private activities unless such
be included in all solicitations and uninformation is generally available to solicited proposals for: (1) Evaluation others. Further, the contract will stip- services or activities; (2) technical conulate that the contractor will inform sulting and management support serythe NRC contracting officer of all situ ices; (3) research; and (4) other conations in which the information devel tractual situations where special orgaoped under the contract is proposed to
nizational conflicts of interest provibe used.
sions are noted in the solicitation and (5) Example. The ABC Corp., in re- would be included in the resulting consponse to a RFP proposes to assemble tract. This representation requirement à map showing certain seismological shall also apply to all modifications features of the Appalachian fold belt. for additional effort under the conIn accordance with the representation tract except those issued under the in the RFP and § 20-1.5403(b)(1)(i), “changes” clause. Where, however, a ABC Corp. informs the NRC that it is statement of the type required by the presently doing seismological studies organizational conflicts of interest repfor several utilities in the Eastern resentation provision has previously United States but none of the sites are been submitted with regard to the conwithin the geographic area contem- tract being modified, only an updating plated by the NRC study.
of such statement shall be required. Guidance. The contracting officer would normally conclude that award ORGANIZATIONAL CONFLICTS OF of a contract would not place ABC
INTEREST REPRESENTATION Corp. in a conflicting role where its judgment might be biased. The work
I represent to the best of my knowledge
and belief that: for others clause of $ 20-1.5405-1(c)
The award to ------ of a contract or would preclude ABC Corp. from ac
the modification of an existing contract cepting work during the term of the does ( ) or does not ( ) involve situations NRC contract which could create a or relationships of the type set forth in 41 conflict of interest.
CFR § 20-1.5403(b)(1).
(c) Instructions to offerors. The fol. the detriment of the competitive poslowing shall be included in all NRC SO- ture of the other offerors, the proposlicitations: (1) If the representation as al must be rejected as unacceptable. completed indicates that situations or (e) The offeror's failure to execute relationships of the type set forth in the representation required by para41 CFR 20-1.5403(b)(1) are involved, graph (b) of this section with respect or the contracting officer otherwise to invitation for bids will be considdetermines that potential organiza ered to be a minor informality, and tional conflicts exist, the offeror shall the offeror will be permitted to correct provide a statement in writing which the omission. describes in a concise manner all relevant facts bearing on his representa § 20-1.5405 Contract clauses. tion to the contracting officer. If the contracting officer determines that or- $ 20–1.5405–1 General contract clause. ganizational conflicts exist, the follow. All contracts of the types set forth ing actions may be taken: (i) Impose in § 20-1.5404(b) shall include the folappropriate conditions which avoid lowing clauses: such conflicts, (ii) disqualify the of
(a) Purpose. The primary purpose of this feror, or (iii) determine that it is oth
clause is to aid in ensuring that the contracerwise in the best interest of the
tor: (1) Is not placed in a conflicting role United States to seek award of the because of current or planned interest (ficontract under the waiver provisions nancial, contractual, organizational, or othof § 20-1.5411.
erwise) which relate to the work under this
contract, and (2) does not obtain an unfair (2) The refusal to provide the repre- competitive advantage over other parties by sentation required by $ 20-1.5404(b) or
virtue of its performance of this contract. upon request of the contracting officer (b) Scope. The restrictions described herein the facts required by $ 20-1.5404(c),
shall apply to performance or participation
by the contractor as defined in 41 CFR shall result in disqualification of the
$ 20–1.5402(f) in the activities covered by this offeror for award. The nondisclosure
clause. or misrepresentation of any relevant
(c) Work for others. Notwithstanding any interest may also result in the dis
other provision of this contract, during the qualification of the offeror for award;
term of this contract, the contractor agrees or if such nondisclosure or misrepre to forgo entering into consulting or other sentation is discovered after award, contractual arrangements with any firm or the resulting contract may be termi organization, the result of which may give nated. The offeror may also be dis rise to a conflict of interest with respect to qualified from subsequent related
the work being performed under this conNRC contracts and be subject to such
tract. The contractor shall ensure that all
employees who are employed full time under other remedial actions provided by law
this contract and employees designated as or the resulting contract.
key personnel, if any, under this contract
abide by the provision of this clause. If the (d) The offeror may, because of contractor believes with respect to itself or actual or potential organizational con any such employee that any proposed conflicts of interest, propose to exclude sultant or other contractual arrangement specific kinds of work from the state with any firm or organization may involve a
potential conflict of interest, the contractor ments of work contained in a RFP unless the RFP specifically prohibits
shall obtain the written approval of the con
tracting officer prior to execution of such such exclusion. Any such proposed ex
contractual arrangement. clusion by an offeror will be considered by the NRC in the evaluation of
(d) Disclosure after award. (1) The contrac
tor warrants that to the best of its knowledge proposals. If the NRC considers the
and belief and except as otherwise set forth proposed excluded work to be an es
in this contract, it does not have any organi. sential or integral part of the required Zational conflicts of interest, as defined in 41 work and its exclusion would work to CFR 20–1.5402(a).
above proscriptions or for intentional nondisclosure or misrepresentation of any relevant interest required to be disclosed concerning this contract or for such erroneous representations as necessarily imply bad faith, the government may terminate the contract for default, disqualify the contractor from subsequent contractual efforts, and pursue other remedies as may be permitted by law or this contract.
(h) Waiver. A request for waiver under this clause shall be directed in writing through the contracting officer to the Executive Director for Operations (EDO) in accordance with the procedures outlined in $ 20-1.5411.
20-1.5405-2 Special contract provisions.
(2) The contractor agrees that if after award it discovers organizational conflicts of interest with respect to this contract, it shall make an immediate and full disclosure in writing to the contracting officer. This statement shall include a description of the action which the contractor has taken or proposes to take to avoid or mitigate such conflicts. The NRC may, however, terminate the contract for convenience if it deems such termi. nation to be in the best interests of the government.
(e) Access to and use of information. (1) If the contractor in the performance of this contract obtains access to information, such as NRC plans, policies, reports, studies, financial plans, internal data protected by the Privacy Act of 1974 (Pub. L. 93-579), or data which has not been released to the public, the contractor agrees not to: (i) Use such information for any private purpose until the information has been released to the public; (ii) compete for work for the Commission based on such information for a period of six (6) months after either the completion of this contract or the release of such information to the public, whichever is first, (ii) submit an unsolicited proposal to the government based on such information until one year after the release of such information to the public, or (iv) release the information without prior written approval by the contracting officer unless such information has previously been released to the public by the NRC.
(2) In addition, the contractor agrees that to the extent it receives or is given access to proprietary data, data protected by the Privacy Act of 1974 (Pub. L. 93-579), or other confidential or privileged technical, business, or financial information under this contract, the contractor shall treat such information in accordance with restrictions placed on use of the information.
(a) If it is determined from the nature of the proposed contract that organizational conflicts of interest exist, the contracting officer may determine that such conflict can be avoided or after obtaining a waiver in accordance with $ 20-1.5411, neutralized through the use of an appropriate special contract provision. If appropriate, the offeror may negotiate the terms and conditions of these clauses, including the extent and time period of any such restriction. These provisions include but are not limited to:
(1) Hardware exclusion clauses which prohibit the acceptance of production contracts following a related nonproduction contract previously performed by the contractor;
(2) Software exclusion clauses;
(3) Clauses which require the contractor (and certain of his key personnel) to avoid certain organizational conflicts of interest; and
(4) Clauses which provide for protection of confidential data and guard against its unauthorized use.
(b) The following additional contract clause may be included as section (1) in the clause set forth in § 20-1.5405-1 when it is determined that award of a follow-on contract would constitute an organizational conflict of interest.
(1) Follow-on effort. (1) The contractor shall be ineligible to participate in NRC contracts, subcontracts, or proposals therefor
(3) The contractor shall have, subject to patent and security provisions of this contract, the right to use technical data it produces under this contract for private purposes provided that all requirements of this contract have been met.
(f) Subcontracts. Except as provided in 41 CFR 20–1.5402(h), the contractor shall in clude this clause, including this paragraph, in subcontracts of any tier. The terms "contract," "contractor,” and “contracting offi. cer,” shall be appropriately modified to preserve the government's rights.
(g) Remedies. For breach of any of the
(solicited or unsolicited) which stem directly such conflicts do, in fact, exist and from the contractor's performance of work that it would not be in the best interunder this contract. Furthermore, unless so ests of the government to terminate directed in writing by the contracting officer, the contract as provided in the clauses the contractor shall not perform any techni.
required by $ 20-1.5405, the contractcal consulting or management support serv
ing officer will take every reasonable ices work or evaluation activities under this contract on any of its products or services or
action to avoid, eliminate, or, after obthe products or services of another firm if
taining a waiver in accordance with the contractor has been substantially in $ 20-1.5411, neutralize the effects of volved in the development or marketing of the identified conflict. such products or services.
(2) If the contractor under this contract $ 20–1.5408–20–1.5409 (Reserved] prepares a complete or essentially complete statement of work or specifications, the contractor shall be ineligible to perform or par
$ 20–1.5410 Subcontracts. ticipate in the initial contractual effort The contracting officer shall require which is based on such statement of work or
offerors and contractors to submit a specifications. The contractor shall not in
representation statement in accordcorporate its products or services in such
ance with § 20-1.5404(b) from subconstatement of work or specifications unless so directed in writing by the contracting officer,
tractors and consultants. The conin which case the restriction in this subpara tracting officer shall require the congraph shall not apply.
tractor to include contract clauses in (3) Nothing in this paragraph shall pre accordance with § 20-1.5405 in consulclude the contractor from offering or selling tant agreements or subcontracts inits standard commercial items to the govern
volving performance of work under a ment.
prime contract covered by this subsec$ 20–1.5406 Evaluation, findings, and contract award.
$ 20–1.5411 Waiver. The contracting officer will evaluate
(a) In the first instance, determinaall relevant facts submitted by an of
tion with respect to the need to seek a feror pursuant to the representation
waiver for specific contract awards requirements of $ 20-1.5404(b) and
shall be made by the contracting offiother relevant information. After eval
cer with the advice and concurrence of uating this information against the
the program office director and the criteria of $ 20-1.5403, a finding will be
Office of Executive Legal Director. made by the contracting officer
Upon the recommendation of the conwhether organizational conflicts of in
tracting officer, and after consultation terest exist with respect to a particu
with the Office of the General Counlar offeror. If it has been determined
sel, the EDO may waive the policy in that conflicts of interest exist, then
specific cases if he determines that it the contracting officer shall either:
is in the best interest of the United (a) Disqualify the offeror from States to do so. award,
(b) Such action shall be strictly lim(b) Avoid or eliminate such conflicts
ited to those situations in which: (1) by appropriate measures; or
The work to be performed under con(c) Award the contract under the
tract is vital to the NRC program; (2) waiver provision of $ 20-1.5411.
the work cannot be satisfactorily per
formed except by a contractor whose 8 20–1.5407 Conflicts identified after
interests give rise to a question of conaward.
flict of interest; and (3) contractual If potential organizational conflicts and/or technical review and superviof interest are identified after award sion methods can be employed by with respect to a particular contractor, NRC to neutralize the conflict. For the contracting office determines that any such waivers, the justification and