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within five working days of receipt of 81705.10 Foes. the request. The Privacy Act Officer

A fee will not be charged for search will endeavor to provide a letter to the

or review of requested records, or for requester within thirty working days

correction of records. When a request is stating whether or not the request for

made for copies of records, a copying correction has been granted or denied.

fee will be charged at the same rate esIf the Privacy Act Officer decides to

tablished for FOIA requests. See 10 CFR deny any portion of the correction re

1703.107. However, the first 100 pages of quest, the reasons for the denial will be

copying will be free of charge. provided to the requester.

81705.11 Exemptions. 8 1706.08 Appeals from correction de

Pursuant to 5 U.S.C. 552a(k), the nials.

Board has determined that system of (a) When amendment of records has records DNFSB3, “Drug Testing Probeen denied by the Privacy Act Officer, gram Records,” is partially exempt the requester may file an appeal in from 5 U.S.C. 552(a)(c)(3), (d), (e)(1), writing. This appeal should be directed (e)(4)(G), (H), (I), and (1). The exempto The Chairman, Defense Nuclear Fa- tion pertains to portions of these cilities Safety Board, 625 Indiana Ave records which would identify persons nue, NW., Suite 700, Washington, DC supplying information on drug abuse 20004. The appeal letter must (1) specify by Board employees or contractors. the records subject to the appeal, and (2) state why the denial of amendment

PART 1706-ORGANIZATIONAL by the Privacy Act Officer is erro

AND CONSULTANT CONFLICTS neous. The Chairman or his designee will respond to such appeals within

OF INTERESTS thirty working days (subject to exten

Sec. sion by the Chairman for good cause)

1706.1 Scope; statement of policy. after the appeal letter has been re

1706.2 Definitions. ceived in the Board's offices.

1706.3 Applicability. (b) The appeal determination, if ad 1706.4 Head of the contracting activity. verse to the requester in any respect, 1706.5 General rules. will: (1) Explain the basis for denying

1706.6 Solicitation provisions. amendment of the specified records, (2)

1706.7 Procedures.

1706.8 Waiver. inform the requester that he or she

1706.9 Examples. may file a concise statement setting

1706.10 Remedies. forth reasons for disagreeing with the 1706.11 Organizational conflicts of interest Chairman's determination, and (3) in certificate-Advisory or assistance seryform the requester of his or her right ices. to pursue a judicial remedy under 5 AUTHORITY: 42 U.S.C. 2286b(c). U.S.C. 552a(g)(1)(A).

SOURCE: 57 FR 44662, Sept. 29, 1992, unless 81705.09 Disclosure of records to third

otherwise noted. parties.

81706.1 Scope; statement of policy. Records subject to the Privacy Act

(a) Scope. This part sets forth the that are requested by any person other

guidelines, requirements, and procethan the individual to whom they per dures the Defense Nuclear Facilities tain will not be made available except Safety Board will follow in determinin the following circumstances:

ing whether a contractor or offeror has (a) Their release is required under

an organizational or consultant conthe Freedom of Information Act in ac

flict of interest (OCI) and in avoiding, cordance with the Board's FOIA regu- neutralizing, or mitigating OCIS. lations, 10 CFR part 1703;

(b) Policy. It is the policy of the (b) Prior consent for disclosure is ob- Board to identify and then avoid or tained in writing from the individual mitigate organizational and consultant to whom the records pertain; or

conflicts of interest. Normally, the (c) Release is authorized by 5 U.S.C. Board will not award contracts to 562a(b) (1) or (3) through (11).

offerors who have OCIS and will termi

nate contracts where OCIS are identi- ants or subcontractors to such party. fied following contract award. In ex- The term "contractor" shall also inceptional circumstances, the Board re- clude consultants engaged directly by serves the right to waive conflicts of the Board through the use of a coninterest if it determines that such ac- tract. tion is in the best interests of the Gov- Defense nuclear facility means any ernment, pursuant to $1706.8, and to United States Department of Energy take such mitigating measures as it (DOE) defense nuclear facility, as dedeems appropriate pursuant to such fined in 42 U.S.C. 22868, subject to the section.

Board's oversight. $1706.2 Definitions.

Evaluation activities means activities

that involve evaluation of some aspect Advisory or assistance services means

of defense nuclear facilities. services acquired by contract to advise

Mitigating means, with respect to an or assist the Board, whether with re

organizational or consultant conflict of spect to its internal functions or its

interest, reducing or counteracting the oversight of defense nuclear facilities,

effects of such a conflict of interest on or otherwise to support or improve pol

the Board, but without eliminating or icy development or decisionmaking by

avoiding the conflict of interest. the Board, or management or adminis

National Laboratories means laboratration of the Board, or to support or

tories operated by educational instituimprove the operation of the Board's

tions or business entities under manmanagement systems. Such services may take the form of the provision of

agement and operating contracts with

DOE. information, advice, reports, opinions, alternatives, conclusions,

Offeror means any person, firm, unin

recommendations, training, direct assist

corporated association, joint venture, ance, or performance of site visits,

partnership, corporation, or other entechnical reviews, investigation of

tity, or any group of one or more of the health and safety practices or other ap

foregoing, submitting a bid or proposal propriate services.

to the Board, solicited, unsolicited or Affiliates means associated business

otherwise invited by the Board, to obconcerns or individuals if, directly or

tain a contract, and the affiliates and indirectly, either one controls or can

successors in interest of such a bidder control the other or a third party con

or proposer. The term "offeror” also trols or can control both.

includes the chief executive and direcBoard means, as the context requires,

tors of such a bidder or proposer, the the Defense Nuclear Facilities Safety

key personnel of a bidder or proposer Board, its Chairman, or any other offi- identified in the bid or proposal, and cer of the Defense Nuclear Facilities proposed consultants or subcontractors Safety Board to whom the appropriate

to such bidder or proposer. delegation has been made under 42 Organizational or consultant conflict of U.S.C. 2286(c)(3).

interest means that, because of other Contract means any contract, agree- past, present, or future planned activiment, or other arrangement with the ties or relationships, an offeror or conBoard, except as provided in $1706.3. tractor is unable, or potentially un

Contractor means any person, firm, able, to render impartial assistance or unincorporated association, joint ven- advice to the Board, or the objectivity ture, co-sponsor, partnership, corpora- of such offeror or contractor in pertion, or other entity, or any group of forming contract work for the Board is one or more of the foregoing, which is or might be otherwise impaired, or a party to a contract with the Board, such offeror or contractor has or would and the affiliates and successors in in- have an unfair competitive advantage. terest of such party. The term “con- The term “organizational or consulttractor" also includes the chief execu- ant conflict of interest" shall include, tive and directors of a party to a con- but not be limited to, actions or situatract with the Board, the key person- tions that would preclude the award or nel of such party identified in the con- extension of a contract under, or would tract, and current or proposed consult- be prohibited by, $1706.5.

Potential organizational or consultant part does not apply to the acquisition conflict of interest means a factual situ- of services, including, without limitaation that indicates or suggests that tion, consulting services, through the an actual organizational or consultant personnel appointment process or to conflict of interest may exist or arise Board agreements with other federal from award of a proposed contract or government agencies, but shall apply from continuation of an existing con- to Board agreements with the managetract. The term is used to signify those ment and operating contractors (and situations that merit conflicts review subcontractors and consultants thereprior to contract award or that must be to) of the National Laboratories. reported to the contracting officer for (b) Subcontractors and consultants. conflicts review if they arise during The requirements of this part shall contract performance.

also apply to subcontractors and conResearch means any scientific, engi- sultants proposed for, or working on, a neering, or other technical work in- Board contract, in each case where the volving theoretical analysis, explo- amount of the subcontract or consulte ration, or experimentation.

ant agreement under which such subSubcontractor means any subcontrac- contractor or consultant is or will be tor of any tier which performs work working is expected to exceed $10,000, under a prime contract with the Board.

and in each other case where the conTask order contract means & Board tracting officer for the Board deems it contract that contains a broad scope of appropriate to make the requirements work but does not authorize the con- of this part applicable to a subcontractractor to perform specific tasks with- tor or consultant proposed for, or in that broad scope until the contract- working on, a Board contract. The cering officer issues task orders.

tificates or disclosures submitted by Unfair competitive advantage means an

offerors or contractors pursuant to this advantage obtained by an offeror or part shall include certificates or disclocontractor to the Board by virtue of sures from all subcontractors and conthe relationship of the offeror or con

sultants to contractor or offerors in tractor with the Board or access to in

those cases where this part applies by formation not available to other its terms to such subcontractors or offerors or contractors, and recognized

consultants or has been applied to such in appropriate legal precedent as un- persons by the contracting officer. Confair.

tractors and offerors shall assure that In determining the meaning of any

contract clauses giving effect to this provision of this part, unless the con- $1706.3(b), satisfactory to the contracttext indicates otherwise, the singular

ing officer, are included in subincludes the plural; the plural includes contracts and consultant agreements the singular; the present tense includes of any tier involving performance of the future tense; and words of one gen

work under a prime contract covered der include the other gender.

by this part.

(57 FR 44652, Sept. 29, 1992; 58 FR 19684, Mar. $1706.8 Applicability.

12, 1993) (a) General applicability. This part ap plies to contractors and offerors only, $ 1706.4 Head of the contracting activ. except as otherwise herein provided.

ity. This part shall be incorporated by ref- The head of the contracting activity erence and made a part of all Board for the Board shall be the General Mancontracts in excess of the small pur- ager. chases threshold, except as provided in the last sentence of this $1706.3(a). In

$ 1706.5 General rules. addition, if determined appropriate by (a) Award of Contracts. Contracts the contracting officer for the Board, shall generally not be awarded to an this part may be incorporated by ref- offeror: erence and made a part of Board con- (1) For any services where the award tracts below the small purchases would result in the offeror evaluating threshold, except as provided in the products or services it has provided to last sentence of this $1706.3(a). This the Board, is then providing to the Board, or is then offering to provide for tional Laboratories who have expertise the Board;

needed by the Board in the perform(2) For evaluation activities or re- ance of its oversight responsibilities, search related to the Board's oversight provided that prior to each such enof defense nuclear facilities, where the gagement, the Board determines eiaward would result in the offeror eval- ther: uating products or services it has pro- (1) That the nature of work pervided, is then providing, or is then of- formed by such personnel for DOE does fering to provide to DOE or to contrac- not pose actual or potential OCIs with tors or subcontractors for defense nu- respect to the particular work covered clear facilities; or

by the Board contract; or (3) For any other services (the acqui- (2) That such engagement is in the sition of which is otherwise covered by Government's best interests and that a this part), where the Board has deter- waiver should be granted pursuant to mined, pursuant to $1706.7, that an ac- $1706.8. In all cases involving National tual or potential OCI exists and cannot Laboratory personnel, notice of the cirbe avoided, and the Board does not cumstances of the contract, stating the waive that OCI. Paragraphs (a) (1) and rationale for use of the personnel, shall (2) of this section also apply when be published in the FEDERAL REGISTER. award would result in evaluation of (d) Work for others. During the term products or services of another entity of any Board contract, the contractor where the offeror has been, is, or would may not enter into consulting or other be substantially involved in the devel- contractual arrangements with other opment of the product or performance persons or entities, the result of which of the service, or has other substantial could give rise to an OCI with respect involvement regarding the product or to the work being performed under the services.

contract. The prime contractor shall (b) Subsequent related contracts. (1) A ensure that all of its employees, subBoard contractor under a Board con- contractors, and consultants under tract shall normally be ineligible to contract abide by this paragraph. If the participate in Board contracts or sub- contractor has reason to believe that contracts that stem directly from the any proposed arrangement with other contractor's performance of work persons or entities may involve an acunder a previous Board contract, where tual or potential OCI, it shall promptly the Board determines that an OCI inform the Board in writing of all perwould exist because:

tinent facts regarding such proposed (1) The expectation of receiving the arrangement. In the case of task order subsequent contract is likely to dimin- contracts, this paragraph applies, subish the contractor's capacity to give ject to $ 1706.7(c), only to specific ongoimpartial assistance and advice, or oth- ing tasks that the contracting officer erwise result in a biased work product; authorizes the contractor to perform. or

(e) Contractor protection of Board in(ü) An offeror on the subsequent con- formation that is not publicly available. If tract would have an unfair competitive the contractor in the performance of a advantage by virtue of having per- Board contract obtains access to inforformed the first contract.

mation, such as Board plans, policies, (2) If a contractor under a Board con- reports, studies, or financial plans, or tract prepares a complete or essen- internal data protected by the Privacy tially complete statement of work or Act (5 U.S.C. 562a), proprietary inforspecifications in the performance of a mation, or any other data which has contract, the contractor shall be ineli- not been released to the public, the gible to perform or participate in the contractor shall not: initial contractual effort that is based (1) Use such information for any prion such statement of work or specifica- vate purpose until the information has tions. The contractor shall not incor- been released or is otherwise made porate its products or services in such available to the public; statement of work or specifications.

(2) Compete for work for the Board (c) National Laboratory personnel. The based on such information for a period Board may engage personnel of the Na- of six months after either the contract

has been completed or such information has been released or otherwise made available to the public, which ever occurs first, or submit an unsolicited proposal to the Government based on such information until one year after such information is released or otherwise made available to the public, unless a waiver permitting such action has been granted pursuant to $1706.8; or

(3) Release the information without prior written approval of the contracting officer, unless such information has previously been released or otherwise made available to the public by the Board. (57 FR 44662, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993)

$ 1706.6 Solicitation provisions.

(a) Advisory of assistance services. There shall be included in all formal Board solicitations for advisory or assistance services where the contract amount is expected to exceed $25,000 (or the then applicable small purchases threshold), a provision requiring a certificate representing whether award of the contract to the offeror would present actual or potential OCIS. Ap parent successful offerors will be required to submit such certificates, but the Board may also require such a certificate to be submitted in other circumstances, such as:

(1) Where the contracting officer has identified certain offerors who have passed an initial screening and has determined that it is appropriate to request the identified offerors to file the certificate in order to expedite the award process; or

(2) In the case of modifications for additional effort under Board contracts, except those issued under the "changes" clause. If a certificate has been previously submitted with regard to the contract being modified, only an updating of such statement shall be required for a contract modification. In addition, if determined appropriate by the contracting officer for the Board, such certificates may be required in connection with any other contracts subject to this part or in which this part has been incorporated by reference.

(b) Marketing consultant services. There shall further be included in all

Board solicitations, except sealed bids, where the contract amount is expected to exceed $200,000, a provision requiring an organizational conflicts of interest certificate from any marketing consultants engaged by an offeror in sup port of the preparation or submission of an offer for & Board contract by that offeror. (57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993) $1706.7 Procedures.

(a) Pre-award disclosure and resolution of OCIs. If a certificate under $1706.6 indicates, or the Board otherwise learns, that actual or potential OCIS could be, or would appear to be, created by contract award to & particular offeror, the Board shall afford the affected offeror an opportunity to provide in writing all relevant facts bearing on the certificate. If the Board thereafter determines that an actual or potential OCI exists, one of the following actions shall ultimately be taken:

(1) Disqualify the offeror;

(2) Include in the contract appropriate terms and conditions which avoid the conflict, in which case no waiver is required; or

(3) Make a finding that it is in the best interests of the Government to seek award of the contract under the waiver provisions of $1706.8, and, where reasonably possible, include contract terms and conditions or take other measures which mitigate such conflicts.

(b) Post-award disclosure and resolution of OCIS. (1) II, after contract award, the contractor discovers actual or potential OCIS with respect to the contract, it shall make an immediate and full disclosure in writing to the contracting officer. This statement shall include a description of the action that the contractor has taken or proposes to avoid or mitigate such conflicts.

(2) If a disclosure under this section indicates, or the Board otherwise learns, that actual or potential OCIS exist, the Board may afford the contractor an opportunity to provide all relevant facts bearing upon the problem. If at any time the Board determines that an actual or potential OCI

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