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PART 9-50 OPERATING AND ON-SITE

SERVICE CONTRACTS

19-50.000 Scope of part.

This part sets forth policies and procedures peculiar to contracts for operation of Governmentowned or controlled plants, laboratories and other facilities and contracts for furnishing services on those Government-owned or controlled sites. It also sets forth policies and procedures peculiar to procurements placed by those operating and on-site service contractors and other designated

contractors.

89-50.001 Definitions.

(a) For the purposes of this part, and unless otherwise indicated, the following terms have these meanings:

(1) Operating contracts are contracts:

(i) For the management of Government-owned laboratories, production plants, and research facilities located on Government-owned or leased sites, where the programs being conducted are considered of a long-term, continuing nature; or

(ii) For the operation of Government-owned facilities located on contractor-owned or leased sites where the programs being conducted are of a long-term, continuing nature. An example of this category would be those contracts with universities for the operation of Governmentowned laboratories and facilities, located on university-owned sites, for the purpose of conducting long-term basic research programs.

(iii) Other contracts performed on Government-owned sites, designated by the Senior Procurement Official, Headquarters, or the Head of the Procuring Activity, to be subject to the provisions of this part. Implementation of §9–50.704–13 through –16 will be subject to the procedures in 39-1.009-2.

(2) On-site service contracts are those cost-reimbursement type contracts for the performance of services of a continuing nature for DOE at Government-owned sites. (These generally would not include support service contracts such as those for management support services, technical evaluation, etc.)

(3) Single purpose contracts for the operation of process developmental units, pilot plants, and demonstration plants where the purpose is to demonstrate the viability of processes toward the goal of commercialization are not considered to be included, unless designated operating contracts in accordance with (iii) above for the purpose of this section.

Subpart 9-50.1 General

39-50.100 Scope of subpart.

This subpart includes policies and procedures, which apply specifically to operating and on-site service contracts.

§9-50.101 Mandatory use of Federal specifications. (FPR 1-1.305–1)

The paper specification standards published by the Joint Committee on Printing for the purchase of paper to be used on Government-owned printing, binding, and duplicating equipment shall be applied to procurements by operating contractors.

89-50.102 Contingent fees. (FPR 1-1.5)

The policies and requirements of FPR Subpart 1-1.5 shall be applied to all procurement activities of operating and on-site service contractors.

$9-50.103 List of concerns or individuals debarred, suspended, or declared ineligible. (FPR

1-1.6)

Use of DOE consolidated List of Debarred, Suspended, and Ineligible Contractors published by the Senior Procurement Official, Headquarters, is mandatory on all operating and on-site service contractors.

$9-50.104 Small business and small disadvantaged business concerns. (FPR 1-1.7 and 1-1.13). (a) The policies and procedures in the following regulations shall be applied to procurement activities of operating and on-site service contractors.

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(b) Protests received by contractors regarding small business status or questions concerning small disadvantaged business shall be referred to the SBA through the DOE conracting officer.

(c) Procurement of construction between $10,000 and $3 million, including new constructions, and repair and alteration of structures, shall be set aside on a class basis for small business concerns. When, in the judgment of the contractor, a particular procurement falling within these dollar limits is determined to be unsuitable for a small business set-aside, notification to SBA shall be made through the DOE contracting officer. Unless SBA appeals the decision (see FPR 1-1.706-2), the contractor shall proceed to process the procurement on an unrestricted basis. Small business set-aside preferences should be considered for construction procurements in excess of $3 million on a case-by-case basis, favoring such preferential participation of small business, whenever appropriate.

(d) Initiation of set-asides by contractors shall be made on a unilateral basis.

(e) Procuring activities shall require operating and on-site service contractors to prepare quarterly reports on small business, small disadvantaged business, and contracts placed in labor surplus areas.

(f) To expand participation of small and small disadvantaged business sources by contractors having cost-type contracts, Government-owned plants and laboratories and other on-site service contractors shall publicize proposed actions of $100,000 and above in accordance with FPR 1-1.1003-7.

This procedure will be followed unless approval of the contracting officer to waive the requirements of this provision is obtained.

89-50.105 Reporting possible antitrust violations and identical bids (FPR 1-1.9)

The procedures in FPR Subparts 1-1.9 and 1–1.16 shall be applied to procurements by operating and on-site contractors. Reports required by these subparts shall be submitted to the Head of the Procuring Activity to be handled in accordance with 9-1.9 and 9-1.16.

89-50.106 Qualified products. (FPR 1-1.11)

(a) Heads of Procuring Activities may authorize use of procedures in FPR Subpart 1-1.11 by operating and on-site service contractors.

(b) Qualified products lists shall be distributed to operating and on-site service contractors authorized to follow QPL procedures.

89-50.108 Labor Surplus Area Concerns.

(a) The policies and procedures in the following FPR sections shall be applied to the procurement activities of operating and on-site service contractors.

Operating and on-site service contractors are authorized to employ total labor surplus area (LSA) set-asides where there is a reasonable expectation that bids or proposals will be obtained from a sufficient number of responsible LSA concerns so that awards will be made at reasonable prices. The priorities set forth in FPR 1-1.706–1(a) shall be utilized in determining the type of set-aside to be employed.

FPR 1-1.706-1(a) and (e)

1-1.801

1-1.802-1

1-1.802-2(d)

1-1.804-1 (except that the references to §1-1.706-1 and 1-706-2 shall read §1-1.706-1(a) and, 1-1.805–3(e)).

(b) Protests received or questions raised by contractors regarding LSA status shall be handled with the Department of Labor through the DOE Contracting Officer.

(c) LSA set-aside procurements awarded by operating and on-site service contractors shall be reported quarterly on DOE Form PR-330A in accordance with "A Guide to Preparation of DOE Quarterly Procurement and Financial Assistance Reports."

(d) Initiation of set-asides by contractors shall be on a unilateral basis.

OMB CONTROL No.: 1901-0021, paragraph (c).

13-136 0-83--31

§9-50.109 General policy on organizational conflicts of interest.

89-50.109-1 Scope of subpart.

Subpart 9-1.54 applies to procurements by operating and on-site service contractors.

§9-50.109-2 Architect-engineer/construction services.

Combinations of contracts or subcontracts for architect-engineer and construction services, which may result in self-inspection of construction work, tend to prevent a contractor from rendering unbiased decisions, or create difficulties in segregating costs between contracts, and should be avoided. However, it is recognized that sometimes it is advantageous under carefully circumscribed conditions for DOE to obligate a single firm to perform both architect-engineer and construction management services which may include performance of a segment of the construction work with the contractor's own forces. Unless otherwise authorized by the Senior Procurement Official, Headquarters, the following combinations of contracts or subcontracts shall not be awarded to the same firm or to affiliated companies:

(a) In the event that the performance of any portion of the work under either a proposed cost-type or fixed-price contract is to be performed on different projects concurrently with, and in the same general location, then both the cost-type contract and the proposed fixed-price contract shall not be awarded to the same firm or affiliated companies. This restriction applies to contracts for construction services, architect-engineer services, or construction and architect-engineer services.

(b) A fixed-price contract or contracts, for both architect-engineer 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 architect-engineer services shall be performed by another organization selected by DOE.

(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 DOE.

§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 DOE 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 submited 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 DOE by DOE contractors will normally be disseminated by DOE to others.

(c) Employees of contractors operating DOE 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 DOE contract unless such employee has been separated, with DOE approval, from performance of work under the DOE contract for such

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