§9-3.150-5 Debriefings to unsuccessful offerors.

Upon written request, unsuccessful offerors (those eliminated from competition at earlier stages, as well as those in contention up to the final selection) will be accorded formal debriefings. Such debriefings must be requested within 10 working days of receipt of notification of elimination from consideration or announcement of selection. Debriefings will be provided at the earliest feasible time, which normally shall be after announcement of the selection decision and prior to award of the contract. However, when the exigency of the situation will not permit delaying the award in order to debrief unsuccessful offerors, such debriefing may be conducted after award of the contract.

§9-3.151 Identification of proprietary data in proposals.

§9-3.151-1 Solicited proposals (including PONs and PRDAs).

Even though the statement of work contained in a solicitation sets forth the known requirements for technical data, i.e., technical data which will be specified to be delivered, there is no assurance that the contractor will deliver all of this data because paragraph (e) of the Rights in Technical Data (long form) clause of §9-9.202-3 (e)(2) permits the contractor to withhold proprietary data from delivery. In order to ascertain the technical data each proposer intends to actually withhold as proprietary data, and as an aid in determining whether to include the provision for limited rights in proprietary data set forth in optional paragraph (g) of the Rights in Technical Data (long form) clause, the provision set forth in §9-3.151-2 shall be included in the solicitation. This provision explains that solicitations will include DOE's known requirements for technical data, and that the proposer must submit a list identifying to the best of its knowledge which of this data will be withheld as proprietary data, or state that no technical data will be withheld. The submission of such list does not constitute a stipulation or determination by the Government that the data identified therein are in fact proprietary. In addition, the provision to be included in the solicitation refers to the Additional Technical Data Requirements clause, §9-9.202-3(c), as being included in the proposed contract where, due to programmatic considerations, it is contemplated that all of the requirements for technical data will not be known at the time of contracting. When a proposer specifically identifies the proprietary data to be withheld, the Contracting Officer shall, as advised by the appropriate program manager, determine whether:

(a) the Government needs limited rights in the proprietary data, in which case the optional paragraph (g) will be included in the Rights in Technical Data (long form) clause;

(b) the Government needs the right to require the contractor to license proprietary data to the Government and responsible third parties, in which case optional paragraph (h) will be included in the Rights in Technical Data (long form) clause; and

(c) the Government needs unlimited rights in the proprietary data, in which case negotiations may be held to purchase or obtain a suitable license in the proprietary data.

89-3.151-2 Solicitations.

The following provision shall normally be included in solicitations which may result in contracts calling for research, development, or demonstration work or contracts for supplies in which delivery of required technical data is contemplated.

The section of this solicitation which describes the work to be performed also sets
forth DOE's known requirements for technical data. The Additional Technical Data
Requirements clause, if included in this solicitation, provides the Government with
the option to order additional technical data, the requirements for which are not
known at the time of contracting. There is, however, a built-in limitation on the kind
of technical data which may be required. This limitation clause provides that the
contractor may withhold delivery of proprietary data. Accordingly, it is necessary
that your proposal state that the work to be performed and the known requirements
for technical data as set forth in the solicitation have been reviewed, and either state

that, to the best of your knowledge, no data will be withheld, or submit a list identify-
ing the proprietary data which, to the best of your knowledge, will likely be used
in the contract performance and will be withheld.

§9-3.151-3 Unsolicited proposals.

The Contracting Officer, during contract negotiations, shall identify technical data which will be required to be furnished under the contract. In such instance, the proposer shall be required to submit a list identifying, to the best of his knowledge, which of this data will be withheld as proprietary under paragraph (e) of the Rights in Technical Data (long form) clause, or to state that no technical data will be withheld. The Contracting Officer shall then make the determinations, in the same manner as set forth in §9-3.151-1 above for solicited proposals, pertaining to the proprietary data identified to be withheld.

§9-3.152 Required notice of right to request patent waiver.

As set forth in §9–9.107–4(a)(6), offerors and prospective contractors are to be provided with notice of the right to request, in advance of or within 30 days after the effective date of contracting, a waiver of all or any part of the rights of the United States with respect to subject inventions. In no event will the fact that an offeror has requested such a waiver be a consideration in the evaluation of his offer or the determination of his acceptability. Accordingly, the following notice shall be given to all prospective contractors and shall be inserted in all solicitations which may result in contracts calling for research, development, or demonstration work:

Offerors and prospective contractors, in accordance with applicable statutes and
DOE Procurement Regulations, have the right to request, in advance of or within
30 days after the effective date of contracting, a waiver of all or any part of the
rights of the United States in subject inventions.

Subpart 9-3.2 Circumstances Permitting Negotiation

§9-3.200 Scope of subpart.

(a) Section 302(c) of the Federal Property and Administrative Services Act of 1949, as amended, authorizes the negotiation of contracts, and is applicable to AEC (now DOE) procurement. Section 302(c)(15) of the Federal Property & Administrative Service Act of 1949, as amended, permits negotiation when otherwise authorized by law, provided that in such event the requirements of that Act shall apply. Accordingly, when the Federal Property and Administrative Services Act of 1949, as amended, or the Atomic Energy Act of 1954, as amended, or other law is used as the basis for negotiation, the requirements of section 304 of the Federal Property and Administrative Services Act of 1949, as amended, are applicable, except as provided in these regulations.

(b) Contracts to support industrial mobilization plans may be negotiated under section 302(c)(1) of the Federal Property and Administrative Services Act of 1949, as amended, or section 302(c)(15) of that Act and the Atomic Energy Act of 1954, as amended, if the requisite circumstances exist and the required findings and determinations can be made.

§9-3.202 Public exigency.

This exception may be applicable where a facility must be altered or repaired immediately in order not to interfere with essential production and the need for the work could not have been reasonably foreseen.

§9-3.204 Personal or professional services.

(c) Formal advertising procedures shall not be used for contracts for architect-engineer or other professional engineering services. Such contracts may be negotiated under section 302(c)(4) of the Federal Property and Administrative Services Act of 1949, as amended, or section 302(c)(15) of that Act and the Atomic Energy Act of 1954, as amended. However, the exemption provided for in §9-3.405-5(b) does not apply to contracts negotiated under section 302(c)(4) of the Federal Property and Administrative Services Act of 1949, as amended. Professional architect-engineer services shall be negotiated in accordance with §9-4.10 and FPR 14.10.

(d) Surveying, mapping, and field or laboratory tests of construction workmanship and materials and equipment should be classified as professional services when they clearly require planning, direction, supervision, or interpretation by professional engineers as a condition of performance, or when the contractor will be required to assume responsibility for the professional adequacy and accuracy of results. Depending upon the nature and requirements of a particular contract, professional engineering services may involve activities such as the following: (1) Overall direction of the technical work;

(2) Supervision of work performed by technicians, sub-professionals, or nonprofessional employees;

(3) Determination of the methods or procedures for accomplishing the requirements of the contract;

(4) Interpretation of the methods or procedures for accomplishing the requirements of the contract; and

(5) Direct performance of required professional services.

(e) When the services are such that the planning and execution can be performed by personnel having only a practical knowledge of the use of instruments and techniques, such as routine aerial photographing and testing, and do not require any professional engineering competence

or judgment, the "personal or professional services" exception to the formal advertising requirement is not applicable.

(f) Surveying, mapping, and testing services.

In 1959, the American Society of Civil Engineers (ASCE) adopted a policy statement that land surveying, engineering surveying, geodetic surveying, and cartographic surveying, commonly designated as surveying and mapping, are a part of the civil engineering profession. The report of the ASCE Task Committee on Status of Surveying and Mapping may be used for guidance in determining which positions should be considered as professional and which should be considered subprofessional.

§9-3.213 Technical equipment requiring standardization and interchangeability of parts.

If section 302(c)(13) of the Federal Property and Administrative Services Act of 1949, as amended, and the Atomic Energy Act of 1954, as amended, are used as the bases for negotiation, the example of determinations and findings set forth in FPR 1-3.213(e)(2) shall be appropriately modified to state the authority for negotiations.

§9-3.215 Otherwise authorized by law.

(a) The Atomic Energy Act of 1954, as amended, and the Atomic Energy Community Act of 1955, as amended, contain various exemptions from section 3709 of the Revised Statutes, as amended. Pursuant to section 310 of the Federal Property and Administrative Services Act of 1949, as amended, these references to section 3709 shall be construed to authorize procurement pursuant to section 302(c)(15) of the Federal Property and Administrative Services Act of 1949, as amended, without regard to the advertising requirements of sections 302(c) and 303 of that Act. The situations enumerated in FPR 1–3.201 through 1–3.214 are illustrative of situations which could support a determination and finding under the Atomic Energy Act of 1954, as amended, that advertising is not reasonably practicable or, as appropriate, that negotiation is necessary in the interest of common defense and security.

(b) The Atomic Energy Act of 1954, as amended, also provides in section 162 that the President may, in advance, exempt any specific action of Department of Energy in a particular matter carried out under the authority of the Atomic Energy Act of 1954, as amended, from the provisions of law relating to contracts whenever he determines that such action is essential in interest of common defense and security.

(c) Every contract negotiated under the authority of section 302(c)(15) of the Federal Property and Administrative Services Act of 1949, as amended, and the Atomic Energy Act of 1954, as amended, shall be supported by a determination and finding justifying use of such authority.

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Subpart 9-3.3 Determinations, Findings, and Authorities

§9-3.301 General.

Except as otherwise provided in §9-3.302, the determinations and findings required by FPR Subpart 1-3.3 shall be made. Except as otherwise provided in §9-3.303, the determinations and findings required by FPR Subpart 1-3.3 may be made and executed by Contracting Officers, or by DOE Headquarters officials that have been delegated authority to select contractors.

§9-3.302 Determinations and findings required.

The determination and findings required by FPR 1–3.302(d) is not required when the contract is negotiated under the Atomic Energy Act of 1954, as amended.

§9-3.303 Determinations and findings by the Head of the Agency.

Determinations and findings supporting negotiation under the authority of the Federal Property and Administrative Services Act of 1949, section 302(c)(11) (FPR 1-3.211), with respect to contracts which will not require the expenditure of more than $25,000 may be executed by the senior procurement official, Headquarters. Determinations and findings for contracts in excess of $25,000 negotiated pursuant to section 302(c)(11), and in support of all contracts negotiated pursuant to sections 302(c)(12) and 302(c)(13) of the Federal Property and Adminstrative Services Act of 1949, as amended (FPR 1-3.212 & 1-3.213), shall be executed by the Head of the Agency.