PART 9-3 PROCUREMENT BY NEGOTIATION §9-3.000 Scope of part. This part implements and supplements the policies and procedures governing procurement by negotiation set forth in FPR Part 1-3. Subpart 9-3.1 Use of Negotiation §9-3.102 Factors to be considered in negotiated contracts. In addition to other factors to be considered in FPR 1-3.102, the Contracting Officer must inquire of, and secure complete information from, the prospective contractor as to background patent applications and patents in order that a determination regarding need for a “background patents" provision can be made. $9-3.103 Dissemination of procurement information. See 10 CFR Part 709, Public Records, for regulations relating to the availability of DOE records to the public. §9-3.150 Proposal information. §9-3.150-1 General. Information contained in proposals will be used only for evaluation purposes except to the extent such information is generally available to the public, is already the property of the Government, or the Government already has unrestricted use rights, or is or has been made available to the Government from any source, including the proposer or offeror, without restriction. The term "proposals," as used in this section, includes responses to program opportunity notices (PONs), program research and development announcements (PRDAs)and solicitations of a similar nature, in addition to requests for proposals (RFPs) and unsolicited proposals. As a practical matter, DOE cannot assume any responsibility for disclosure or use of any such information unless it is identified by the proposer or offeror in accordance with this section. Unless a solicitation specifies otherwise, DOE will not refuse to consider a solicited proposal or an unsolicited proposal merely because the proposal is restrictively marked. §9-3.150-2 Treatment of proposal information. (a) A proposal may include technical data and other data, including trade secrets and/or privileged or confidential commercial or financial information, which the proposer does not want disclosed to the public or used by the Government for any purpose other than proposal evaluation. To protect such data the proposer should specifically identify each page including each line or paragraph thereof containing the data to be protected and mark the cover sheet of the proposal with the notice set forth immediately below. Solicitation documents shall include instructions to proposers to mark their proposals in this manner: NOTICE The data contained in pages Reference to this notice on the cover sheet should be placed on each page to which the notice applies. Data, or abstracts of data, marked with this notice will be retained in confidence and used by DOE or its designated representative(s), including Government contractors and consultants, as set forth in §9-3.150-4, below, solely for the purpose of evaluating the proposal. The data so marked will not otherwise be disclosed or used without the proposer's prior written permission except to the extent provided in any resulting contract, or to the extent required by law. Proposers should be aware of the provisions of §9–3.150–4 if they desire to modify the above notice or otherwise seek to limit the evaluation to the Government only. The restriction contained in the notice does not limit the Government's right to use or disclose any data contained in the proposal if it is obtainable from any source, including the proposer, without restriction. Although it is policy to treat all proposals as confidential, the Government assumes no liability for disclosure or use of unmarked data and may use or disclose such data for any purpose. See FPR 1-3.103(b) regarding disclosure to other offerors. (b) Should a contract be awarded based on a proposal, it is DOE policy, in consideration of the award, to obtain unlimited rights for the Government in the technical data contained in the proposal unless the prospective contractor marks those portions of the technical information which he asserts as "proprietary data", or specifies those portions of such technical data which are not directly related to or will not be utilized in the work to be funded under the contract. "Proprietary data" is defined in §9-9.201(b). A proposer who receives a contract award shall mark the data identified as proprietary by specifying the appropriate page numbers to be inserted in the Rights to Proposal Data clause of paragraph (c) below, which clause shall be inserted in the contract. Subject to the concurrence of the Contracting Officer, information unrelated to the contract may be deleted from the proposal by the contractor. The responsibility, however, of identifying technical data as proprietary or deleting it as unrelated, rests with the prospective contractor. (c) The following clause shall be included in any contract based on a proposal. This clause is intended to apply only to technical data and not to other data such as privileged or confidential commercial or financial information. RIGHTS TO PROPOSAL DATA Except for technical data contained on pages §9-3.150-3 Handling notice. In order that proposals may be handled in confidence consistent with the policies set forth in this section, the following notice shall be affixed to a cover sheet attached to each proposal upon receipt by DOE. Use of the notice neither alters any obligation of the Government, nor diminishes any rights in the Government to use or disclose data or information. NOTICE FOR HANDLING PROPOSALS This proposal shall be used or duplicated only for DOE evaluation purposes, and §9-3.150-4 Disclosure outside Government. (a) Policy. It is DOE policy to have proposals evaluated by the most competent persons available in Government. In addition, DOE frequently meets its evaluation needs by having proposals reviewed by evaluators and contractor organizations operating or managing government-owned facilities. Outside evaluations may be made provided the requirements in (b) and (c) below are met. A decision to employ outside evaluators shall take into consideration requirements for avoidance of organizational conflicts of interest set forth in §9-1.54 and the competitive relationship, if any, between the proposer and the prospective outside evaluator. (b) Approval. Decisions to evaluate proposals outside the government shall be made by the Source Selection Official with the concurrence of the Senior Procurement Official, Headquarters, for all source evaluation board procurements, or by the Senior Program Official or designee with the concurrence of the HPA or his designee for other procurements. If the proposal under consideration expressly indicates that only Government evaluation is authorized and evaluation outside the Government is nevertheless desired, the proposer should be advised that DOE may be unable to give full consideration to the proposal unless the proposer consents in writing to having the proposal evaluated outside the Government. (c) Agreement with evaluator. Where it is determined to evaluate a proposal outside the Government, such as by consultants, grantees and contractors including those who operate or manage Government-owned facilities, the following agreement or an equivalent arrangement for the treatment of the proposal shall be obtained from the outside evaluator before DOE furnishes a copy of the proposal to such person. In addition, care should be taken that the handling notice required by §9–3.150–3 is affixed to a cover sheet attached to the proposal before it is disclosed to the evaluator. CONDITIONS FOR EVALUATING PROPOSALS Whenever DOE furnishes a proposal for evaluation, the recipient agrees to use the §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. §9-3.151-2 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 that, to the best of your knowledge, no data will be withheld, or submit a list identify- §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 |