PART 9-17 EXTRAORDINARY CONTRACTUAL

ACTIONS TO FACILITATE

THE NATIONAL DEFENSE

§9-17.101 Authority.

Subpart 9-17.1 General

(a) Pursuant to Public Law 85-804, and Executive Order No. 10789, as amended, the DOE, for functions transferred from ERDA, Department of the Interior, Department of Commerce and the Navy, has been authorized to exercise the authority provided for in the Act. This authority, which expands ordinary contracting authority, enables it to achieve procurement objectives and pursue policy goals which otherwise might be unattained. The authority of the Act, the Executive Order, and these regulations establish no rights in any party outside the agency and the exercise of authority is wholly discretionary with the agency.

(b) The authority vested in the Secretary by the Act and the Executive order, as amended, is delegated to:

(1) The Senior Procurement Official, Headquarters, provided that such delegation does not include authority to deny relief in contractual fairness cases as defined in §9-17.204-52, and by the Senior Procurement Official, Headquarters, to Heads of Procuring Activities with respect to contractual fairness cases only (not to exceed $50,000), provided that such delegation does not include authority to deny relief.

(2) The Board of Contract Appeals (which for the purpose of this part is designated as a Contract Adjustment Board) with respect to contractual fairness cases as defined in §9– 17.204-52, and such other matters as may be referred to the Board by the Senior Procurement Official, Headquarters, or designee. This authority only extends to cases arising out of functions transferred from ERDA.

(c) The delegations of authority in paragraph (b) of this section are subject to the limitations in FPR 1-17.205-1 and, in the case of contractual fairness cases under $50,000, also of FPR 1-17.205-2. The delegation of authority to the Heads of Procuring Activities may not be redelegated.

§9-17.102 General policy.

(a) The authority may be used only when there exists the following two conditions pertaining directly to the interests of national defense:

and

(1) The Department is exercising a function in connection with the national defense;

(2) The Department finds that the use of the authority will facilitate the national defense. (b) The basis for satisfying the condition in paragraph (a) (2)of this section is a determination that the use of the authority under the Act will:

(1) Effect the accomplishment or implementation of an important procurement objective or policy goal of the Department; or

(2) Provide fair and equitable treatment by the Department to persons directly or indirectly involved in procurement or other contract activities by the Department.

(c) If a determination is made pursuant to §9-17.102(b), the required statutory finding that the use of the authority will facilitate the national defense is conclusively established without need for further consideration.

§9-17.103 Types of action.

The two types of actions under FPR 1-17.103 are classified as follows for Department purposes:

(a) Cases of special management consideration; and

(b) Cases of contractual fairness.

§9-17.105 Reports.

The Senior Procurement Official, Headquarters or designee is responsible for preparing the annual report to the Congress required by FPR 1-17.105.

Subpart 9-17.2 Requests for Contractual Adjustment

$9-17.204 Standards for deciding cases.

89-17.204-50 General.

(a) The types of situations identified in FPR 1-17.204 are divided into cases requiring special management consideration and cases giving rise to questions of contractual fairness.

(b) The authority under the Act may be exercised to accomplish or implement important procurement objectives or policy goals of the Department of Energy when ordinary means are deemed to be lacking or inadequate. In cases of special management consideration, the authority is a management tool available for use as the need requires.

(c) The procurement mission of Department of Energy requires a firm policy of fair and equitable treatment by the Department of contractors, subcontractors, vendors, suppliers, consultants, and all others who directly or indirectly perform services for or furnish material or capacity to the Department. In contractual fairness cases, exercise of the authority under the Act is proper when the normal administrative means for the Department to assure fair and equitable treatment to those involved in its procurement or other contract activities are inadequate. (d) All requests for use of authority under the Act shall be decided as expeditiously as possible and in accordance with applicable policy and procedural standards in this part.

$9-17.204-51 Cases of special management consideration.

(a) These are cases concerned with facilitating the national defense through the accomplishment of an important procurement objective or policy goal of the Department. Such cases include the amendment of contracts under FPR 1-17.204-2(a), advance payments, and the exercise of residual powers under FPR 1-17.3. In addition to amendments without consideration in essentiality cases, examples of cases for special management consideration are:

(1) Transfer of Department property,

(2) Special terms and conditions such as indemnification or wage stabilization agreements in contracts, and

(3) Resolution of problems arising out of relationships between a prime contractor and its subcontractors, vendors, suppliers, and consultants.

(b) The exercise of the authority in cases of special management consideration may immediately concern anyone directly or indirectly involved in procurement or other contract activities of the Department, including prime contractors, subcontractors, vendors, suppliers, and consul

tants.

$9-17.204-52 Cases of contractual fairness.

These are cases concerned with facilitating the national defense through fair and equitable treatment by the Department of its prime contractors, and of its subcontractors, vendors, suppliers, consultants, and other persons directly or indirectly involved in procurement or other contract activities of the Department. Such cases include:

(a) Correction or mitigation of the effects of a mistake in a prime contract of the Department (FPR 1-17.204-3);

(b) Formalizing informal commitments (FPR 1-17.204-4); and

(c) Adjustments in contracts based on Department action (FPR 1-17.204–2(b)).

§9-17.207 Requests by contractors.

§9-17.207-1 Filing requests.

A request for use of the authority may be made by any party who performs services for or furnishes material or facilities to the Department, either directly or indirectly. The request shall be filed in quintuplicate with the cognizant Head of the Procuring Activity or designee. If such filing is impractical, requests will be deemed to be properly filed if filed with the Senior Procurement Official, Headquarters, or designee.

§9-17.207-2 Form of requests.

In addition to the requirements of FPR 1-17.207-2, if the request is by a subcontractor, vendor, supplier, or consultant under a DOE prime contract, a copy of the request by the requesting party to the prime contractor for a statement of his position with respect to the proposed use of authority under the Act and a copy of his reply, if available, shall also be filed with the Head of the Procuring Activity or designee. All possibilities for dispostion of any claim between the prime contractor and the party requesting relief should be exhausted prior to requesting the use of the authority under the Act. In instances where the possibilities for disposition have not been exhausted, the matter will be referred to the prime contractor for consideration.

§9-17.207-50 Procedure for handling cases.

(a) Special management consideration cases:

(1) All requests for the exercise of authority under the Act in cases of special management consideration shall be referred to the Senior Procurement Official, Headquarters, or designee for consideration, provided that requests under $50,000 may be referred by the Senior Procurement Official, Headquarters, or designee to the cognizant Head of the Procuring Activity for disposition.

(b) Cases of contractual fairness:

(1) Requests for use of the authority under the Act in cases of contractual fairness (not to exceed $50,000) shall be referred to the Head of the Procuring Activity having cognizance over the contract or subcontract involved, or in the case of Headquarters' contracts, the Senior Procurement Official, Headquarters, or designee.

(2) Thereupon, steps shall be taken to ascertain promptly whether or not the request contains the information called for under §9-17.207-2 and if it does not, additional information needed to cure the deficiency shall be requested from the person requesting relief.

(3) Where a request cannot be resolved by the Head of a Procuring Activity solely because the request for relief is in excess of $50,000, he shall forward the request to the Senior Procurement Official, Headquarters, or designee with his recommendation.

(4) In the event the resolution proposed by the Head of the Procuring Activity or designee is unacceptable to the person making the request, it shall be referred to the Board of Contract Appeals (acting in its capacity as a Contract Adjustment Board) for disposition in accordance with this part.

(c) The Senior Procurement Official, Headquarters, or designee or Head of the Procuring Activity may, in their discretion, refer requests at any time to the Board of Contract Appeals (acting in its capacity as a Contract Adjustment Board).

§9-17.208 Processing cases.

(a) When submitting cases for consideration by the Senior Procurement Official, Headquarters, or designee, Heads of Procuring Activities shall submit four copies of the following along with the cases:

(1) The contractor's request in the form described in FPR 1-17.207–2,

(2) The preliminary record required by FPR 1-17.207-3,

(3) The facts and evidence described in FPR 1-17.207-4, unless the Senior Procurement Official, Headquarters, shall approve their omission, and

(4) The recommended course of action.

(b) Cases within the jurisdiction of the Board of Contract Appeals (acting in its capacity as a Contract Adjustment Board) shall be submitted directly to the Board, and the submission shall include the data described in paragraph (a) of this section.

§9-17.208-3 Disposition.

Subject to FPR 1-17.208-3(b) and applicable security regulations, in cases of special management consideration where the authority is used and in all cases of contractual fairness, Memoranda of Decision shall be available for public inspection.

$9-17.208-4 Records.

Heads of Procuring Activities, the Senior Procurement Official, Headquarters, or designee and the Chairman of the Board of Contract Appeals (acting in its capacity as a Contract Adjustment Board) shall maintain the records required by FPR 1-17.208-4 for each case handled within their respective areas of authority.

§9-17.208-50 Proceedings before the Contract Adjustment Board (CAB).

(a) When a case is to be decided by the Contract Adjustment Board, the CAB shall proceed in the same general manner as when it presides as the Board of Contract Appeals with respect to cases before it. Any party directly affected by a request for the exercise of authority under the Act shall be entitled to a hearing by the CAB of the same general character as the Board of Contract Appeals otherwise provides. The CAB shall make its decision on the record, prepare a Memorandum of Decision as provided in FPR 1-17.208-3, and thereupon transmit it to all parties to the proceeding.

(b) Whenever a case is before the Board of Contract Appeals and it appears that the case is one of contractual fairness under §9-17.204-52, the Board may continue to hear and decide the case as a Contract Adjustment Board with or without sending it to the Head of the cognizant Procuring Activity for consideration, depending on the particular circumstances and the requirement of fair and equitable treatment of all parties concerned, provided that whenever a case is based on a request for use of the authority under the Act, it shall be placed on the CAB's docket for such cases.

§9-17.208-51 Intra-agency coordination.

When a request for use of authority under the Act involves issues relating to both special management consideration and contractual fairness, the handling of the request shall be coordinated by the Senior Procurement Official, Headquarters, or designee and the Chairman, Contract Adjustment Board, provided that the Senior Procurement Official, Headquarters, or designee shall have the option of acting first on the request. After the Senior Procurement Official, Headquarters, or designee acts upon the request, the request may still be regarded as a case of contractual fairness and handled accordingly.