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Subpart 903.5 Other Improper Business 903.104-10 Violations or possible violaPractices

tions (DOE coverage-paragraph

(a)). 903.502 Subcontractor kickbacks.

(a) Except for Headquarters activiSubpart 903.6–Contracts with Govern ties, the individual within DOE respon

ment Employees or Organizations sible for fulfilling the requirements of Owned or Controlled by Them

48 CFR 3.104-10(a) (1) and (2) relative to

contracting officer conclusions on the 903.603 Responsibilities of the contracting

impact of a violation or possible violaofficer.

tion of subsections 27 (a), (b), (c) or (d) AUTHORITY: 42 U.S.C. 7254; 40 U.S.C. 486(c). of the Office of Federal Procurement SOURCE: 49 FR 11940, Mar. 28, 1984, unless

Policy Act shall be the legal counsel otherwise noted.

assigned direct responsibility for pro

viding legal advice to the contracting Subpart 903.1-Safeguards

office making the award or selecting

the source. The legal counsel is the 903.101 Standards of conduct.

Chief Counsel for the Operations Of

fices or the Federal Energy Technology 903.101-3 Agency regulations.

Center; the Counsel, or the Chief CounDetailed rules applicable to the con

sel, for the Support Offices or the duct of DOE employees are set forth in

Naval Reactors Offices; and the Gen

eral Counsel for the Power Administra10 CFR part 1010.

tions. For Headquarters activities, the (49 FR 11940, Mar. 28, 1984, as amended at 60 individual designated to perform the FR 47307, Sept. 12, 1995)

responsibilities in 48 CFR 3.104-10(a) (1)

and (2) regarding questions of disclo903.1043 Definitions.

sure of proprietary or source selection As used in this section and for the information is the Assistant General purposes of the post-employment re- Counsel for Procurement and Financial strictions at 48 CFR (FAR) 3.104 4(d) Assistance. The designated individual

Deputy program manager means the for other questions regarding 48 CFR individual within DOE who normally 3.104-10(a) (1) and (2) for Headquarters acts as the program manager in the ab- activities is the Agency Ethics Official sence of the program manager, and (Designated Agency Ethics Official). does not mean an individual who occasionally acts for the program manager

[62 FR 53756, Oct. 16, 1997] or the deputy program manager. Program manager means the indic Subpart 903.

2Contractor Gratuvidual within DOE who:

ities to Government Personnel (1) Exercises authority on a day-today basis to manage an acquisition

903.203 Reporting suspected violations

of the Gratuities clause. program

(i) For a system attained through the (a) Suspected violations of the Gratuacquisition process; and

ities clause shall be reported to the (ii) With one or more contracts, at Head of the Contracting Activity least one of which has a value exceed (HCA) in writing detailing the ciring $10,000,000; and

cumstances. The HCA will evaluate the (2) Is generally the person at the low report and, if the report appears to subest organizational level who has au stantiate the allegations, the matter thority to make technical and budg will be referred to the Procurement Exetary decisions on behalf of DOE.

ecutive for disposition. System means a combination of ele

[49 FR 11940, Mar. 28, 1984, as amended at 59 ments that function together to

FR 9104, Feb. 25, 1994) produce the capabilities required to fulfill a mission need, including, but 903.204 Treatment of violations. not limited to hardware, equipment,

Apparent violations will be processed software, or any combination thereof.

in accordance with the debarment and 163 FR 56851, Oct. 23, 1998]

suspension rules set forth at Title 10,

part 1035, of the Code of Federal Regulations.

Subpart 903.3—Reports of Suspected Antitrust Violations

3.602, may submit, through the HCA, a request to the Procurement Executive, with appropriate justification, for approval of an exception to the prohibitions contained in FAR 3.601. (49 FR 11940, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994)

PART 904—ADMINISTRATIVE

MATTERS

903.303 Reporting suspected antitrust

violations. (a) Potential anti-competitive practices, such as described in FAR 3.301, and antitrust law violations as described in FAR 3.303, evidenced in bids or proposals, shall be reported to the Office of General Counsel through the Head of the Contracting Activity with a copy to the Procurement Executive. The Office of General Counsel will provide reports to the Attorney General, as appropriate. [50 FR 12183, Mar. 27, 1985, as amended at 59 FR 9104, Feb. 25, 1994)

Subpart 904.4—Safeguarding Classified

Information Within Industry

Sec.
904.401 Definitions.
904.402 General.
904.404 Contract clause.

Subpart 904.6 [Reserved]
Subpart 904.7-Contractor Records

Retention

Subpart 903.4-Contingent Fees 903.408-1 Responsibilities.

(b) Each Standard Form 119 completed in connection with a DOE contract, together with other relevant information, shall be reviewed by Counsel prior to the initiation of appropriate action.

904.702 Applicability.

Subpart 904.8Contract Files 904.803 Contents of contract files. 904.804-1 Closeout by the office admin

istering the contract (DOE Coverage

paragraphs (a) and (b)). 904.805 Disposal of contract files.

Subpart 904.70_Foreign Ownership, Control, or Influence Over Contractors

Subpart 903.5–Other Improper

Business Practices 903.502 Subcontractor kickbacks.

(b) Contracting officers shall report suspected violations of the Anti-Kickback Act through the Head of the Contracting Activity, or designee, to the Office of General Counsel.

Subpart 903.6—Contracts with

Government Employees or
Organizations Owned or Con-

trolled by Them 903.603 Responsibilities of the con

tracting officer. (a) When the needs of the Government cannot be reasonably supplied by sources other than employees of the Government or sources which are substantially owned or controlled by Government employees, the contracting officer, in accordance with FAR 48 CFR

904.7000 Purpose. 904.7001 Applicability. 904.7002 Definitions. 904.7003 Disclosure of foreign ownership,

control, or influence. 904.7004 Findings, determination, and con

tract award or termination. 904.7005 Solicitation provision and contract

clause. Subpart 904.71–Prohibition on Contracting

(National Security Program Contracts) 904.7100 Scope of subpart. 904.7101 Definitions. 904.7102 Waiver by the Secretary. 904.7103 Solicitation provision and contract

clause. AUTHORITY: 42 U.S.C. 7254; 40 U.S.C. 486(c).

SOURCE: 49 FR 11941, Mar. 28, 1984, unless otherwise noted.

Subpart 904.4—Safeguarding

Classified Information Within

Industry 904.401 Definitions.

Classified Information means any information or material that is owned by, produced by or for, or is under the control of the United States Government, and determined pursuant to provisions of Executive Order 12356, April 2, 1982 (47 FR 14874, April 6, 1982), or prior orders, or as authorized under the Atomic Energy Act of 1954, as amended, to require protection against unauthorized disclosure, and is so designated.

Restricted Data means data which is defined in section 11, of the Atomic Energy Act of 1954, as amended, as "all data concerning: (1) Design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 142.” [49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994)

be used instead of that at FAR 52.204 2.

(2) Classification, 952.20470. This clause is to be used in all contracts which involve classified information.

(3) Sensitive foreign nation controls, 952.20471. This clause is required in unclassified research contracts which may involve making unclassified information about nuclear technology available to certain sensitive foreign nations. The contractor shall be pr vided at the time of award the listing of nations included in DOE 1240.2 (see current version.), Attachment 3, and any subsequent changes. (The attachment referred to in the clause shall set forth the applicable requirements of the DOE regulations on dissemination of unclassified published and unpublished technical information to foreign nations.)

(4) Disclosure of information, 952.20472. This clause should be used in place of the clauses entitled "Security" and “Classification" in contracts with educational institutions for research work performed in their own institute facilities that are not likely to produce classified information. (49 FR 11941, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984, as amended at 54 FR 27646, June 30, 1989; 59 FR 24358, May 11, 1994]

Subpart 904.6 [Reserved] Subpart 904.7-Contractor

Records Retention

904.402 General.

(a) The basis of DOE's security requirements is the Atomic Energy Act of 1954, as amended.

(b) DOE security regulations. DOE regulations concerning national security information are codified at 10 CFR part 1045. [49 FR 11941, Mar. 28, 1984, as amended at 60 FR 47307, Sept. 12, 1995] 904.404 Contract clause.

(d) The security clauses to be used in DOE contracts are found at 952.204. They are:

(1) Security, 952.2042. This clause is required in contracts under section 31 (research assistance) or 41 (ownership and operation of production facilities) of the Atomic Energy Act of 1954, as amended, and in other contracts and subcontracts, the performance of which involves or is likely to involve classified information. The DOE system is separate from that of the Department of Defense and the DEAR clause shall

904.702 Applicability.

(b) Contracts containing the Safety and Health clause at 952.223–71, the Radiation Protection and Nuclear Criticality clause at 952.223–72, or the Nuclear Safety clause at 952.223–74 must also include the Preservation of Individual Occupational Radiation Exposure Records clause at 952.223–75 which will necessitate retention of records in accordance with schedules contained in applicable DOE Directives in the records management series, rather than those found at FAR 4.7. (49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 60 FR 47307, Sept. 12, 1995; 62 FR 2312, Jan. 16, 1997]

Subpart 904.8–Contract Files 904.803 Contents of contract files.

(a) (29) The record copy of the Individual Procurement Action Report shall be included in the file section containing procurement management reports.

or continued performance of a contract by a firm, may pose an undue risk to the common defense and security because of the foreign influence. (49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994]

904.804-1 Closeout by the office ad

ministering the contract (DOE Cov

erage paragraphs (a) and (b)). (a) The Head of the Contracting Activity shall ensure that necessary procedures and milestone schedules are established to meet the requirements of FAR 4.804-1, and that resources are applied to effect the earliest practicable deobligation of excess funds and the timely closeout of all contract files which are physically completed or otherwise eligible for closeout action.

(b) Quick closeout procedures for cost reimbursable and other than firm fixed price type contracts are covered under 48 CFR 42.708. [49 FR 11941, Mar. 28, 1984, as amended at 62 FR 53757, Oct. 16, 1997]

904.7001 Applicability.

The provisions of this subpart shall apply to all offeror(s), contractors, and subcontractors who will or do have access to classified information or a sig. nificant quantity of special nuclear material as defined in 10 CFR part 710. In this subpart, the term "contractor" shall also mean subcontractor at any tier, the term "contract" shall also mean subcontract at any tier, and the term "special nuclear material” shall also mean significant quantity of special nuclear material as defined in 10 CFR part 710. [49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994)

904.805 Disposal of contract files.

Contract files shall be disposed of in accordance with applicable DOE Order 1324.2. (See current version.) (49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994)

Subpart 904.70—Foreign Owner

ship, Control, or influence

Over Contractors 904.7000 Purpose.

This subpart sets forth the Department of Energy policies and procedures regarding foreign ownership, control, or influence (FOCI) over contractors. The procedures are designed to protect against an undue risk to the common defense and security which may result if classified information or special nuclear material is made available to DOE contractors or subcontractors who are owned, controlled, or influenced by foreign governments, individuals, or organizations. The procedures require certain offeror(s) and contractors/subcontractors to submit information which will help DOE to determine whether award of a contract to a firm,

904.7002 Definitions.

Contracting officer means the DOE contracting officer.

Foreign interest means any of the following:

(1) Foreign government or foreign government agency or instrumentality thereot;

(2) Any form of business enterprise organized under the laws of any country other than the United States or its possessions;

(3) Any form of business enterprise organized or incorporated under the laws of the U.S., or a State or other jurisdiction within the U.S. which is owned, controlled, or influenced by a foreign government, agency, firm, corporation, or person, or

(4) Any person who is not a U.S. citizen.

Foreign ownership, control, or influence means the situation where the degree of ownership, control, or influence over an offeror(s) or a contractor by a foreign interest is such that a reasonable basis exists for concluding that compromise of classified information or special nuclear material may possibly result. (49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994)

904.7003 Disclosure of foreign owner. 904.7004 Findings, determination, and ship, control, or influence.

contract award or termination. (a) If a contract requires a contractor (a) Based on the information disto have access to classified information closed by the offeror(s) or contractor, or a significant quantity of special nu- and after consulting with the DOE Ofclear material, the DOE must deter- fice of Safeguards and Security, the mine whether access to the informa- contracting officer must determine tion or material by a contractor who is that award of a contract to an offeror may be subject to FOCI may pose an or(s) or continued performance of a undue risk to the common defense and contract by a contractor will not pose security before a contract can be an undue risk to the common defense awarded.

and security. The contracting officer (b) If during the performance of a need not prepare a separate finding and contract, the contractor comes under determination addressing FOCI;- howFOCI, then the DOE must determine ever, the memorandum of negotiation whether any further access to the clas- shall include a discussion of the applisified information or special nuclear cability of this subpart and the resultmaterial may pose an undue risk to the ing determination. common defense and security through (b) In those cases where FOCI does the possible compromise of that infor- exist, and the DOE determines that an mation or material. If the DOE deter- undue risk to the common defense and mines that such a threat or potential security may exist, the offeror(s) or threat exists, the contracting officer contractor shall be requested to proshall consider the alternatives of nego- pose within a prescribed period of time tiating an acceptable method of iso- a plan of action to avoid or mitigate lating the foreign interest which owns, the foreign influences by isolation of controls, or influences the contractor the foreign interest. or terminating the contract.

(c) The types of plans that a con(c) It is essential for the DOE to ob tractor can propose are: measures tain information about FOCI which is which provide for physical or organizasufficient to help the Department de tional separation of the facility or ortermine whether award of a contract to ganizational component containing the a person or firm, or the continued per- classified information or special nuformance of a contract by a person or clear material; modification or termifirm, may pose undue risk to the com- nation of agreements with foreign inmon defense and security. Therefore, terests; diversification or reduction of the provision specified at 952.204-73 foreign source income; assignment of shall be included in solicitations that specific security duties and responsibilinvolve offeror(s) or contractors that ities to board members or special execare subject to 904.7001.

utive level committees; or any other (d) The contracting officer shall not actions to negate or reduce FOCI to acaward or extend any contract subject ceptable levels. The plan of action may to this subpart, exercise any options vary with the type of foreign interest under a contract, modify any contracts involved, degree of ownership, and insubject to this subpart, or approve or formation involved so that each plan consent to a subcontract subject to must be negotiated on a case by case this subpart unless:

basis. If the offeror(s) or contractor (1) The contractor provides the infor- and the DOE cannot negotiate a plan of mation required by the solicitation action that isolates the offeror(s) or provision at 48 CFR 952.204–73, and

contractor from FOCI satisfactory to (2) The contracting officer has made the DOE, then the offeror(s) shall not a positive determination in accordance be considered for contract award and with 48 CFR 904.7004.

affected existing contracts with a con

tractor shall be terminated. (49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 62 FR 42073, Aug. 5, [49 FR 11941, Mar. 28, 1984, as amended at 59

FR 9104, Feb. 25, 1994]

1997]

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