PART 9-3-PROCUREMENT BY NEGOTIATION

19-3.000 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

19-3.103 Dissemination of procurement information.

See 10 CFR Part 709, Public Records, for regulations relating to the availability of ERDA records to the public.

19-3.150 Treatment of proposal information.

19-3.150-1 General.

It is the general policy of ERDA to use information contained in proposals 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 other sources, including the proposer, without restriction. As a practical matter, ERDA cannot assume any responsibility for disclosure or use of any such information unless it is identified by the proposer in accordance with this section. ERDA will not refuse to consider an unsolicited proposal, or a solicited proposal unless the solicitation specifies otherwise, merely because the proposal is restrictively marked. (See also Subparts 9-4.51 and 9-4.52, and 10 CFR Part 709.)

49-3.150-2 Proprietary data.

A proposal may, unless the solicitation specifies otherwise in the case of a solicited proposal, include proprietary data which the proposer does not want disclosed to the public or used by the Government for any purpose other than proposal evaluation. Such proprictary data must be specifically identified and marked as such on every page where it may be contained, in which event it will be used only for proposal evaluation purposes unless it is within the exception set forth in §9–3.150-1. In such cases, the data so identified and marked will not be otherwise used or disclosed without the proposer's written permission, except to the extent it is within the exception in §9–3.150-1 or as provided in any resulting contract.

49-3.150-3 Privileged business information.

A proposal may contain business information which the proposer does not want disclosed outside the Government except for proposal evaluation purposes. Such privileged business information must be specifically identified and marked as such on every page where it may be contained, in which event it will be disclosed outside the Government only for proposal evaluation purposes unless the information is excepted information as set forth in 89-3.150-1. Regarding disclosure to other offerors, see FPR 1–3.103(b).

49-3.150-4 Handling notice.

In order that restrictively marked proposals may be handled consistently with the policies set forth in this section, the following notice shall be affixed to each such proposal upon receipt by ERDA. Use of the following 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 RESTRICTIVELY MARKED PROPOSALS

This proposal shall be used, or duplicated, only for ERDA evaluation purposes and this notice shall be applied to any reproduction or abstract thereof. Disclosure of this proposal outside the Government for ERDA evaluation purposes shall not be made unless the provisions of ERDA

PROCUREMENT BY NEGOTIATION

Procurement Regulation 9–3.150-5 are followed. The restrictions contained in this notice do not apply to any data or business information contained in this proposal if it is already generally available to the public, is already available to the Government on an unrestricted basis or is the property of the Government, or is or becomes available from another source, including the proposer, without restriction.

19-3.150-5 Disclosure outside Government.

(a) Policy. It is the policy of ERDA to have proposals evaluated by the most competent persons available in Government and contractor organizations operating and managing ERDA facilities. In addition, ERDA frequently meets its evaluation needs by having proposals reviewed by evaluators outside the Government (or contractor organizations operating and managing ERDA facilities). Such latter outside evaluations may be made:

(1) of research proposals from educational and other appropriate not-for-profit institutions pursuant to §9-4.5106–3, provided any proposal which expressly indicates that only Government evaluation is authorized shall not be disclosed without the proposer's written consent.

(2) of other proposals, provided the requirements in (b) and (c) below are met. (b) Approval. Decisions in ERDA Headquarters to evaluate proposals covered by 89-3.150-5(a)(2) outside the Government (or contractor organizations operating and managing ERDA facilities) for ERDA evaluation purposes shall be made by the responsi ble program Division Director, and in ERDA field offices by the Field Office Manager. Such decisions shall take into consideration ERDA requirements for avoidance of organizational conflicts of interest set forth in Subpart 9–1.54 and the competitive relationship, if any, between the proposer and the prospective outside evaluator. In addition, 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 ERDA 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 pursuant to §9–3.150-5(b) to evaluate a proposal outside the Government (or contractor organizations operating and managing ERDA facilities) the following agreement, or an equivalent arrangement for the treatment of the proposal, shall be obtained from the outside evaluator before ERDA furnishes a copy of the proposal to such person. In addition, care should be taken that the note required by 89-3.150-4 is affixed to the proposal before it is disclosed to the evaluator.

CONDITIONS FOR Evaluating Proposals

Whenever ERDA furnishes a proposal for evaluation, the recipient agrees to use the information contained in the proposal only for ERDA evaluation purposes. This requirement does not apply to information obtainable from another source, including the proposer, without restriction. Any notice or restriction placed on the proposal by either ERDA or the originator of the proposal shall be conspicuously affixed to any reproduction or abstract thereof. Upon completion of the evaluation, the recipient shall return all copies of the proposal and abstracts, if any, to the ERDA office which initially furnished the proposal for evaluation. Unless authorized by the ERDA initiating of fice, the recipient shall not contact the originator of the proposal concerning any aspect of its contents.

Subpart 9-3.2-Circumstances Permitting Negotiation

19-3.200 Scope of subpart.

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 ERDA) procurement. Section 302(c)(15) of the Federal Property and Administrative Services 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.

19-3.202 [Reserved]

19-3.204 Personal or professional services.

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(c) does not apply to contracts negotiated under section 302(c)(4) of the Federal Property and Administrative Services Act of 1949, as amended.

49-3.211 [Reserved]

49-3.213 Technical equipment requiring standardization and interchangeability of parts. If 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, are used as the bases for negotiation, the example of findings and determinations set forth in FPR 1-3.213(e)(2) shall be appropriately modified to state the authority for negotiation.

49-3.215 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.

(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 the Commission (now ERDA) in a particular matter from the provisions of law relating to contracts whenever he determines that such action is essential in the interest of the 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 findings justifying use of such authority.

PART 9-9-PATENTS AND COPYRIGHTS

Subpart 9-9.50-Patents, Inventions, Technical Data

49-9.5000 Patents, inventions, technical data, and copyrights.

49-9.5001 Purpose and scope of subpart.

(a) This subpart sets forth the policies and practices of the ERDA in connection with patents and related matters based on the Atomic Energy Act of 1954, as amended, and the Presidential Statement on Government patent policy of October 10, 1963, and prescribes contract articles for the purpose of protecting the Government's interest by securing to the Government (1) patent rights in research and development contracts, operating and service contracts, architect-engineer contracts, special contracts and subcontracts and purchase orders thereunder, and (2) protection against patent risks in architect-engineer, construction, and supply contracts and purchase orders.

(b) The provisions of this subpart shall be followed in authorizing (1) the use of patent provisions in cost-type contractor procurement, and (2) deviations from the flowdown requirements of patent provisions in ERDA and cost-type contractor contracts. The provisions of §§9-9.5008-7 and 9-9.5011 also shall be applied to cost-type contractor procurement. The determinations of need for background patent rights under 89-9.5008-3 and the use of the hold-harmless article in §9-9.5010 shall be made by Managers of Field Offices. The allocation of greater patent rights under $9-9.5005-1 shall be made by the Assistant General Counsel for Patents.

$9-9.5002 Rights in inventions, technical data, and copyrights under contracts.

(a) The current practice of the ERDA as to provisions relating to inventions or discoveries, technical data and copyrights to be inserted in contracts, subcontracts, purchase orders, and other arrangements entered into with or for the benefit of the ERDA is determined primarily by:

(1) The character of the work to be performed under the contract; such as rescarch or development; routine development; construction; supply; quantity production; and (2) The industrial and patent position of the contractor in the field of work of the

contract.

Where provisions relating to inventions are appropriate, a provision concerning waiver of claims for pecuniary awards or just compensation under the Atomic Energy Act of 1954, as amended, shall be included. A similar provision shall be included in employee agreements. No provision pertaining to inventions need be used where ordinary commercial materials or equipment are to be furnished "off the shelf" or in ordinary construction contracts not involving special buildings or equipment. In such instances, however, an indemnity provision as set forth in §9-9.5009 in favor of the Government shall be obtained.

(b) Any question as to modification, interpretation, or application of the appropriate patent, inventions, technical data and copyright provisions shall be referred to the local ERDA counsel for action in collaboration with the local Patent Group, or where no local Patent Group exists, with the Assistant General Counsel for Patents.

9-9.5003

19-9.5003 Type A patent provisions.

The following patent article shall be used where the principal purpose of the contract is:

(a) To conduct research or development work in the field of atomic energy at ERDA expense; or

(b) For the operation of a Government-owned atomic energy research or production facility; or

(c) To conduct research or development for ERDA where a major part of the equipment employed in the research and development is furnished at Government expense.

PATENTS AND COPYRIGHTS

TYPE A PATent ProvisiONS

(a) Whenever any invention or discovery is made or conceived by the contractor or its employees in the course of or under this contract, the contractor shall promptly furnish the ERDA with complete information thereon; and the ERDA shall have the sole power to determine whether or not and where a patent application shall be filed, and to determine the disposition of the title to and rights in and to any invention or discovery and any patent application er patent that may result. The judgment of the ERDA on these matters shall be accepted as final; and the Contractor, for itself and for its employces, agrees that the inventor or inventors will execute all documents and do all things necessary or proper to carry out the judgment of the ERDA.

(b) No ghuim for pecuniary award or compensation under the provisions of the Atomic Energy Act of 1954 as amended, shall be asserted by the contractor or its employees with respect to any invention or discovery made or conceived in the course of or under this contract.

(c) Except as otherwise authorized in writing by the ERDA, the contractor will obtain patent agreements w› effectuale the purposes of paragraphs (a) and (b) of this article from all person's who perform any part of the work under this contract, except such clerical and manual labor personnel as will not have access to technical data.

(d) Except as otherwise authorized in writing by the ERDA, the contractor will insert in all subcontracts provisions making this article applicable to the subcontractor and its employees.'

(~) It is recognized that during the course of the work under this contract, the contractor or its employees may from time to time desire to publish, within the limits of security requirements, information regarding scientific or technical developments made or conceived in the course of or under this contract. In order that public disclosure of such information will not adversely affect the patent interests of the ERDA or the contractor, patent approval for release and publication shall be secured from the ERDA prior to any such release or publication.'

(f) With respect to any U.S. Patent Application filed by the Contractor on any contract invention or discovery made or conceived in the course of the contract, the Contractor will incorporate in the first paragraph of the U.S. Patent Application the following statement:

"The invention described herein was made in the course of, or under, a contract (if desired, may substitute contract with identifying number) with the Energy Research and Development Administration."

19-9.5004 Type B patent provisions.

The following patent article shall be used where the criteria set forth in 49-9.5003 are inapplicable and where:

(a) A principal purpose of the contract is to create, develop or improve products, processes, or methods which are intended for commercial use (or which are otherwise intended to be made available for use) by the general public at home or abroad, or which will be required for such use by governmental regulations; or

(b) A principal purpose of the contract is for exploration into fields which directly concern the public health or public welfare; or

(c) The contract is in a field of science or technology in which there has been little significant experience outside of work funded by the Government, or where the Government has been the principal developer of the field, and the acquisition of exclusive rights at the time of contracting might confer on the contractor a preferred or dominant position; or

(d) The services of the contractor are:

(1) For the operation of a Government-owned, nonatomic energy research or production facility; or

(2) For coordinating and directing the work of others.

TYPE B PATENT PROVISIONS

(a) Whenever any invention or discovery is made or conceived by the contractor or its employees in the course of or under this contract, the contractor shall promptly furnish the ERDA with complete information thereon; and the ERDA shall have the sole power to determine whether or not and where a patent application shall be filed, and to determine the disposition of the title to and the rights in and to any invention or discovery and any patent application or patent that may result: Provided, however, That the contractor, in any event, shall retain at least a non-exclusive, irrevocable, royalty-free license under said invention, discovery, patent application, or patent. Subject to the

'For publication and indemnity clauses for use in research and development contracts with educational institutions, see 99-16.5002-8. Articles B-III and B-VIII, for special research support agreements; and see 19-16.5002-9, Articles B-6 and B-7, for cost-type contracts.