9-17.101 9-17.102 9-17.103 9-17.105 PART 9-17 EXTRAORDINARY CONTRACTUAL ACTIONS Authority. General policy. Subpart 9-17.1 General 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 §917.204-52, 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 indinvolved in procurement or other contract activities by the Department. If a determination is made pursuant to §9-17.102(b), the required statutory finding that of the authority will facilitate the national defense is conclusively established without or further consideration. 03 Types of action. wo types of actions under FPR 1-17.103 are classified as follows for Department pur Cases of special management consideration; and Cases of contractual fairness. 05 Reports. Senior Procurement Official, Headquarters or designee is responsible for preparing the 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. §9-17.204-50 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)). |