CLAUSE H.1 - LABORATORY FACILITIES
Laboratory Facilities. DOE agrees to continue to furnish and make available to the Contractor, for its possession and use in performing the work under this contract, the Laboratory facilities designated as follows:
(a) The Government-owned or leased land, buildings, utilities, equipment and other facilities situated at the Fermilab Site in DuPage and Kane Counties, Illinois.
(b) Government-owned or leased facilities at such other locations as may be approved by DOE for use under this contract.
DOE reserves the right to make part of the above-mentioned land or facilities available to other Government agencies or other users on the basis that the responsibilities and undertakings of the Contractor will not be unreasonably interfered with. Before exercising its right to make any part of the land or facilities available to another agency or user, DOE will confer with the Contractor.
Subject to mutual agreement, other facilities may be used in the performance of the work under this contract.
CLAUSE H.2 - LONG-RANGE PLANNING, PROGRAM DEVELOPMENT AND BUDGETARY ADMINISTRATION
(a) Basic Considerations. Throughout the process of planning, and budget development and approval, the Parties recognize the desirability for close consultation, for advising each other of plans or developments on which subsequent action will be required, and for attempting to reach mutual understanding in advance of the time that action needs to be taken.
(b) Institutional Planning. It is the intent of the Parties to develop annually an Institutional Plan covering a five-year period. Development of the Institutional Plan is the strategic planning process by which the Parties, through mutual consultation, reach agreement on the general types and levels of activity which will be conducted at the Laboratory for the period covered by the plan. The Institutional Plan approved by DOE provides guidance to the Laboratory for long-range planning of programs, site and facility development, and for budget preparation. It also serves as a baseline for placement of work at the Laboratory.
(c) Work Authorization and Financing
(1) In accordance with the basic principles stated in paragraph (a) of this Clause, the Parties will utilize the procedures set forth in Part III, Attachment J.4, Appendix D, hereto attached and hereby made a part of this contract, for the development and presentation of work programs and budget estimates for the Laboratory and preliminary agreements thereon; such Appendix may be modified from time to time to the extent that the Parties so agree, in writing, without the execution of a formal supplement to this contract.
(2) DOE approval of the program proposals and budget estimates will be reflected in work authorizations and financial plans developed, issued and revised in accordance with the procedures agreed upon under subparagraph (c)(1) above.
CLAUSE H.3 - DEAR 970.70 AGREEMENTS TO PERFORM NON-DOE ACTIVITIES
(a) Subject to the prior written approval of the Contracting Officer, and in compliance with applicable requirements imposed by the Contracting Officer pursuant to clause I.79 - Laws, Regulations, and DOE Directives, the Contractor may, through the Laboratory, perform non-DOE activities which are consistent with and complementary to the DOE's mission and the Laboratory's mission under the contract, involving the use of Laboratory equipment, facilities, or personnel. Such proposed work may be for non-Federal entities or other Federal agencies. The request for such approval shall set forth, in detail, the nature of the outside work to be performed, the Laboratory equipment, facilities or personnel required, and the financial and contractual arrangements proposed to pay for the cost of such work. The Contracting Officer shall consider such a request, being guided, among other factors, by the current or future needs of DOE's programs for the equipment, facilities, or personnel to be utilized in the performance of such outside work. Primary considerations in approving such work are that the proposed work will not place the Laboratory in direct competition with domestic non-Federal entities, will not adversely impact execution of the Laboratory's assigned programs, and will not create a potentially detrimental future burden on commitment of DOE resources. If the Contracting Officer approves such a request, the Contractor and DOE shall agree upon the terms and conditions which would apply to such work. This agreement may provide for receipt by the Government of all or part of such sum as represents the payment to be received by the Contractor for such outside work; provided, however, that DOE may contribute the use of certain equipment, facilities, or personnel to the Laboratory for the performance of such outside work if it determines that it desires to foster the activity in some measure. Except as otherwise approved by DOE, all clauses of this contract shall be deemed to be applicable to the performance of such work. This Clause shall not be construed as amending or superseding the requirements of clause C.1, Statement of Work, set forth in Part I, Section C.
(b) The Contractor shall promptly advise the Contracting Officer of any advance notices of, or solicitations for, a major system acquisition requirement received from other Federal agencies pursuant to FAR 34.005 which would logically involve DOE facilities or resources operated or managed by the Contractor. The Contractor shall not respond to or otherwise propose to participate in response to the requirements of such solicitations unless the Contractor has obtained written approval of the Contracting Officer.
CLAUSE H.4 - ADVANCE UNDERSTANDINGS REGARDING ADDITIONAL ITEMS OF ALLOWABLE AND UNALLOWABLE COSTS
ITEMS OF ALLOWABLE COSTS:
(a) Subject to the approval or ratification, in writing, of the Contracting Officer, reasonable litigation and other legal expenses (including reasonable counsel fees and the premium for bail bond) if incurred in accordance with the clause of the contract entitled “Insurance--Litigation and Claims” and the DOE approved Contractor legal management procedures (including cost guidelines) as such procedures may be revised from time to time and if not otherwise made unallowable in this contract:
(1) necessary to defend adequately any member of the Contractor's internal guard force against whom a civil or criminal action is brought, where such action is based upon lawful act or acts of the guard undertaken by him in the general course of his duties for the purpose of accomplishing and fulfilling the official duties of his employment; or
(2) necessary for the legal defense of employees who are sued for errors, omission or actions, taken within the scope of their employment. Payment of judgments, or settlement of claims against employees, when the judgments or claims arise from errors, omissions or actions, taken within the scope of their employment are also allowable.
(b) Rentals and leases of land, buildings, and equipment owned by third parties, allowances in lieu of rental, charges associated therewith and costs of alteration, remodeling and restorations where such items are used in the performance of the contract, except that such rentals and leases directly chargeable to the contract shall be subject to such approval by the Contracting Officer as set forth in Part III, Attachment J.7, Appendix G.
(c) Notwithstanding the provisions of FAR cost principle 31.205-44 (i), stipends and payments made to reimburse travel or other expenses of researchers and students who are not employed under this contract but are participating in research, educational or training activities under this contract to the extent such costs are incurred in connection with fellowship, international agreements, or other research, educational or training programs approved by the Contracting Officer.
(d) Notwithstanding the provisions of FAR cost principle 31.205-44 (i), payments to educational institutions for tuition and fees for researchers and students who are not employed under this contract or institutional allowances in connection with fellowship or other research, educational or training programs.
(e) Costs incurred or expenditures made by the Contractor, as directed, approved or ratified by the Contracting Officer and not unallowable under any other provisions of this contract.
(f) The following items will be considered as allowable costs and will be included as part of the total negotiated Corporate Office Expenses referenced in Clause H.12.
(1) Reasonable accounting and auditing expenses related to the annual audit required under OMB Circular A-133.
(2) Reasonable expenditures for kitchen sundries and supplies included in Supplies and Uncapitalized Equipment.
(3) Reasonable printing and publication expenses for the URA brochure. Printing expenses shall be in accordance with Government Printing Office regulations.
(4) Reasonable URA banking fees.
(g) Net costs for the Fermilab swimming pool.
(h) Laboratory Director's automobile expenses, (lease costs, gasoline, insurance, etc.) which are solely related to business use. Costs related to all other use are unallowable.
ITEMS OF UNALLOWABLE COSTS:
(a) Premium Pay for wearing radiation-measuring devices for Laboratory and all-tier cost-type subcontract employees.
(b) Costs incurred in connection with the generation, transmission (e.g., mail, Federal Express) and retention of any documents owned by the Contractor as defined in Clause H.22.
CLAUSE H.5 - EFFECTIVE DATES FOR FAR 31.205-47 - COSTS RELATED TO LEGAL AND OTHER PROCEEDINGS
Notwithstanding the clause of this contract entitled “DEAR 970.5231-4 - PREEXISTING CONDITIONS”, the provisions of "FAR 31.205-47 - COSTS RELATED TO LEGAL AND OTHER PROCEEDINGS” shall be effective as of the date of this modification except as follows:
(1) For proceedings related to a violation of, or failure to comply with, a Federal or State statute or regulation to the extent provided in the Major Fraud Act of 1988 (Public Law 100-700);
(2) For proceedings related to a violation of, or failure to comply with a local or foreign statute or regulation occurring after the effective date of Contract Modification No. 219 (January 1, 1997); and
(3) Suits brought by employees or ex-employees of the Contractor under Section 2 of the Major Fraud Act of 1988 after the effective date of Contract Modification No. 219 (January 1, 1997).
CLAUSE H.6 - RESERVED
CLAUSE H.7 - PRIVACY ACT RECORDS
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a (Public Law 93-579) and implementing DOE Regulations (10 CFR 1008), the Contractor shall maintain the following "Systems of Records" on individuals in order to accomplish the United States Department of Energy functions:
(a) "Personnel Radiation Exposure Records" (DOE-35) respecting Contractor employees, DOE employees, and visitors to the contract site.
(b) “Medical History System” (DOE-33) respecting DOE employees.
The parenthetical Department of Energy number designations for each system of records refers to the official "System of Records" number published by the United States Department of Energy in the Federal Register pursuant to the Privacy Act.
CLAUSE H.8 - INTER-CONTRACTOR PURCHASES
Inter-Contractor purchases, as defined in AL 98-03, paragraph III, shall conform to the principles contained in paragraphs IV.A.1-3, and 5 of AL 98-03. In paragraph IV.A.3 and elsewhere in AL 98-03, the dollar threshold $100,000 is changed to read $250,000.
CLAUSE H.9 - DEAR 970.2210 SERVICE CONTRACT ACT OF 1965 (41 U.S.C. 351)
The Service Contract Act of 1965 is not applicable to this contract. However, subcontracts awarded by the Contractor are subject to the Act to the same extent and under the same conditions as contracts awarded by DOE. Accordingly, except as otherwise approved, in writing, by the Contracting Officer, the Contractor will insert the appropriate "Service Contract Act" clause and applicable wage determinations in subcontracts the principal purpose of which is to furnish services through the use of service employees. The Contractor and the Contracting Officer shall develop a procedure whereby DOE will determine if the Service Contract Act is applicable to particular subcontracts.
CLAUSE H.10 - DEAR 970.2206 WALSH-HEALY PUBLIC CONTRACTS ACT
Except as otherwise may be approved, in writing, by the Contracting Officer, the Contractor agrees to insert the following provision in Purchase Orders and subcontracts under this contract. "If this contract is for the manufacture or furnishing of materials, supplies, articles, or equipment in an amount which exceeds or may exceed $10,000.00 and is otherwise subject to the Walsh-Healy Public Contracts Act, as amended (41 U.S. Code 35-45), there are hereby incorporated by reference all representations and stipulations required by said Act and regulations issued thereunder by the Secretary of Labor, such representations and stipulations being subject to all applicable rulings and interpretations of the Secretary of Labor which are now or may hereafter be in effect."
CLAUSE H.11 - RESERVED
CLAUSE H.12 - CONTRACTOR CORPORATE OFFICE EXPENSES
(a) Pursuant to FAR 31.2, Cost Accounting Standards, and DEAR 970.3102-3-70, the Contractor shall prepare and submit a detailed Corporate Office Expense proposal no later than 120 days prior to the beginning of the contract for the first nine month period. Thereafter, a Corporate Office Expense proposal shall be submitted for review no later than 120 days prior to the beginning of each of URA’s fiscal years beginning October 1, 2002 and shall cover the full twelve months. This proposal shall identify the estimated allocable portion of the Contractor’s Corporate Office Expenses for the Contracting Officer’s review, including a certification that the cost proposal excludes unallowable costs. After review of each detailed proposal, the Parties shall negotiate a maximum predetermined fixed amount of Corporate Office Expenses for the nine month period beginning January 1, 2002 through September 30, 2002 and for each subsequent fiscal year. The contract shall be modified to include in paragraph (b) each agreed to maximum predetermined fixed amount. Within 120 days after the end of each fiscal year, or other agreed to time period, the Contractor shall submit for the Contracting Officer’s review and approval, a submission identifying the actual allowable incurred costs. The submission shall be in a format similar to the cost proposal described above unless otherwise agreed to by the Parties. The Contractor’s maximum predetermined fixed amount for Corporate Office Expenses shall be paid to the Contractor in equal monthly installments, at the end of each month. The maximum predetermined fixed amount shall be subject to downward adjustment to the extent that the actual allowable incurred costs for Corporate Office Expenses are less than the maximum predetermined fixed amount for each period specified herein. Any payment of Corporate Office Expenses in excess of the actual allowable incurred costs for corporate office expenses shall be offset by the Government against payments due under the contract. There shall be no upward adjustment if the actual allowable incurred cost for Corporate Office Expenses for each period exceeds the maximum predetermined fixed amount. In the event the Contractor is awarded a new contract, then the Corporate Office Expenses will be allocated pursuant to the applicable cost principles and Cost Accounting Standards. The maximum predetermined fixed amount will also be subject to appropriate adjustment if the Contract is terminated pursuant to CLAUSE I.55 – TERMINATION (SEP 1996) (MODIFIED BY DEAR 970.4905-1) (DEC 2000).
(b) The maximum predetermined fixed amount of Corporate Office Expenses for the nine month period beginning January 1, 2002 through September 30, 2002 is $1,512,000.
CLAUSE H.13 - PERFORMANCE MEASURE REVIEW
(a) In accordance with clause I-81A - TOTAL AVAILABLE FEE, BASE FEE AMOUNT AND PERFORMANCE FEE AMOUNT, the Parties agree to annually review the performance measures and self-assessment requirements contained in Part III, Attachment J.2, Appendix B and to modify them upon the agreement of the Parties; provided, however, that if the Parties cannot reach agreement on all the performance measures and self-assessment requirements for the next period, the Contracting Officer shall have the right to establish reasonable new performance measures and self-assessment requirements and/or to modify and/or delete existing performance measures and self-assessment requirements, subject to the provisions of paragraph (b) below. It is expected that the performance measures and self-assessment requirements will be modified by the Contractor and the DOE as new areas of emphasis or priorities emerge which the Parties may agree warrant recognition in the performance-based management system.
(b) In the event the Contracting Officer decides
to exercise the right set forth in paragraph (a) above, he/she will notify the
Contractor, in writing, of the intended decision and that a revision to Part
III, Attachment J.2, Appendix B, containing the revised performance measures
and/or self-assessment requirements will be issued to the Contractor within ten
(10) working days.
CLAUSE H.14 - USE OF OBJECTIVE STANDARDS OF PERFORMANCE, SELF-ASSESSMENT AND PERFORMANCE EVALUATION
(a) The Parties agree that the Contractor will utilize a performance-based management system for Laboratory oversight. The performance-based management system will include the use of clear and reasonable performance measures agreed to, in advance, as standards against which the Contractor's overall performance of scientific, technical, operational, and/or managerial obligations under this contract will be assessed.
(b) In accordance with paragraph (f) of clause I-81A - TOTAL AVAILABLE FEE, BASE FEE AMOUNT AND PERFORMANCE FEE AMOUNT and Part III, Section J.2, Appendix B, the Contractor will conduct an on-going self-assessment process, including self-assessments performed at the Laboratory, as the principal means by which the Contractor will evaluate its compliance with the performance measures which are contained in Part III, Attachment J.2, Appendix B, attached hereto and made a part hereof.
(c) Further, the Parties agree to utilize a process described in clause I-81A - TOTAL AVAILABLE FEE, BASE FEE AMOUNT AND PERFORMANCE FEE AMOUNT and Appendix B to evaluate the performance of the Laboratory. The Parties further agree that the evaluation process, described in Part III, Attachment J.2, Appendix B, will be reviewed annually and modified, if necessary, by agreement of the Parties.
(d) Annually, the Contracting Officer shall provide a written
assessment of the Contractor's performance hereunder to the Contractor which
shall be based upon the terms and conditions of this Contract including the
evaluation process described in Part III, Attachment J.2, Appendix B, and the
Contracting Officer's evaluation of the Contractor's self-assessment.
(e) The Contractor agrees to comply with direction or respond with corrective action resulting from performance deficiencies identified as part of DOE's evaluation of demonstrated performance against the criteria and measurements contained in Part III, Section J.2, Appendix B.
CLAUSE H.15 - CAP ON LIABILITY
(a) The Parties have agreed that the Contractor’s liability for certain obligations it has
assumed under this contract shall be limited as set forth in paragraph (b) below. These limitations or caps shall only apply to the obligations the Contractor has assumed pursuant to Clause I.98 (j)(2) with respect to unallowable punitive damages, and Clause I.115 (f)(1)(i)(C), and shall apply on a cumulative per calendar year basis. In addition, the determination of which cap will apply will be based on a determination by the Contracting Officer of the year in which the Contractor’s act or failure to act was the proximate cause of the liability assumed by the Contractor pursuant to the provisions of the Clauses enumerated above. Provided, further that in the event the Contractor’s act or failure to act overlaps more than one year, then the applicable cap will be the cap for the last year in which the Contractor’s act or failure to act occurred. Provided, however, that if the last act or failure to act occurs after December 31, 2006, (if this contract is further extended) then the cap for the year January 1, 2006 through December 31, 2006 shall apply. Finally, the caps set forth in paragraph (b) below shall only apply if the Contractor establishes that willful misconduct or lack of good faith on the part of its managerial personnel as defined in Clause I.115 was not a contributing factor with regard to liabilities it has incurred under Clause I.98 (j)(2).
(b) The liability cap for each calendar year of this contract extension will be as stated below. Except as otherwise provided in paragraph (a) above, and notwithstanding any other provision of this contract to the contrary, if the cap is reached for any year, as set forth below, the Contractor shall have no further responsibility for the costs of the liabilities it has assumed pursuant to Clause I.98 (j)(2) with respect to unallowable punitive damages, and Clause I.115 (f)(1)(i)(C), and all costs in excess of the cap for the applicable year for said liabilities shall be borne by the Government.
For each calendar year 2002-2006, the Contractor will be responsible for the first $200,000. The next $3,000,000 will be shared by the Contractor and the Government on a fifty-fifty per dollar basis. Accordingly, the total cap shall be $3,200,000 for each calendar year.
CLAUSE H.16 - RESERVED
CLAUSE H.17 - NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS - SENSE OF CONGRESS
It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this award should be American-made.
CLAUSE H.18 - LOBBYING RESTRICTION (ENERGY AND WATER DEVELOPMENT APPROPRIATIONS ACT, 2002)
The contractor agrees that none of the funds obligated on this award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation.
CLAUSE H.19 - RESERVED
CLAUSE H. 20 - TRAVEL RESTRICTIONS (ALTERNATE I) (APR 2000)
(a) For contractor travel expenses incurred on or after October 1, 2001, a ceiling limitation of TBD shall apply to all reimbursements made for contractor travel expenses funded by the Energy and Water Development Appropriations Act under this contract, except as provided in paragraph (b) below. Expended funds which exceed the established ceiling in this paragraph will be unallowable unless otherwise authorized by the contracting officer. (Applicable only to FY 2002 Energy and Water Development Appropriation Act Funds.)
(b) All contractor travel costs associated with the Spallation Neutron Source are charged only against the travel ceiling assigned to the Oak Ridge National Laboratory (ORNL) and not to the contractor (except for ORNL) who actually employs the traveler.
(c) Some travel costs are exempt from the ceiling, examples are:
(i) Travel performed under work for others agreements;
(ii) Travel of subcontractors;
(iii) Travel of non-DOE users to participate in experiments at DOE user facilities;
(iv) Travel costs of travel management centers;
(v) Travel costs funded by other appropriations;
(vi) Relocation costs;
(vii) Costs of workshops/seminars (other than travel costs), such as, rental of meeting rooms, public address equipment, speakers' fees;
(viii) Registration costs of training classes;
(ix) Travel expenses within the Laboratory Directed Research and Development program; and
(x) Travel associated with recruitment.
(d) Notwithstanding any other provisions of the contract or the source of funding, the contractor further agrees that none of the funds obligated under the contract may be used to reimburse employee travel costs incurred on or after October 1, 2001 and before October 1, 2002 which exceed the rates and amounts that apply to federal employees under subchapter I of Chapter 57 of Title 5, United States Code. Costs which exceed these rates and amounts will be unallowable. This restriction is in addition to those prescribed elsewhere in statute or regulation.
(e) Costs incurred for lodging, meals, and incidental expenses are considered reasonable and allowable to the extent that they do not exceed the maximum per diem rates in effect at the time of travel as set forth in:
(i) Federal Travel Regulations (FTR) for travel within the 48 states;
(ii) Joint Travel Regulations (JTR) for travel in Alaska, Hawaii, the Commonwealth of Puerto Rico, and territories and possessions of the United States; or
(iii) Standardized Regulations (SR) for travel allowances in foreign areas.
(f) Subparagraph (d) of AL 2000-11, Part 4, Travel Costs, does not incorporate the regulations cited above in their entirety. Only the coverages in the referenced regulations addressing the maximum per diem rates, the definitions of lodging, meals, and incidental expenses, and special or unusual situations are applicable to contractor travel.
(g) Airfare costs in excess of the lowest customary standard, coach, or equivalent airfare offered during normal business hours are unallowable except when such accommodations require circuitous routing, require travel during unreasonable hours, excessively prolong travel, result in increased cost that would offset transportation savings, are not reasonably adequate for the physical or medical needs of the traveler, or are not reasonably available to meet mission requirements. However, in order for airfare costs in excess of the above standard airfare to be allowable, the applicable condition(s) set forth above must be documented and justified.
CLAUSE H.21 - CONSULTATION REGARDING PERSONNEL CHANGES
The Contractor agrees to consult with the Contracting Officer, prior to removing, replacing or diverting any of the personnel occupying the positions listed below:
1. Dr. Bruce Chrisman, Associate Director for Administration
2. Mr. George Robertson, Associate Director for Operations Support
3. Dr. Stephen Holmes, Associate Director for Accelerators
4. Dr. Michael Shaevitz, Associate Director for Research.
CLAUSE H.22 - RECORDS NOT ACQUIRED OR GENERATED UNDER THIS CONTRACT
Correspondence (including privileged or confidential records, including legal files) between the Association's corporate offices (including governing bodies) and the Laboratory, as well as records of this type related to the functions of the Association's corporate offices and governing bodies are not considered records acquired or generated under this contract and are not covered by the provisions of Clause I.80.