Section I – Contract Clauses

 

Clause                        FAR/DEAR                        Title of Clause

   No.                        Reference   

 

I.1            FAR 52.202-1            Definitions (MAR 2001); Modified by

                                    DEAR 902.000 (DEC 2000)

I.2            FAR 52.203-3            Gratuities (APR 1984)

I.3            FAR 52.203-5            Covenant Against Contingent Fees

                                    (APR 1984)

I.4            FAR 52.203-6            Restrictions on Subcontractor Sales to  the Government (JUL 1995)

I.5            FAR 52.203-7            Anti-Kickback Procedures (JUL 1995)

I.6            FAR 52.203-8            Cancellation Rescission, and Recovery of Funds for Illegal or Improper Activity

                                    (JAN 1997)

I.7            FAR 52.203-10            Price or Fee Adjustment for Illegal or Improper Activity (JAN 1997)

I.8            FAR 52.203.12            Limitation on Payments to Influence Certain Federal Transactions (JUN 1997)

I.9            FAR 52.204-4            Printed or Copied Double-Sided on Recycled

                                    Paper (AUG 2000)

I.10            FAR 52.509-6            Protecting the Government's Interest when Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment

                                    (JUL 1995)

I.11            FAR 52.211-5            Material Requirements (AUG 2000)

I.12            FAR 52.215-8            Order of Precedence – Uniform Contract Format (OCT 1997)

I.13            FAR 52.215-12            Subcontractor Cost or Pricing Data

                                    (OCT 1997)

I.14            FAR 52.215-13            Subcontractor Cost or Pricing Data-Modifications (OCT 1997)

I.15            FAR-52.219-8            Utilization of Small Business

                                    Concerns (OCT 2000)

I.16            FAR 52.219-9            Small Business Subcontracting

                                    Plan (OCT 2000)

I.17            FAR 52.219-16            Liquidated Damages – Subcontracting

                                    Plan (JAN 1999)

I.19            FAR 52.222-1            Notice to the Government of Labor

                                    Disputes (FEB 1997)

I.20            FAR 52.222-3            Convict Labor (AUG 1996)

I.21            FAR 52.222-4            Contract Work Hours and Safety

                                    Standards Act – Overtime Compensation

                                    (SEPT 2000)

I.22            FAR 52.222-11            Subcontracts (Labor Standards)

                                    (FEB 1988) (Deviation)

I.22A            FAR 52.222-19            Child Labor – Cooperation with

                                    Authorities and Remedies (FEB 2001)

I.23            FAR 52.222-21            Prohibition of Segregated Facilities

                                    (FEB 1999)

I.24            FAR 52.222-26            Equal Opportunity (FEB 1999)

I.25            FAR 52.222-29            Notification of Visa Denial (FEB 1999)

I.26            FAR 52.222-35            Affirmative Action for Disabled

                                    Veterans and Veterans of the

                                    Vietnam Era (APR 1998)

I.27            FAR 52.222-36            Affirmative Action for Workers

                                    With Disabilities (JUN 1998)

I.28            FAR 52.222-37            Employment Reports on Disabled

                                    Veterans and Veterans of the

                                    Vietnam Era (JAN 1999)

I.29            FAR 52.223-5            Pollution Prevention and Right-to-Know

                                    Information (APR)1996)

I.30            FAR 52.223-12            Refrigeration Equipment and Air

                                    Conditioners (MAY 1995)

I.31            FAR 52.224-1            Privacy Act Notification (APR 1984)

I.32            FAR 52.224-2            Privacy Act (APR 1984)

I.33            FAR 52.225-1            Buy American Act – Balance of

                                    Payments Program – Supplies (FEB 2000)

I.34            FAR 52.225-11            Buy American Act – Balance of Payments

                                    Program – Construction Materials Under

                                    Trade Agreements (FEB 2000)

I.35            FAR 52.225-13            Restrictions on Certain Foreign

                                    Purchases (JUL 2000)

I.36                              Reserved

I.37            FAR 52.229-8            Taxes – Foreign Cost-Reimbursement

                                    Contracts (MAR 1990)

I.38            FAR 52.230-2            Cost Accounting Standards (APR 1998)

I.39            FAR 52.230-6            Administration of Cost Accounting

                                    Standards (NOV 1999)

I.40            FAR 52-232-17            Interest (JUN 1996)

I.41            FAR 52.232-18            Availability of Funds (APR 1984)

I.42            FAR 52.232-24            Prohibition of Assignment of Claims

                                    (JAN 1986)

I.43            FAR 52.233-1            Disputes (DEC 1998) (ALTERNATE I)

                                    (DEC 1991)

I.44            FAR 52.233-3            Protest After Award (AUG 1996)

                                    (ALTERNATE I) (JUNE 1985)

I.45            FAR 52.236-8            Other Contracts (APR 1984)

I.46            FAR 52.237-3            Continuity of Service (JAN 1991)

I.47            FAR 52.242-1            Notice of Intent to Disallow Costs (APR 1984)

I.48            FAR 52.242-13            Bankruptcy (JUL 1995)

I.49            FAR 52.244-5            Competition in Subcontracting (DEC 1996)

I.50            FAR 52.244-6            Subcontractors for Commercial

                                    Items (MAR 2001)

I.51            FAR 52.247-1            Commercial Bill of Lading Notations

                                    (APR 1984)

I.52            FAR 52.247-63            Preference for U.S. Flag Air Carriers

                                    (JAN 1997)

I.53            FAR 52.247-64            Preference for Privately-Owned U.S.-Flag

                                    Commercial Vessels (JUN 2000)

I.54                        FAR 52.247-67                        Submission of Commercial Transportation

                                    Bills to The General Services Administration

                                    For Audit (JUN 1997)

I.55            FAR 52.249-6            Termination (Cost-Reimbursement)

                                    (SEP 1996); Modified by Dear 970.4950-1

                                    (DEC 2000)

I.56            FAR 52.249-14            Excusable Delays (APR 1984)

I.57            FAR 52.251-1            Government Supply Sources

                                    (APR 1984) (Deviation)

I.58            FAR 52.251-2            Interagency Fleet Management System

                                    Vehicles and Related Services (JAN 1991)

I.59            FAR 52.252-6            Authorized Deviations in Clauses (APR 1984)

I.60            FAR 52.253-1            Computer Generated Forms (JAN 1991)

I.61            DEAR 952.203.70            Whistleblower Protection for Contractor

                                    Employees (DEC 2000)

I.62            DEAR 952.204-71            Sensitive Foreign Nation Controls (APR 1994)

I.63            DEAR 952.204-72            Disclosure of Information (APR 1994)

I.64            DEAR 952.204-75            Public Affairs (DEC 2000)

I.65            DEAR 952.208-7            Tagging of Leased Vehicles (APR 1994)

I.66            DEAR 952.209-72            Organizational Conflicts of Interest

                                    (JUN 1997) (Alternate I) (JUN 1997)

I.67            DEAR 952.211-71            Priorities and Allocations (Domestic Energy Supplies) (Alternate I) (JUN 1996)

I.68            DEAR 952.211-71            Priorities and Allocations (Atomic Energy)

                                    (JUN 1996)

I.69            DEAR 952.215-70            Key Personnel (DEC 2000)

I.70            DEAR 952.217-70            Acquisition of Real Property (APR 1984)

I.71            DEAR 952.223-75            Preservation of Individual Occupational

                                    Radiation Exposure Records (APR 1984)

I.72            DEAR 952.224-70            Paperwork Reduction Act (APR 1994)

I.73            DEAR 952.226-74            Displaces Employee Hiring

                                    Preference (JUN 1997)

I.74            DEAR 952.250-70            Nuclear Hazards Indeminity Agreement

                                    (JUN 1996)

I.75            DEAR 952.251-70            Contractor Employee Travel

                                    Discounts (DEC 2000)

I.76            DEAR 970.5203-1            Management Controls (DEC 2000)

I.77            DEAR 970.5203-2            Performance Improvement and

                                    Collaboration (DEC 2000)

I.78            DEAR 970.5203-3            Contractor's Organization (DEC 2000)

                                    (Deviation)

I.79            DEAR 970.5204-2            Laws, Regulations, and DOE Directives

                                    (DEC 2000) (Deviation)

I.80            DEAR 970.5204-3            Access to and Ownership of

                                    Records (DEC 2000)

I.81            DEAR 970.5208-1            Printing (DEC 2000)

I.81A            DEAR 970.5215-1            Total Available Fee: Base Fee

                                    Amount and Performance Fee Amount

                                    (DEC 2000) (ALTERNATES II and III)

                                    (DEC 2000)

I.82            DEAR 970.5215-2            Make-Or-Buy Plan (DEC 2000)

I.83            DEAR 970,5215-3            Conditional Payment of Fee, Profit,

                                    Or Incentives (DEC 2000) (ALTERNATE I)

                                    (DEC 2000)

I.84            DEAR 970.5222-1            Collective Bargaining Agreements-Management and Operating Contracts

                                    (DEC 2000)

I.85            DEAR 970.5222-2            Overtime Management (DEC 2000)

I.86            DEAR 970.5223-1            Integration of Environment, Safety, and

                                    Health Into Work Planning and Execution

                                    (DEC 2000)

I.87            DEAR 970.5223-2            Acquisition and Use of Environmentally

                                    Preferable Products and Services (DEC 2000)

I.88            DEAR 970.5223-4            Workplace Substance Abuse Programs

                                    At DOE Sites (DEC 2000)

I.89            DEAR 970.5226-1            Diversity Plan (DEC 2000)

I.90            DEAR 970.5226-3            Community Commitment (DEC 2000)

I.91            DEAR 970.5227-2            Rights in Data – Technology Transfer

                                    (DEC 2000)

I.92            DEAR 970.5227-3            Technology Transfer Mission (DEC 2000)

                                    (Deviation)

I.93            DEAR 970.5227-4            Authorization and Consent (DEC 2000)

I.94            DEAR 970.5227-5            Notice and Assistance Regarding Patent

                                    And Copyright Infringement (DEC 2000)

I.95            DEAR 970.5227-6            Patent Indemnity – Subcontracts (DEC 2000)

I.96            DEAR 970.5227-8            Refund of Rayalties (DEC 2000) (Deviation)

I.97            DEAR 970.5227-10            Patent Rights – Management and Operating

                                    Contracts, Nonprofit Organization or Small

                                    Business Firm Contractor (DEC 2000)

I.98            DEAR 970.5228-1            Insurance – Litigation and Claims (DEC 2000)

                                    (Deviation) (Includes modifications final rul dated 1/18/01)

I.99            DEAR 970.5229-1            State and Local Taxes (DEC 2000)

I.100            DEAR 970.5231-4            Preexisting Conditions (DEC 2000)

                                    (Alternate I) (DEC 2000)

I.101            DEAR 970.5232-1            Reduction or Suspension of Advance,

                                    Partial, or Progress Payments (DEC 2000)

I.102            DEAR 970.5232-2            Payments and Advances (DEC 2000) (Alternates II and III) (DEC 2000) (Deviation)

I.103            DEAR 970.5232-3            Accounts, Records, and Inspection

                                    (DEC 2000) (Alternate II) (DEC 2000)

I.104            DEAR 970.5232-4            Obligation of Funds (DEC 2000)

I.105            DEAR 970.5232-5            Liability with Respect to Cost Accounting

                                    Standards (DEC 2000)

I.106            DEAR 970.5232-6            Work for Others Funding Authorization

                                    (DEC 2000)

I.107            DEAR 970.5232-7            Financial Management System (DEC 2000)

I.108            DEAR 970.5232-8            Integrated Accounting (DEC 2000)

I.109            DEAR 970.5235-1            Federally Funded Research and Development Center Sponsoring Agreement (DEC 2000)

!.110            DEAR 970.5236-1            Government Facility Subcontract Approval (DEC 2000) (Deviation)

I.111            DEAR 970.5237-2            Facilities Management (DEC 2000) (Deviation)

I.112            DEAR 970.5242-1            Penalties for Unallowable Costs (DEC 2000)

I.113            DEAR 970.5243-1            Changes (DEC 2000)

I.114            DEAR 970.5244-1            Contractor Purchasing System (DEC 2000) (includes modifications in final rule dated 1/18/01) (Deviation)

I.115            DEAR 970.4245-1            Property (DEC 2000) (Alternate I) (DEC 2000)

 

 

Contract Clauses

 

CLAUSE I.1 - FAR 52.202-1  DEFINITIONS (MAR 2001); MODIFIED BY DEAR 902.200 (DEC 2000)

 

(a)       Head of Agency means the Secretary, Deputy Secretary or Under Secretary of the Department of Energy and the Chairman, Federal Energy Regulatory Commission.

 

(b)            "Commercial component" means any component that is a commercial item.

 

(c)            "Commercial item" means --

 

            (1)       Any item, other than real property, that is of a type customarily used for nongovernmental purposes and that --

 

                 (i)     Has been sold, leased, or licensed to the general public; or

 

                 (ii)     Has been offered for sale, lease, or license to the general public;

 

            (2)            Any item that evolved from an item described in paragraph (c)(1) of this clause through advances in technology or performance and that is not yet available in the commercial marketplace, but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Government solicitation;

 

            (3)            Any item that would satisfy a criterion expressed in paragraphs (c)(1) or (c)(2) of this clause, but for --

 

                        (i)            Modifications of a type customarily available in the commercial marketplace; or

 

                        (ii)            Minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements.  "Minor" modifications means modifications that do not significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process.  Factors to be considered in determining whether a modification is minor include the value and size of the modification and the comparative value and size of the final product.  Dollar values and percentages may be used as guideposts, but are not conclusive evidence that a modification is minor;

 

            (4)            Any combination of items meeting the requirements of paragraphs (c)(1), (2), (3), or (5) of this clause that are of a type customarily combined and sold in combination to the general public;

 

            (5)            Installation services, maintenance services, repair services, training services, and other services if such services are procured for support of an item referred to in paragraphs (c)(1), (2), (3), or (4) of this clause, and if the source of such services --

                       

                        (i)            Offers such services to the general public and the Federal Government contemporaneously and under similar terms and conditions; and

 

                        (ii)            Offers to use the same work force for providing the Federal Government with such services as the source uses for providing such services to the general public;

 

            (6)            Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed under standard commercial terms and conditions.  This does not include services that are sold based on hourly rates without an established catalog or market price for a specific service performed;

 

            (7)            Any item, combination of items, or service referred to in subparagraphs (c)(1) through (c)(6), notwithstanding the fact that the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates of a Contractor; or

 

            (8)            A nondevelopmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local Governments.

 

(d)            "Component" means any item supplied to the Government as part of an end item or of another component, except that for use in 52.225-9, and 52.225-11 see the definitions in 52.225-9(a) and 52.225-11(a).

 

(e)            "Contracting Officer" means a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings.  The term includes certain authorized representatives of the Contracting Officer acting within the limits of their authority as delegated by the Contracting Officer.

 

(f)            "Nondevelopmental item" means --

 

            (1)            Any previously developed item of supply used exclusively for governmental purposes by a Federal agency, a State or local government, or a foreign government with which the United States has a mutual defense cooperation agreement;

 

            (2)            Any item described in paragraph (f)(1) of this definition that requires only minor modification or modifications of a type customarily available in the commercial marketplace in order to meet the requirements of the procuring department or agency; or

 

(3)              Any item of supply being produced that does not meet the requirements of paragraph (f)(1) or (f)(2) solely because the item is not yet in use.

 

(g)       Except as otherwise provided in this contract, the term "subcontracts" includes, but is not limited to, purchase orders and changes and modifications to purchase orders under this contract.

 

(h)        The term “DOE” means the Department of Energy and “FERC” means the Federal Energy Regulatory Commission.

 

(i)            "Contractor” or “Association” means “The Universities Research Association, Inc.”. 

 

(j)            "Laboratory" means the Fermi National Accelerator Laboratory (Fermilab) consisting of the high energy proton accelerator, together with its related facilities and structures as well as the Government-owned land, and such other items of property as the Parties may mutually agree in writing from time to time should be considered part of the "Laboratory".

 

(k)        The term "someone acting as the Laboratory Director" means the person appointed as Laboratory Director, or a person specified, in writing, to have authority to act in the absence of the Laboratory Director.

 

(l)         The term "DOE Directive" means DOE Orders and Notices, Modifications thereto, and other forms of directives, including for purposes of this contract those portions of DOE's Accounting and Procedures Handbook applicable to integrated Contractors, issued by DOE.  The term does not include temporary written instructions by the Contracting Officer for the purpose of addressing short-term or urgent DOE concerns relating to health, safety, or the environment.

 

(m)      The term "overseers" means a member of the Board of Overseers for the Fermilab.

 

 

CLAUSE I.2 - FAR 52.203-3  GRATUITIES (APR 1984)

 

(a)       The right of the Contractor to proceed may be terminated by written notice if, after notice and hearing, the agency head or a designee determines that the Contractor, its agent, or another representative:

            (1)             Offered or gave a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of the Government; and

 

            (2)             Intended, by the gratuity, to obtain a contract or favorable treatment under a contract.

 

(b)       The facts supporting this determination may be reviewed by any court having lawful jurisdiction.

 

(c)        If this contract is terminated under paragraph (a) above, the Government is entitled:

 

            (1)             To pursue the same remedies as in a breach of the contract; and

 

            (2)            In addition to any other damages provided by law, to exemplary damages of not less than three (3) nor more than ten (10) times the cost incurred by the Contractor in giving gratuities to the person concerned, as determined by the agency head or a designee.  (This subparagraph (c)(2) is applicable only if this contract uses money appropriated to the Department of Defense.)

 

(d)       The rights and remedies of the Government provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.

 

 

CLAUSE I.3 - FAR 52.203-5  COVENANT AGAINST CONTINGENT FEES (APR 1984)

 

(a)       The Contractor warrants that no person or agency has been employed or retained to solicit or obtain this contract upon an agreement or understanding for a contingent fee, except a bona fide employee or agency.  For breach or violation of this warranty, the Government shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of the contingent fee.

 

(b)       "Bona fide agency", as used in this clause, means an established commercial or selling agency, maintained by a Contractor for the purpose of securing business, that neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts nor holds itself out as being able to obtain any Government contract or contracts through improper influence.

 

            "Bona fide employee", as used in this clause, means a person, employed by a Contractor and subject to the Contractor's supervision and control as to time, place, and manner of performance, who neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts nor holds out as being able to obtain any Government contract or contracts through improper influence.

           

            "Contingent fee", as used in this clause, means any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing a Government contract.

 

            "Improper influence", as used in this clause, means any influence that induces or tends to induce a Government employee or officer to give consideration or to act regarding a Government contract on any basis other than the merits of the matter.

 

(c)    Subcontracts and Purchase Orders.  Unless otherwise authorized by the Contracting Officer, in writing, the Contractor shall cause provisions similar to the foregoing to be inserted in all subcontracts and purchase orders entered into under this contract.

 

 

CLAUSE I.4 - FAR 52.203‑6  RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (JUL 1995)

 

(a)       Except as provided in paragraph (b) below, the Contractor shall not enter into any agreement with an actual or prospective subcontractor, nor otherwise act in any manner, which has or may have the effect of restricting sales by such subcontractors directly to the Government of any item or process (including computer software) made or furnished by the subcontractor under this contract or under any follow-on production contract.

 

(b)       The prohibition in paragraph (a) above does not preclude the Contractor from asserting rights that are otherwise authorized by law or regulation.

 

(c)        The Contractor agrees to incorporate the substance of this Clause, including this paragraph (c), in all subcontracts under this contract which exceed $100,000.

 

 

CLAUSE I.5 - FAR 52.203-7  ANTI-KICKBACK PROCEDURES (JUL 1995)

 

(a)            Definitions.

 

            (1)             "Kickback," as used in this clause, means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to any prime Contractor, prime Contractor employee, subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or in connection with a subcontract relating to a prime contract.

 

            (2)             "Person," as used in this clause, means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual.

 

            (3)             "Prime Contract," as used in this clause, means a contract or contractual action entered into by the United States for the purpose of obtaining supplies, materials, equipment, or services of any kind.

 

            (4)             "Prime Contractor," as used in this clause, means a person who has entered into a prime contract with the United States.

 

            (5)             "Prime Contractor Employee," as used in this clause, means any officer, partner, employee, or agent of a prime Contractor.

 

            (6)             "Subcontract," as used in this clause, means a contract or contractual action entered into by a prime Contractor or subcontractor for the purpose of obtaining supplies, materials, equipment, or services of any kind under a prime contract.

 

            (7)             "Subcontractor," as used in this clause, (1) means any person, other than the prime Contractor, who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with such prime contract, and (2) includes any person who offers to furnish or furnishes general supplies to the prime Contractor or a higher-tier subcontractor.

 

            (8)             "Subcontractor Employee," as used in this clause, means any officer, partner, employee, or agent of a subcontractor.

 

(b)       The Anti-Kickback Act of 1986 (41 U.S.C. 51‑58) (the Act), prohibits any person from --

 

            (1)             Providing or attempting to provide or offering to provide any kickback;

 

            (2)             Soliciting, accepting, or attempting to accept any kickback; or

 

            (3)             Including, directly or indirectly, the amount of any kickback in the contract price charged by a prime Contractor to the United States or in the contract price charged by a subcontractor to a prime Contractor or higher-tier subcontractor.

 

(c)        (1)             The Contractor shall have in place and follow reasonable procedures designed to prevent and detect possible violations described in paragraph (b) of this clause in its own operations and direct business relationships.

 

            (2)             When the Contractor has reasonable grounds to believe that a violation described in paragraph (b) of this clause may have occurred, the Contractor shall promptly report, in writing, the possible violation.  Such reports shall be made to the inspector general of the contracting agency, the head of the contracting agency if the agency does not have an inspector general, or the Department of Justice.

 

            (3)             The Contractor shall cooperate fully with any Federal agency investigating a possible violation described in paragraph (b) of this clause.

 

            (4)             The Contracting Officer may (i) offset the amount of the kickback against any monies owed by the United States under the prime contract and/or (ii) direct that the prime Contractor withhold from sums owed a subcontractor under the prime contract, the amount of the kickback.  The Contracting Officer may order that monies withheld under subdivision (c)(4)(ii) of this clause be paid over to the Government unless the Government has already offset those monies under subdivision (c)(4)(i) of this Clause.  In either case, the prime Contractor shall notify the Contracting Officer when the monies are withheld.

 

            (5)             The Contractor agrees to incorporate the substance of this clause, including subparagraph (c)(5) but excepting subparagraph (c)(1), in all subcontracts under this contract.

 

 

CLAUSE I.6 - FAR 52.203-8  CANCELLATION, RESCISSION, AND RECOVERY OF FUNDS FOR ILLEGAL OR IMPROPER ACTIVITY (JAN 1997)

 

(a)       If the Government receives information that a Contractor or a person has engaged in conduct constituting a violation of subsection (a), (b), (c), or (d) of Section 27 of the Office of Federal Procurement Policy Act (41 U.S.C. 423) (the Act), as amended by Section 4304 of the National Defense Authorization Act for Fiscal Year 1996 (Pub.L. 104-106), the Government may --

 

(1)              Cancel the solicitation, if the contract has not yet been awarded or issued; or

 

(2)            Rescind the contract with respect to which --

 

(i)            The Contractor or someone acting for the Contractor has been convicted for an offense where the conduct constitutes a violation of subsection 27 (a) or (b) of the Act for the purpose of either --

 

            (A)            Exchanging the information covered by such subsections for             anything of value; or

                       

                        (B)            Obtaining or giving anyone a competitive advantage in the award of a Federal agency procurement contract; or

(ii)            The head of the contracting activity has determined, based upon a preponderance of the evidence, that the Contractor or someone acting for the Contractor has engaged in conduct constituting an offense punishable under subsection 27 (e)(1) of the Act.

 

(b)       If the Government rescinds the contract under paragraph (a) of this clause, the Government is entitled to recover, in addition to any penalty prescribed by law, the amount expended under the contract.

 

(c)               The rights and remedies of the Government specified herein are not exclusive, and are in addition to any other rights and remedies provided by law, regulation, or under this contract.

 

 

CLAUSE I.7 - FAR 52.203-10  PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER ACTIVITY (JAN 1997)

 

(a)       The Government, at its election, may reduce the price of a fixed-price type contract and the total cost and fee under a cost-type contract by the amount of profit or fee determined as set forth in paragraph (b) of this clause if the head of the contracting activity or designee determines that there was a violation of Subsection 27(a), (b), or (c) of the Office of Federal Procurement Policy Act, as amended (41 U.S.C. 423), as implemented in Section 3.104 of the Federal Acquisition Regulation.

 

(b)       The price or fee reduction referred to in paragraph (a) of this clause shall be --

 

(1)       For cost-plus-fixed-fee contracts, the amount of the fee specified in the contract at the time of award;

 

(2)       For cost-plus-incentive fee contracts, the target fee specified in the contract at the time of award, notwithstanding any minimum fee or "fee floor" specified in the contract;

 

(3)       For cost-plus-award fee contracts --

 

(i)            The base fee established in the contract at the time of contract award;

 

(ii)             If no base fee is specified in the contract, 30 percent of the amount of each award fee otherwise payable to the Contractor for each award fee evaluation period or at each award fee determination point.

 

(4)            For fixed-price-incentive contracts, the Government may --

 

(i)            Reduce the contract target price and contract target profit both by an amount equal to the initial target profit specified in the contract at the time of contract award; or

 

(ii)            If an immediate adjustment to the contract target price and contract target profit would have a significant adverse impact on the incentive price revision relationship under the contract, or adversely affect the contract financing provisions, the Contracting Officer may defer such adjustment until establishment of the total final price of the contract.  The total final price established in accordance with the incentive price revision provisions of the contract shall be reduced by an amount equal to the initial target profit specified in the contract at the time of contract award and such reduced price shall be the total final contract price.

 

(5)       For firm-fixed-price contracts, by 10 percent of the initial contract price or a profit amount determined by the Contracting Officer from records or documents in existence prior to the date of the contract award.

 

(c)        The Government may, at its election, reduce a prime Contractor's price or fee in accordance with the procedures of paragraph (b) of this clause for violations of the Act by its subcontractors by an amount not to exceed the amount of profit or fee reflected in the subcontract at the time the subcontract was first definitively priced.

 

(d)       In addition to the remedies in paragraphs (a) and (c) of this clause, the Government may terminate this contract for default.  The rights and remedies of the Government specified herein are not exclusive, and are in addition to any other rights and remedies provided by law or under this contract.

 

 

CLAUSE I.8 - FAR 52.203-12  LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN  FEDERAL TRANSACTIONS (JUN 1997)

 

(a)            Definitions

 

"Agency," as used in this Clause, means executive agency as defined in 2.101.

"Covered Federal action," as used in this Clause, means any of the following Federal actions:

 

(1)       The awarding of any Federal contract.

 

(2)       The making of any Federal grant.

 

(3)       The making of any Federal loan.

 

(4)       The entering into of any cooperative agreement.

 

(5)       The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

 

"Indian tribe" and "tribal organization," as used in this clause, have the meaning provided in Section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450B) and include Alaskan Natives.

 

"Influencing or attempting to influence," as used in this clause, means making, with the intent to influence, any communication to or appearance before an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any covered Federal action.

 

"Local government," as used in this clause, means a unit of government in a State and, if chartered, established, or otherwise recognized by a State for the performance of a governmental duty, including a local public authority, a special district, an intrastate district, a council of governments, a sponsor group representative organization, and any other instrumentality of a local government.

 

"Officer or employee of an agency," as used in this clause, includes the following individuals who are employed by an agency:

 

(1)       An individual who is appointed to a position in the Government under Title 5, United States Code, including a position under a temporary appointment.

 

(2)       A member of the uniformed services, as defined in Subsection 101(3), Title 37, United States Code.

 

(3)       A special Government employee, as defined in Section 202, Title 18, United States Code.

 

(4)       An individual who is a member of a Federal advisory committee, as defined by the Federal Advisory Committee Act, Title 5, United States Code, Appendix 2. 

 

"Person," as used in this clause, means an individual, corporation, company, association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for profit, or not for profit.  This term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.

 

"Reasonable compensation," as used in this clause, means, with respect to a regularly employed officer or employee of any person, compensation that is consistent with normal compensation for such officer or employee for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal Government.

 

"Reasonable payment," as used in this clause, means, with respect to professional and other technical services, a payment in an amount that is consistent with the amount normally paid for such services in the private sector.

 

"Recipient," as used in this clause, includes the Contractor, and all subcontractors.  This term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.

 

"Regularly employed," as used in this clause, means, with respect to an officer or employee of a person requesting or receiving a Federal contract, an officer or employee who is employed by such person for at least 130 working days within one (1) year immediately preceding the date of the submission that initiates agency consideration of such person for receipt of such contract.  An officer or employee who is employed by such person for less than 130 working days within one (1) year immediately preceding the date of the submission that initiates agency consideration of such person shall be considered to be regularly employed as soon as he or she is employed by such person for 130 working days.

 

"State," as used in this clause, means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a territory or possession of the United States, an agency or instrumentality of a State, and multi-State, regional, or interstate entity having governmental duties and powers.

 

(b)            Prohibitions.

 

(1)       Section 1352 of Title 31, United States Code, among other things, prohibits a recipient of a Federal contract, grant, loan, or cooperative agreement from using appropriated funds to pay any person for influencing, or attempting to influence, an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any of the following covered Federal actions:  the awarding of any Federal contract; the making of any Federal grant; the making of any Federal loan; the entering into of any cooperative agreement; or the modification of any Federal contract, grant, loan, or cooperative agreement.

 

(2)       The Act also requires Contractors to furnish a disclosure if any funds other than Federal appropriated funds (including profit or fee received under a covered Federal transaction) have been paid, or will be paid, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with a Federal contract, grant, loan, or cooperative agreement.

 

(3)       The prohibitions of the Act do not apply under the following conditions:

 

(i)            Agency and legislative liaison by own employees.

 

(A)            The prohibition on the use of appropriated funds, in subparagraph (b)(1) of this clause, does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a covered Federal action if the payment is for agency and legislative liaison activities not directly related to a covered Federal action.

 

(B)              For purposes of subdivision (b)(3)(i)(A) of this clause, providing any information specifically requested by an agency or Congress is permitted at any time.

 

(C)            The following agency and legislative liaison activities are permitted at any time where they are not related to a specific solicitation for any covered Federal action:

 

(1)            Discussing with an agency the qualities and characteristics (including individual demonstrations) of the person's products or services, conditions or terms of sale, and service capabilities.

 

(2)                        Technical discussions and other activities regarding the application or adaptation of the person's products or services for an agency's use.

 

(D)                        The following agency and legislative liaison activities are permitted where they are prior to formal solicitation of any covered Federal action --

 

(1)            Providing any information not specifically requested but necessary for an agency to make an informed decision about initiation of a covered Federal action;

 

(2)            Technical discussions regarding the preparation of an unsolicited proposal prior to its official submission; and

 

(3)                        Capability presentations by persons seeking awards from an agency pursuant to the provisions of the Small Business Act, as amended by Pub. L. 95-507, and subsequent amendments.

 

(E)            Only those services expressly authorized by subdivision (b)(3)(i)(A) of this clause are permitted under this clause.

 

(ii)            Professional and technical services.

 

(A)            The prohibition on the use of appropriated funds, in subparagraph (b)(1) of this clause, does not apply in the case of -

 

(1)            A payment of reasonable compensation made to an officer or employee of a person requesting or receiving a covered Federal action or an extension, continuation, renewal, amendment, or modification of a covered Federal action, if payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal action or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal action.

 

(2)            Any reasonable payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action or an extension, continuation, renewal, amendment, or modification of a covered Federal action if the payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal action or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal action.  Persons other than officers or employees of a person requesting or receiving a covered Federal action include consultants and trade associations.

 

(B)                        For purposes of subdivision (b)(3)(ii)(A) of this clause, "professional and technical services" shall be limited to advice and analysis directly applying any professional or technical discipline.  For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable.  Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable.  However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action.  Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services.  Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.

 

(C)                        Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation and any other requirements in the actual award documents.

 

(D)                        Only those services expressly authorized by subdivisions (b)(3)(ii)(A)(1) and (2) of this clause are permitted under this clause.

 

(E)                        The reporting requirements of FAR 3.803(a) shall not apply with respect to payments of reasonable compensation made to regularly employed officers or employees of a person.

 

(c)            Disclosure.

 

(1)            The Contractor who requests or receives from an agency a Federal contract shall file with that agency a disclosure form, OMB Standard Form LLL, Disclosure of Lobbying Activities, if such person has made or has agreed to make any payment using nonappropriated funds (to include profits from any covered Federal action), which would be prohibited under subparagraph (b)(1) of this clause, if paid for with appropriated funds.

(2)            The Contractor shall file a disclosure form at the end of each calendar quarter in which there occurs any event that materially affects the accuracy of the information contained in any disclosure form previously filed by such person under subparagraph (c)(1) of this clause.  An event that materially affects the accuracy of the information reported includes --

 

(i)            A cumulative increase of $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence a covered Federal action; or

 

(ii)            A change in the person(s) or individual(s) influencing or attempting to influence a covered Federal action; or

 

(iii)            A change in the officer(s), employee(s), or Member(s) contacted to influence or attempt to influence a covered Federal action.

 

(3)            The Contractor shall require the submittal of a certification, and if required, a disclosure form by any person who requests or receives any subcontract exceeding $100,000 under the Federal contract.

 

(4)            All subcontractor disclosure forms (but not certifications) shall be forwarded from tier to tier until received by the prime Contractor.  The prime Contractor shall submit all disclosures to the Contracting Officer at the end of the calendar quarter in which the disclosure form is submitted by the subcontractor.  Each subcontractor certification shall be retained in the subcontract file of the awarding Contractor.

 

(d)        Agreement.  The Contractor agrees not to make any payment prohibited by this Clause.

 

(e)          Penalties.

 

(1)            Any person who makes an expenditure prohibited under paragraph (a) of this clause or who fails to file or amend the disclosure form to be filed or amended by paragraph (b) of this clause shall be subject to civil penalties as provided for by 31 U.S.C. 1352.  An imposition of a civil penalty does not prevent the Government from seeking any other remedy that may be applicable.

 

(2)            Contractors may rely without liability on the representation made by their subcontractors in the certification and disclosure form.

 

(f)                 Cost allowability.  Nothing in this clause makes allowable or reasonable any costs which would otherwise be unallowable or unreasonable.  Conversely, costs made specifically unallowable by the requirements in this clause will not be made allowable under any other provision.

 

Clause I.9 - FAR 52.204-4  Printed or Copied Double-Sided on Recycled Paper (Aug 2000)

 

(a)       Definitions.  As used in this clause --

 

"Postconsumer material" means a material or finished product that has served its intended use and has been discarded for disposal or recovery, having completed its life as a consumer item.  Postconsumer material is a part of the broader category of "recovered material."  For paper and paper products, postconsumer material means "postconsumer fiber" defined by the U.S. Environmental Protection Agency (EPA) as --

 

(1)       Paper, paperboard, and fibrous materials from retail stores, office buildings, homes, and so forth, after they have passed through their end-usage as a consumer item, including:  used corrugated boxes; old newspapers; old magazines; mixed waste paper; tabulating cards; and used cordage; or

 

(2)       All paper, paperboard, and fibrous materials that enter and are collected from municipal solid waste; but not

 

(3)       Fiber derived from printers' over-runs, converters' scrap, and over-issue publications.

 

"Printed or copied double-sided" means printing or reproducing a document so that information is on both sides of a sheet of paper.

 

"Recovered material," for paper and paper products, is defined by EPA in its Comprehensive Procurement Guideline as "recovered fiber" and means the following materials:

 

(1)             Postconsumer fiber; and

 

(2)             Manufacturing wastes such as --

 

(i)             Dry paper and paperboard waste generated after completion of the papermaking process (that is, those manufacturing operations up to and including the cutting and trimming of the paper machine reel into smaller rolls or rough sheets) including:  envelope cuttings, bindery trimmings, and other paper and paperboard waste resulting from printing, cutting, forming, and other converting operations; bag, box, and carton manufacturing wastes; and butt rolls, mill wrappers, and rejected unused stock; and

 

(ii)            Repulped finished paper and paperboard from obsolete inventories of paper and paperboard manufacturers, merchants, wholesalers, dealers, printers, converters, or others.

 

(b)       In accordance with Section 101 of Executive Order 13101 of September 14, 1998, Greening the Government through Waste Prevention, Recycling, and Federal Acquisition, the Contractor is encouraged to submit paper documents, such as offers, letters, or reports, that are printed or copied double-sided on recycled paper that meet minimum content standards specified in Section 505 of Executive Order 13101, when not using electronic commerce methods to submit information or data to the Government.

 

(c)        If the Contractor cannot purchase high-speed copier paper, offset paper, forms bond, computer printout paper, carbonless paper, file folders, white wove envelopes, writing and office paper, book paper, cotton fiber paper, and cover stock meeting the 30 percent postconsumer material standard for use in submitting paper documents to the Government, it should use paper containing no less than 20 percent postconsumer material.  This lesser standard should be used only when paper meeting the 30 percent postconsumer material standard is not obtainable at a reasonable price or does not meet reasonable performance standards.

 

 

CLAUSE I.10 - FAR 52.209-6  PROTECTING THE GOVERNMENT'S INTEREST WHEN SUBCONTRACTING WITH CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT (JUL 1995)

 

(a)       The Government suspends or debars Contractors to protect the Government's interests.  The Contractor shall not enter into any subcontract in excess of $25,000 with a Contractor that is debarred, suspended, or proposed for debarment unless there is a compelling reason to do so.

 

(b)       The Contractor shall require each proposed first-tier subcontractor, whose subcontract will exceed $25,000, to disclose to the Contractor, in writing, whether as of the time of award of the subcontract, the subcontractor, or its principals, is or is not debarred, suspended, or proposed for debarment by the Federal Government.

 

(c)        A corporate officer or a designee of the Contractor shall notify the Contracting Officer, in writing, before entering into a subcontract with a party that is debarred, suspended, or proposed for debarment (see FAR 9.404 for information on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs).  The notice must include the following:

 

            (1)            The name of the subcontractor.

 

            (2)            The Contractor's knowledge of the reasons for the subcontractor being on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.

 

            (3)            The compelling reason(s) for doing business with the subcontractor notwithstanding its inclusion on the List of Parties Excluded From Federal Procurement and Nonprocurement Programs.

 

            (4)            The systems and procedures the Contractor has established to ensure that it is fully protecting the Government's interests when dealing with such subcontractor in view of the specific basis for the party's debarment, suspension or proposed debarment.

 

 

CLAUSE I.11 - FAR 52.211-5  Material Requirements (Aug 2000)

 

(a)       Definitions.

 

            As used in this clause --

 

            "New" means composed of previously unused components, whether manufactured from virgin material, recovered material in the form of raw material, or materials and by-products generated from, and reused within, an original manufacturing process; provided that the supplies meet contract requirements, including but not limited to, performance, reliability, and life expectancy.

 

            "Reconditioned" means restored to the original normal operating condition by readjustments and material replacement.

 

            "Recovered material" means waste materials and by-products recovered or diverted from solid waste, but the term does not include those materials and by-products generated from, and commonly reused within, an original manufacturing process.

 

            "Remanufactured" means factory rebuilt to original specifications.

 

            "Virgin material" means --

 

            (1)            Previously unused raw material, including previously unused copper, aluminum, lead, zinc, iron, other metal or metal ore; or

 

            (2)            Any undeveloped resource that is, or with new technology will become, a source of raw materials.

 

(b)       Unless this contract otherwise requires virgin material or supplies composed of or manufactured from virgin material, the Contractor shall provide supplies that are new, reconditioned, or remanufactured, as defined in this clause.

 

(c)        A proposal to provide unused former Government surplus property shall include a complete description of the material, the quantity, the name of the Government agency from which acquired, and the date of acquisition.

 

(d)       A proposal to provide used, reconditioned, or remanufactured supplies shall include a detailed description of such supplies and shall be submitted to the Contracting Officer for approval.

 

(e)       Used, reconditioned, or remanufactured supplies, or unused former Government surplus property, may be used in contract performance if the Contractor has proposed the use of such supplies, and the Contracting Officer has authorized their use.

 

 

CLAUSE I.12 - FAR 52.215-8  ORDER OF PRECEDENCE - UNIFORM CONTRACT FORMAT (OCT 1997)

 

Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order:

 

(a)       The Schedule (excluding the specifications).

 

(b)            Representations and other instructions.

 

(c)            Contract clauses.

 

(d)       Other documents, exhibits, and attachments.

 

(e)       The specifications.

 

 

CLAUSE I.13 - FAR 52.215-12  SUBCONTRACTOR COST OR PRICING DATA (OCT 1997)

 

(a)       Before awarding any subcontract expected to exceed the threshold for submission of cost or pricing data at FAR 15.403-4, on the date of agreement on price or the date of award, whichever is later; or before pricing any subcontract modification involving a pricing adjustment expected to exceed the threshold for submission of cost or pricing data at FAR 15.403-4, the Contractor shall require the subcontractor to submit cost or pricing data (actually or by specific identification in writing), unless an exception under FAR 15.403-1 applies.

 

(b)              The Contractor shall require the subcontractor to certify in substantially the form prescribed in FAR 15.406-2 that, to the best of its knowledge and belief, the data submitted under paragraph (a) of this clause were accurate, complete, and current as of the date of agreement on the negotiated price of the subcontract or subcontract modification.

 

(c)              In each subcontract that exceeds the threshold for submission of cost or pricing data at FAR 15.403-4, when entered into, the Contractor shall insert either --

 

(1)            The substance of this clause, including this paragraph (c), if paragraph (a) of this clause requires submission of cost or pricing data for the subcontract; or

 

(2)            The substance of the clause at FAR 52.215-13, Subcontractor Cost or Pricing Data--Modifications.

 

 

CLAUSE I.14 - FAR 52.215-13  SUBCONTRACTOR COST OR PRICING DATA--MODIFICATIONS (OCT 1997) 

 

(a)       The requirements of paragraphs (b) and (c) of this clause shall --

 

(1)            Become operative only for any modification to this contract involving a pricing adjustment expected to exceed the threshold for submission of cost or pricing data at FAR 15.403-4; and

 

(2)          Be limited to such modifications.

 

(b)       Before awarding any subcontract expected to exceed the threshold for submission of cost or pricing data at FAR 15.403-4, on the date of agreement on price or the date of award, whichever is later; or before pricing any subcontract modification involving a pricing adjustment expected to exceed the threshold for submission of cost or pricing data at FAR 15.403-4, the Contractor shall require the subcontractor to submit cost or pricing data (actually or by specific identification in writing), unless an exception under FAR 15.403-1 applies.

 

(c)        The Contractor shall require the subcontractor to certify in substantially the form prescribed in FAR 15.406-2 that, to the best of its knowledge and belief, the data submitted under paragraph (b) of this clause were accurate, complete, and current as of the date of agreement on the negotiated price of the subcontract or subcontract modification.

 

(d)              The Contractor shall insert the substance of this clause, including this paragraph (d), in each subcontract that exceeds the threshold for submission of cost or pricing data at FAR 15.403-4 on the date of agreement on price or the date of award, whichever is later.

 

CLAUSE I.15 - FAR 52. 219-8  UTILIZATION OF SMALL BUSINESS CONCERNS (OCT 2000)

 

(a)       It is the policy of the United States that small business concerns, veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns shall have the maximum practicable opportunity to participate in performing contracts let by any Federal agency, including contracts and subcontracts for subsystems, assemblies, components, and related services for major systems.  It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns, veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns.

 

(b)       The Contractor hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with efficient contract performance. The Contractor further agrees to cooperate in any studies or surveys as may be conducted by the United States Small Business Administration or the awarding agency of the United States as may be necessary to determine the extent of the Contractor's compliance with this clause.

 

(c)            Definitions.  As used in this contract --

 

"HUBZone small business concern" means a small business concern that appears on the List of Qualified HUBZone Small Business Concerns maintained by the Small Business Administration.

 

"Service-disabled veteran-owned small business concern" --

 

(1)            Means a small business concern--

 

(i)            Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and

 

(ii)            The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran.

 

(2)       Service-disabled veteran means a veteran, as defined in 38 U.S.C. 101(2), with a disability that is service-connected, as defined in 38 U.S.C. 101(16).

"Small business concern" means a small business as defined pursuant to Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto.

 

"Small disadvantaged business concern" means a small business concern that represents, as part of its offer that --

 

(1)       It has received certification as a small disadvantaged business concern consistent with 13 CFR part 124, Subpart B;

 

(2)       No material change in disadvantaged ownership and control has occurred since its certification;

 

(3)       Where the concern is owned by one or more individuals, the net worth of each individual upon whom the certification is based does not exceed $750,000 after taking into account the applicable exclusions set forth at 13 CFR 124.104(c)(2); and

 

(4)       It is identified, on the date of its representation, as a certified small disadvantaged business in the database maintained by the Small Business Administration (PRO-Net).

 

"Veteran-owned small business concern" means a small business concern --

 

(1)       Not less than 51 percent of which is owned by one or more veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and

 

(2)       The management and daily business operations of which are controlled by one or more veterans.

 

"Women-owned small business concern" means a small business concern --

 

(1)       That is at least 51 percent owned by one or more women, or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more women; and

 

(2)       Whose management and daily business operations are controlled by one or more women.

 

(e)              Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as a small business concern, a veteran-owned small business concern, a service-disabled veteran-owned small business concern, a HUBZone small business concern, a small disadvantaged business concern, or a women-owned small business concern.

 

CLAUSE I.16 - FAR 52.219‑9 SMALL BUSINESS SUBCONTRACTING PLAN (OCT 2000)

 

(a)       This clause does not apply to small business concerns.

 

(b)            Definitions.  As used in this clause --

 

"Commercial item" means a product or service that satisfies the definition of commercial item in section 2.101 of the Federal Acquisition Regulation.

 

"Commercial plan" means a subcontracting plan (including goals) that covers the offeror's fiscal year and that applies to the entire production of commercial items sold by either the entire company or a portion thereof (e.g., division, plant, or product line).

 

"Individual contract plan" means a subcontracting plan that covers the entire contract period (including option periods), applies to a specific contract, and has goals that are based on the offeror's planned subcontracting in support of the specific contract, except that indirect costs incurred for common or joint purposes may be allocated on a prorated basis to the contract.

 

"Master plan" means a subcontracting plan that contains all the required elements of an individual contract plan, except goals, and may be incorporated into individual contract plans, provided the master plan has been approved.

 

"Subcontract" means any agreement (other than one involving an employer-employee relationship) entered into by a Federal Government prime Contractor or subcontractor calling for supplies or services required for performance of the contract or subcontract.

 

(c)        The offeror, upon request by the Contracting Officer, shall submit and negotiate a subcontracting plan, where applicable, that separately addresses subcontracting with small business, veteran-owned small business, HUBZone small business concerns, small disadvantaged business, and women-owned small business concerns.  If the offeror is submitting an individual contract plan, the plan must separately address subcontracting with small business, veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns, with a separate part for the basic contract and separate parts for each option (if any).  The plan shall be included in and made a part of the resultant contract.  The subcontracting plan shall be negotiated within the time specified by the Contracting Officer.  Failure to submit and negotiate the subcontracting plan shall make the offeror ineligible for award of a contract.

 

(d)       The offeror's subcontracting plan shall include the following:

 

            (1)            Goals, expressed in terms of percentages of total planned subcontracting dollars, for the use of small business, veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns as subcontractors.  Service-disabled veteran-owned small business concerns meet the definition of veteran-owned small business concerns, and offerors may include them within the subcontracting plan goal for veteran-owned small business concerns.  A separate goal for service-disabled veteran-owned small business concerns is not required.  The offeror shall include all subcontracts that contribute to contract performance, and may include a proportionate share of products and services that are normally allocated as indirect costs.

 

            (2)            A statement of --

 

                        (i)            Total dollars planned to be subcontracted for an individual contract plan; or the offeror's total projected sales, expressed in dollars, and the total value of projected subcontracts to support the sales for a commercial plan;

 

                        (ii)            Total dollars planned to be subcontracted to small business concerns;

 

                        (iii)                        Total dollars planned to be subcontracted to veteran-owned small business concerns;

 

                        (iv)                        Total dollars planned to be subcontracted to HUBZone small business concerns;

 

                        (v)            Total dollars planned to be subcontracted to small disadvantaged business concerns; and

 

                        (vi)            Total dollars planned to be subcontracted to women-owned small business concerns.

 

            (3)            A description of the principal types of supplies and services to be subcontracted, and an identification of the types planned for subcontracting to --

 

                        (i)            Small business concerns;

 

                        (ii)            Veteran-owned small business concerns;

 

                        (iii)            HUBZone small business concerns;

 

                        (iv)            Small disadvantaged business concerns; and

 

                        (v)            Women-owned small business concerns.

 

            (4)            A description of the method used to develop the subcontracting goals in paragraph (d)(1) of this clause.

 

            (5)            A description of the method used to identify potential sources for solicitation purposes (e.g., existing company source lists, the Procurement Marketing and Access Network (PRO-Net) of the Small Business Administration (SBA), veterans service organizations, the National Minority Purchasing Council Vendor Information Service, the Research and Information Division of the Minority Business Development Agency in the Department of Commerce, or small, HUBZone, small disadvantaged, and women-owned small business trade associations).  A firm may rely on the information contained in PRO-Net as an accurate representation of a concern's size and ownership characteristics for the purposes of maintaining a small, veteran-owned small, HUBZone small, small disadvantaged, and women-owned small business source list.  Use of PRO-Net as its source list does not relieve a firm of its responsibilities (e.g., outreach, assistance, counseling, or publicizing subcontracting opportunities) in this clause.

 

            (6)            A statement as to whether or not the offeror included indirect costs in establishing subcontracting goals, and a description of the method used to determine the proportionate share of indirect costs to be incurred with--

 

                        (i)            Small business concerns;

                       

                        (ii)            Veteran-owned small business concerns;

 

                        (iii)            HUBZone small business concerns;

 

                        (iv)            Small disadvantaged business concerns; and

 

            (v)            Women-owned small business concerns.

 

            (7)             The name of the individual employed by the offeror who will administer the offeror's subcontracting program, and a description of the duties of the individual.

 

            (8)            A description of the efforts the offeror will make to assure that small business, veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns have an equitable opportunity to compete for subcontracts.

 

            (9)            Assurances that the offeror will include the clause of this contract entitled "Utilization of Small Business Concerns" in all subcontracts that offer further subcontracting opportunities, and that the offeror will require all subcontractors (except small business concerns) that receive subcontracts in excess of $500,000 ($1,000,000 for construction of any public facility) to adopt a subcontracting plan that complies with the requirements of this clause.

 

            (10)            Assurances that the offeror will --

 

                        (i)            Cooperate in any studies or surveys as may be required;

 

                        (ii)            Submit periodic reports so that the Government can determine the extent of compliance by the offeror with the subcontracting plan;

 

                        (iii)            Submit Standard Form (SF) 294, Subcontracting Report for Individual Contracts, and/or SF 295, Summary Subcontract Report, in accordance with paragraph (j) of this clause.  The reports shall provide information on subcontract awards to small business concerns, veteran-owned small business concerns, service-disabled veteran-owned small business concerns, small disadvantaged business concerns, women-owned small business concerns, and Historically Black Colleges and Universities and Minority Institutions.  Reporting shall be in accordance with the instructions on the forms or as provided in agency regulations.

 

                        (iv)            Ensure that its subcontractors agree to submit SF 294 and SF 295.

 

            (11)            A description of the types of records that will be maintained concerning procedures that have been adopted to comply with the requirements and goals in the plan, including establishing source lists; and a description of the offeror's efforts to locate small business, veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns and award subcontracts to them.  The records shall include at least the following (on a plant-wide or company-wide basis, unless otherwise indicated):

 

                        (i)             Source lists (e.g., PRO-Net), guides, and other data that identify small business, veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns.

 

                        (ii)            Organizations contacted in an attempt to locate sources that are small business, veteran-owned small business, HUBZone small business, small disadvantaged business, or women-owned small business concerns.

 

                        (iii)            Records on each subcontract solicitation resulting in an award of more than $100,000, indicating --

 

                                                (A)            Whether small business concerns were solicited and, if not, why not;

 

                                    (B)             Whether veteran-owned small business concerns were solicited and, if not, why not;

 

                        (C)             Whether HUBZone small business concerns were solicited and, if not, why not;

 

                                    (D)            Whether small disadvantaged business concerns were solicited and, if not, why not;

 

                                                (E)            Whether women-owned small business concerns were solicited and, if not, why not; and

 

                                                (F)            If applicable, the reason award was not made to a small business concern.

 

                        (iv)            Records of any outreach efforts to contact --

 

                                    (A)             Trade associations;

 

                                    (B)            Business development organizations;

 

                                                (C)            Conferences and trade fairs to locate small, HUBZone small, small disadvantaged, and women-owned small business sources; and

 

                                                (D)            Veterans service organizations.

 

                        (v)            Records of internal guidance and encouragement provided to buyers through --

 

                                                (A)             Workshops, seminars, training, etc.; and

 

                                                (B)             Monitoring performance to evaluate compliance with the program's requirements.

 

                        (vi)             On a contract-by-contract basis, records to support award data submitted by the offeror to the Government, including the name, address, and business size of each subcontractor.  Contractors having commercial plans need not comply with this requirement.

 

(e)       In order to effectively implement this plan to the extent consistent with efficient contract performance, the Contractor shall perform the following functions:

 

            (1)            Assist small business, veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns by arranging solicitations, time for the preparation of bids, quantities, specifications, and delivery schedules so as to facilitate the participation by such concerns.  Where the Contractor's lists of potential small business, veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business subcontractors are excessively long, reasonable effort shall be made to give all such small business concerns an opportunity to compete over a period of time.

 

            (2)            Provide adequate and timely consideration of the potentialities of small business, veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns in all "make-or-buy" decisions.

 

            (3)            Counsel and discuss subcontracting opportunities with representatives of small business, veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business firms.

 

            (4)            Provide notice to subcontractors concerning penalties and remedies for misrepresentations of business status as small, veteran-owned small business, HUBZone small, small disadvantaged, or women-owned small business for the purpose of obtaining a subcontract that is to be included as part or all of a goal contained in the Contractor's subcontracting plan.

 

(f)         A master plan on a plant or division-wide basis that contains all the elements required by paragraph (d) of this clause, except goals, may be incorporated by reference as a part of the subcontracting plan required of the offeror by this clause; provided --

 

            (1)            The master plan has been approved;

 

            (2)            The offeror ensures that the master plan is updated as necessary and provides copies of the approved master plan, including evidence of its approval, to the Contracting Officer; and

 

            (3)            Goals and any deviations from the master plan deemed necessary by the Contracting Officer to satisfy the requirements of this contract are set forth in the individual subcontracting plan.

 

(g)       A commercial plan is the preferred type of subcontracting plan for contractors furnishing commercial items.  The commercial plan shall relate to the offeror's planned subcontracting generally, for both commercial and Government business, rather than solely to the Government contract.  Commercial plans are also preferred for subcontractors that provide commercial items under a prime contract, whether or not the prime contractor is supplying a commercial item.

 

(h)        Prior compliance of the offeror with other such subcontracting plans under previous contracts will be considered by the Contracting Officer in determining the responsibility of the offeror for award of the contract.

 

(i)         The failure of the Contractor or subcontractor to comply in good faith with  --

 

            (1)             The clause of this contract entitled "Utilization Of Small Business Concerns;" or 

 

            (2)             An approved plan required by this clause, shall be a material breach of the contract.

 

(j)         The Contractor shall submit the following reports:

 

            (1)            Standard Form 294, Subcontracting Report for Individual Contracts.  This report shall be submitted to the Contracting Officer semiannually and at contract completion.  The report covers subcontract award data related to this contract.  This report is not required for commercial plans.

 

            (2)            Standard Form 295, Summary Subcontract Report.  This report encompasses all of the contracts with the awarding agency.  It must be submitted semi-annually for contracts with the Department of Defense and annually for contracts with civilian agencies.  If the reporting activity is covered by a commercial plan, the reporting activity must report annually all subcontract awards under that plan.  All reports submitted at the close of each fiscal year (both individual and commercial plans) shall include a breakout, in the Contractor's format, of subcontract awards, in whole dollars, to small disadvantaged  business concerns by North American Industry Classification System (NAICS) Industry Subsector.  For a commercial plan, the Contractor may obtain from each of its subcontractors a predominant NAICS Industry Subsector and report all awards to that subcontractor under its predominant NAICS Industry Subsector.

 

                  

CLAUSE I.17 - FAR 52.219-16  LIQUIDATED DAMAGES - SUBCONTRACTING PLAN (JAN 1999)

 

(a)            "Failure to make a good faith effort to comply with the subcontracting plan," as used in this clause, means a willful or intentional failure to perform in accordance with the requirements of the subcontracting plan approved under the clause in this contract entitled "Small Business Subcontracting Plan," or willful or intentional action to frustrate the plan.

 

(b)            Performance shall be measured by applying the percentage goals to the total actual subcontracting dollars or, if a commercial plan is involved, to the pro rata share of actual subcontracting dollars attributable to Government contracts covered by the commercial plan.  If, at contract completion, or in the case of a commercial plan, at the close of the fiscal year for which the plan is applicable, the Contractor has failed to meet its subcontracting goals and the Contracting Officer decides in accordance with paragraph (c) of this clause that the Contractor failed to make a good faith effort to comply with its subcontracting plan, established in accordance with the clause in this contract entitled,  “Small Business Subcontracting Plan", the Contractor shall pay the Government liquidated damages in an amount stated.  The amount of probable damages attributable to the Contractor's failure to comply shall be an amount equal to the actual dollar amount by which the Contractor failed to achieve each subcontract goal.

 

(c)        Before the Contracting Officer makes a final decision that the Contractor has failed to make such good faith effort, the Contracting Officer shall give the Contractor written notice specifying the failure and permitting the Contractor to demonstrate what good faith efforts have been made and to discuss the matter.  Failure to respond to the notice may be taken as an admission that no valid explanation exists.  If, after consideration of all the pertinent data, the Contracting Officer finds that the Contractor failed to make a good faith effort to comply with the subcontracting plan, the Contracting Officer shall issue a final decision to that effect and require that the Contractor pay the Government liquidated damages as provided in paragraph (b) of this clause.

 

(d)       With respect to commercial plans, the Contracting Officer who approved the plan will perform the functions of the Contracting Officer under this clause on behalf of all agencies with contracts covered by the commercial plan.

 

(e)       The Contractor shall have the right of appeal, under the clause in this contract entitled, Disputes, from any final decision of the Contracting Officer.

 

(f)            Liquidated damages shall be in addition to any other remedies that the Government may have.

 

 

CLAUSE I.18 - FAR 52.219-25  SMALL DISADVANTAGED BUSINESS PARTICIPATION PROGRAM-DISADVANTAGED STATUS AND REPORTING (OCT 1999)

 

(a)            Disadvantaged status for joint venture partners, team members, and subcontractors. This clause addresses disadvantaged status for joint venture partners, teaming arrangement members, and subcontractors and is applicable if this contract contains small disadvantaged business (SDB) participation targets.  The Contractor shall obtain representations of small disadvantaged status from joint venture partners, teaming arrangement members, and subcontractors through use of a provision substantially the same as paragraph (b)(1)(i) of the provision at FAR 52.219-22, Small Disadvantaged Business Status.  The Contractor shall confirm that a joint venture partner, team member, or subcontractor representing itself as a small disadvantaged business concern, is identified as a certified small disadvantaged business in the database maintained by the Small Business Administration (PRO-Net) or by contacting the SBA’s Office of Small Disadvantaged Business Certification and Eligibility.

 

(b)            Reporting requirement.  If this contract contains SDB participation targets, the Contractor shall report on the participation of SDB concerns at contract completion, or as otherwise provided in this contract.  Reporting may be on Optional Form 312, Small Disadvantaged Business Participation Report, or in the Contractor’s own format providing the same information.  This report is required for each contract containing SDB participation targets.  If this contract contains an individual Small, Small Disadvantaged and Women-Owned Small Business Subcontracting Plan, reports may be submitted with the final Subcontracting Report for Individual Contracts (Standard Form 294) at the completion of the contract.

 

 

CLAUSE I.19 - FAR 52.222-1  NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (FEB 1997)

 

If the Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this contract, the Contractor shall immediately give notice, including all relevant information, to the Contracting Officer.

 

 

CLAUSE I.20 - FAR 52.222-3  CONVICT LABOR (AUG 1996)

 

The Contractor agrees not to employ in the performance of this contract any person undergoing a sentence of imprisonment which has been imposed by any court of a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, or the Trust Territory of the Pacific Islands.  This limitation, however, shall not prohibit the employment by the Contractor in the performance of this contract of persons on parole or probation to work at paid employment during the term of their sentence or persons who have been pardoned or who have served their terms.  Nor shall it prohibit the employment by the Contractor in the performance of this contract of persons confined for violation of the laws of any of the States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, or the Trust Territory of the Pacific Islands who are authorized to work at paid employment in the community under the laws of such jurisdiction, if --

 

(a)       (1)            The worker is paid or is in an approved work training program on a voluntary basis;

 

            (2)            Representatives of local union central bodies or similar labor union organizations have been consulted;

 

(3)            Such paid employment will not result in the displacement of employed workers, or be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality, or impair existing contracts for services; and

 

(4)            The rates of pay and other conditions of employment will not be less than those paid or provided for work of a similar nature in the locality in which the work is being performed; and

 

(b)       The Attorney General of the United States has certified that the work-release laws or regulations of the jurisdiction involved are in conformity with the requirements of Executive Order 11755, as amended by Executive Orders 12608 and 12943.

 

 

CLAUSE I.21 - FAR 52.222-4  CONTRACT WORK HOURS AND SAFETY STANDARDS ACT -- OVERTIME COMPENSATION (SEPT 2000)

 

(a)            Overtime requirements.  No Contractor or subcontractor employing laborers or mechanics (see Federal Acquisition Regulation 22.300) shall require or permit them to work over 40 hours in any workweek unless they are paid at least 1 and 1/2 times the basic rate of pay for each hour worked over 40 hours.

 

(b)            Violation; liability for unpaid wages; liquidated damages.  The responsible Contractor and subcontractor are liable for unpaid wages if they violate the terms in paragraph (a) of this clause.  In addition, the Contractor and subcontractor are liable for liquidated damages payable to the Government.  The Contracting Officer will assess liquidated damages at the rate of $10 per affected employee for each calendar day on which the employer required or permitted the employee to work in excess of the standard workweek of 40 hours without paying overtime wages required by the Contract Work Hours and Safety Standards Act.

 

(c)             Withholding for unpaid wages and liquidated damages.  The Contracting Officer will withhold from payments due under the contract sufficient funds required to satisfy any Contractor or subcontractor liabilities for unpaid wages and liquidated damages.  If amounts withheld under the contract are insufficient to satisfy Contractor or subcontractor liabilities, the Contracting Officer will withhold payments from other Federal or Federally assisted contracts held by the same Contractor that are subject to the Contract Work Hours and Safety Standards Act.

 

(d)            Payrolls and basic records.

           

(1)              The Contractor and its subcontractors shall maintain payrolls and basic payroll records for all laborers and mechanics working on the contract during the contract and shall make them available to the Government until 3 years after contract completion.  The records shall contain the name and address of each employee, social security number, labor classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid.  The records need not duplicate those required for construction work by Department of Labor regulations at 29 CFR 5.5(a)(3) implementing the Davis-Bacon Act.

 

            (2)             The Contractor and its subcontractors shall allow authorized representatives of the Contracting Officer or the Department of Labor to inspect, copy, or transcribe records maintained under paragraph (d)(1) of this clause.  The Contractor or subcontractor also shall allow authorized representatives of the Contracting Officer or Department of Labor to interview employees in the workplace during working hours.

 

(e)            Subcontracts.  The Contractor shall insert the provisions set forth in paragraphs (a) through (d) of this clause in subcontracts exceeding $100,000 and require subcontractors to include these provisions in any lower tier subcontracts.  The Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the provisions set forth in paragraphs (a) through (d) of this clause. 

 

 

CLAUSE I.22 - FAR 52.222-11  SUBCONTRACTS (LABOR STANDARDS) (FEB 1988) (DEVIATION)

 

(a)       The Contractor or subcontractor shall insert in any domestic construction subcontracts the clauses entitled, "Davis-Bacon Act”, “Contract Work Hours and Safety Standards Act-Overtime Compensation", "Apprentices and Trainees", "Payrolls and Basic Records", "Compliance with Copeland Act Requirements", "Withholding of Funds", "Subcontracts (Labor Standards)", "Contract Termination-Debarment", "Disputes Concerning Labor Standards", "Compliance with Davis-Bacon and Related Act Regulations", and "Certification of Eligibility", and such other clauses as the Contracting Officer may, by appropriate instructions, require, and also a clause requiring subcontractors to include these clauses in any lower tier subcontracts.  The prime Contractor shall be responsible for compliance by any subcontractor or lower-tier subcontractor with all the contract clauses cited in this paragraph.

 

(b)       (1)            Within fourteen (14) days after award of the contract, the Contractor shall deliver to the Contracting Officer a completed Statement and Acknowledgment Form (SF 1413) for each subcontract, including the subcontractor's signed and dated acknowledgment that the clauses set forth in paragraph (a) of this clause have been included in the subcontract.

 

            (2)            Within fourteen (14) days after the award of any subsequently awarded subcontract the Contractor shall deliver to the Contracting Officer an updated completed SF 1413 for such additional subcontract.

 

 

CLAUSE I.22A - FAR 52.222-19  CHILD LABOR -- COOPERATION WITH AUTHORITIES AND REMEDIES (FEB 2001)  

 

 (a)            Applicability.  This clause does not apply to the extent that the Contractor is supplying end products mined, produced, or manufactured in --  

 

(1)            Canada, and the anticipated value of the acquisition is $25,000 or more;  

 

(2)            Israel, and the anticipated value of the acquisition is $50,000 or more;  

 

(3)            Mexico, and the anticipated value of the acquisition is $54,372 or more; or  

 

(4)       Aruba, Austria, Belgium, Denmark, Finland, France, Germany, Greece, Hong Kong, Ireland, Italy, Japan, Korea, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal, Singapore, Spain, Sweden, Switzerland, or the United Kingdom and the anticipated value of the acquisition is $177,000 or more.  

 

(b)            Cooperation with Authorities.  To enforce the laws prohibiting the manufacture or

importation of products mined, produced, or manufactured by forced or   indentured child labor, authorized officials may need to conduct investigations to determine whether forced or indentured child labor was used to mine, produce, or manufacture any product furnished under this contract.  If the solicitation includes the provision 52.222-18, Certification Regarding Knowledge of Child Labor for Listed End Products, or the equivalent at 52.212-3(i), the Contractor agrees to cooperate fully with authorized officials of the contracting agency, the Department of the Treasury, or the Department of Justice by providing reasonable access to records, documents, persons, or premises upon reasonable request by the authorized officials.  

 

(c)            Violations.  The Government may impose remedies set forth in paragraph (d) for the following violations:  

 

(1)       The Contractor has submitted a false certification regarding knowledge of the use of forced or indentured child labor for listed end products.  

 

(2)       The Contractor has failed to cooperate, if required, in accordance with paragraph (b) of this clause, with an investigation of the use of forced or indentured child labor by an Inspector General, Attorney General, or the Secretary of the Treasury.  

 

(3)       The Contractor uses forced or indentured child labor in its mining, production, or manufacturing processes.  

 

(4)       The Contractor has furnished under the contract end products or components that have been mined, produced, or manufactured wholly or in part by forced or indentured child labor.  (The Government will not pursue remedies at paragraph (d)(2) or paragraph (d)(3) of this clause unless sufficient evidence indicates that the Contractor knew of the violation.)  

 

(d)               Remedies.  

 

(1)            The Contracting Officer may terminate the contract.  

 

(2)       The suspending official may suspend the Contractor in accordance with procedures in FAR Subpart 9.4.  

 

(3)       The debarring official may debar the Contractor for a period not to exceed 3  years in accordance with the procedures in FAR Subpart 9.4.  

 

 

CLAUSE I.23 - FAR 52.222-21  PROHIBITION OF SEGREGATED FACILITIES (FEB 1999)

 

(a)            Segregated facilities, as used in this clause, means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees, that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, sex, or national origin because of written or oral policies or employee custom.  The term does not include separate or single-user rest rooms or necessary dressing or sleeping areas provided to assure privacy between the sexes.

 

(b)       The Contractor agrees that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained.  The Contractor agrees that a breach of this clause is a violation of the Equal Opportunity clause in this contract.

 

(c)        The Contractor shall include this clause in every subcontract and purchase order that is subject to the Equal Opportunity clause of this contract.

 

 

CLAUSE I.24 - FAR 52.222-26  EQUAL OPPORTUNITY (FEB 1999)

 

(a)       If, during any 12-month period (including the 12 months preceding the award of this contract), the Contractor has been or is awarded nonexempt Federal contracts and/or subcontracts that have an aggregate value in excess of $10,000, the Contractor shall comply with subparagraphs (b)(1) through (11) of this clause.  Upon request, the Contractor shall provide information necessary to determine the applicability of this clause.

 

(b)       During performance of this contract, the Contractor agrees as follows:

 

            (1)       The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. However, it shall not be a violation of this clause for the Contractor to extend a publicly announced preference in employment to Indians living on or near an Indian reservation, in connection with employment opportunities on or near an Indian reservation, as permitted by 41 CFR 60-1.5.

 

            (2)            The Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin.  This shall include, but not be limited to, (i) employment, (ii) upgrading, (iii) demotion, (iv) transfer, (v) recruitment or recruitment advertising, (vi) layoff or termination, (vii) rates of pay or other forms of compensation, and (viii) selection for training, including apprenticeship.

 

            (3)            The Contractor shall post in conspicuous places available to employees and applicants for employment the notices to be provided by the Contracting Officer that explain this clause.

 

            (4)            The Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.

 

            (5)            The Contractor shall send, to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, the notice to be provided by the Contracting Officer advising the labor union or workers' representative of the Contractor's commitments under this clause, and post copies of the notice in conspicuous places available to employees and applicants for employment.

            (6)            The Contractor shall comply with Executive Order 11246, as amended, and the rules, regulations, and orders of the Secretary of Labor.

 

            (7)       The Contractor shall furnish to the contracting agency all information required by Executive Order 11246, as amended, and by the rules, regulations, and orders of the Secretary of Labor.  The Contractor shall also file Standard Form 100 (EEO-1), or any successor form, as prescribed in 41 CFR part 60-1.  Unless the Contractor has filed within the 12 months preceding the date of contract award, the Contractor shall, within 30 days after contract award, apply to either the regional Office of Federal Contract Compliance Programs (OFCCP) or the local office of the Equal Employment Opportunity Commission for the necessary forms.

 

            (8)       The Contractor shall permit access to its premises, during normal business hours, by the Contracting agency or the OFCCP for the purpose of conducting on-site compliance evaluations and complaint investigations.  The Contractor shall permit the Government to inspect and copy any books, accounts, records (including computerized records), and other material that may be relevant to the matter under investigation and pertinent to compliance with Executive Order 11246, as amended, and rules and regulations that implement the Executive Order.

 

            (9)            If the OFCCP determines that the Contractor is not in compliance with this clause or any rule, regulation, or order of the Secretary of Labor, this contract may be cancelled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts, under the procedures authorized in Executive Order 11246, as amended.  In addition, sanctions may be imposed and remedies invoked against the Contractor as provided in Executive Order 11246, as amended; in the rules, regulations, and orders of the Secretary of Labor; or as otherwise provided by law.

 

            (10)            The Contractor shall include the terms and conditions of subparagraphs (b)(1) through (11) of this clause in every subcontract or purchase order that is not exempted by the rules, regulations, or orders of the Secretary of Labor issued under Executive Order 11246, as amended, so that these terms and conditions will be binding upon each subcontractor or vendor.

 

            (11)            The Contractor shall take such action with respect to any subcontract or purchase order as the Contracting Officer may direct as a means of enforcing these terms and conditions, including sanctions for noncompliance; provided, that if the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of any direction, the Contractor may request the United States to enter into the litigation to protect the interests of the United States.

 

(c)            Notwithstanding any other clause in this contract, disputes relative to this clause will be governed by the procedures in 41 CFR 60‑1.1.

 

 

CLAUSE I.25 - FAR 52.222-29  NOTIFICATION OF VISA DENIAL (FEB 1999)

 

It is a violation of Executive Order 11246, as amended, for a Contractor to refuse to employ any applicant or not to assign any person hired in the United States, on the basis that the individual’s race, color, religion, sex, or national origin is not compatible with the policies of the country where the work is to be performed or for whom the work will be performed (41 CFR 60-1.10).  The Contractor agrees to notify the U.S. Department of State, Assistant Secretary, Bureau of Political-Military Affairs (PM), 2201 C Street NW, Room 7325, Washington, D.C. 20520, and the U.S. Department of Labor, Deputy Assistant Secretary for Federal Contract Compliance, when it has knowledge of any employee or potential employee being denied an entry visa to a country in which the Contractor is required to perform this contract, and it believes the denial is attributable to the race, color, religion, sex, or national origin of the employee or potential employee.

 

 

CLAUSE I.26 - FAR 52.222-35 AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA (APR 1998) 

 

(a)            Definitions. As used in this clause--

 

"All employment openings" includes all positions except executive and top management, those positions that will be filled from within the contractor's organization, and positions lasting 3 days or less. This term includes full-time employment, temporary employment of more than 3 days' duration, and part-time employment.

 

"Appropriate office of the State employment service system" means the local office of the Federal-State national system of public employment offices with assigned responsibility to serve the area where the employment opening is to be filled, including the District of Columbia, Guam, the Commonwealth of Puerto Rico, and the Virgin Islands.

 

"Positions that will be filled from within the Contractor's organization" means employment openings for which no consideration will be given to persons outside the Contractor's organization (including any affiliates, subsidiaries, and parent companies) and includes any openings that the Contractor proposes to fill from regularly established "recall" lists. The exception does not apply to a particular opening once an employer decides to consider applicants outside of its organization.

 

 

 

“Veteran of the Vietnam era" means a person who --

 

(1)             Served on active duty for a period of more than 180 days, any part of which occurred between August 5, 1964, and May 7, 1975, and was discharged or released therefrom with other than a dishonorable discharge; or

 

(2)       Was discharged or released from active duty for a service-connected disability if any part of such active duty was performed between August 5, 1964, and May 7, 1975.

 

(b)             General.

 

(1)       Regarding any position for which the employee or applicant for employment is qualified, the Contractor shall not discriminate against the individual because the individual is a disabled veteran or a veteran of the Vietnam era.  The Contractor agrees to take affirmative action to employ, advance in employment, and otherwise treat qualified disabled veterans and veterans of the Vietnam era without discrimination based upon their disability or veterans' status in all employment practices such as --

 

(i)            Employment;

 

(ii)             Upgrading;

 

(iii)            Demotion or transfer;

 

(iv)            Recruitment;

 

(v)             Advertising;

 

(vi)             Layoff or termination;

 

(vii)            Rates of pay or other forms of compensation; and

 

(viii)            Selection for training, including apprenticeship.

 

(2)       The Contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor (Secretary) issued under the Vietnam Era Veterans' Readjustment Assistance Act of 1972 (the Act), as amended.

 

(c)        Listing openings.

 

(1)       The Contractor agrees to list all suitable employment openings existing at contract award or occurring during contract performance, at an appropriate office of the State employment service system in the locality where the opening occurs.  These openings include those occurring at any Contractor facility, including one not connected with performing this contract. An independent corporate affiliate is exempt from this requirement.

 

(2)       State and local government agencies holding Federal contracts of $10,000 or more shall also list all their suitable openings with the appropriate office of the State employment service.

 

(3)       The listing of suitable employment openings with the State employment service system is required at least concurrently with using any other recruitment source or effort and involves the obligations of placing a bona fide job order, including accepting referrals of veterans and nonveterans. This listing does not require hiring any particular job applicant or hiring from any particular group of job applicants and is not intended to relieve the Contractor from any requirements of Executive orders or regulations concerning nondiscrimination in employment.

 

(4)       Whenever the Contractor becomes contractually bound to the listing terms of this clause, it shall advise the State employment service system, in each State where it has establishments, of the name and location of each hiring location in the State. As long as the Contractor is contractually bound to these terms and has so advised the State system, it need not advise the State system of subsequent contracts.  The Contractor may advise the State system when it is no longer bound by this contract clause.

 

(5)       Under the most compelling circumstances, an employment opening may not be suitable for listing, including situations when --

 

(i)            The Government’s needs cannot reasonably be supplied;

 

(ii)            Listing would be contrary to national security; or

 

(iii)            The requirement of listing would not be in the Government’s interest.

 

(f)                Applicability. This clause does not apply to the listing of employment openings that occur and are filled outside the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

 

(e)            Postings.

 

(1)       The Contractor agrees to post employment notices stating --

 

(i)            The Contractor's obligation under the law to take affirmative action to employ and advance in employment qualified disabled veterans and veterans of the Vietnam era; and

 

(ii)            The rights of applicants and employees.

 

(2)       These notices shall be posted in conspicuous places that are available to employees and applicants for employment.  They shall be in a form prescribed by the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor (Deputy Assistant Secretary), and provided by or through the Contracting Officer.

 

(3)       The Contractor shall notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the Contractor is bound by the terms of the Act, and is committed to take affirmative action to employ, and advance in employment, qualified special disabled and Vietnam Era veterans.

 

(f)            Noncompliance.  If the Contractor does not comply with the requirements of this clause, appropriate actions may be taken under the rules, regulations, and relevant orders of the Secretary issued pursuant to the Act.

 

(g)            Subcontracts.  The Contractor shall include the terms of this clause in every subcontract or purchase order of $10,000 or more unless exempted by rules, regulations, or orders of the Secretary.  The Contractor shall act as specified by the Director to enforce the terms, including action for noncompliance.

 

 

CLAUSE I.27 - FAR 52.222-36  AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES (JUN 1998)

 

(a)             General.

 

            (1)            Regarding any position for which the employee or applicant for employment is qualified, the Contractor shall not discriminate against any employee or applicant because of physical or mental disability.  The Contractor agrees to take affirmative action to employ, advance in employment, and otherwise treat qualified individuals with disabilities without discrimination based upon their physical or mental disability in all employment practices such as --

 

                   (i)              Recruitment, advertising, and job application procedures;

                       

                        (ii)            Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

 

                        (iii)                        Rates of pay or any other form of compensation and changes in compensation;

 

                        (iv)                        Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;

 

                   (v)              Leaves of absence, sick leave, or any other leave;

 

(vi)                        Fringe benefits available by virtue of employment, whether or not administered by the Contractor;

 

                        (vii)            Selection and financial support for training, including apprenticeships, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training;

 

                        (viii)            Activities sponsored by the Contractor, including social or recreational programs; and

 

                        (ix)                        Any other term, condition, or privilege of employment.

 

            (2)            The Contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor (Secretary) issued under the Rehabilitation Act of 1973 (29 U.S.C. 793) (the Act), as amended.

 

(b)            Postings.

 

            (1)            The Contractor agrees to post employment notices stating -- (i) the Contractor's obligation under the law to take affirmative action to employ and advance in employment qualified individuals with disabilities; and (ii) the rights of applicants and employees.

 

            (2)            These notices shall be posted in conspicuous places that are available to employees and applicants for employment.  The Contractor shall ensure that applicants and employees with disabilities are informed of the contents of the notice (e.g., the Contractor may have the notice read to a visually disabled individual, or may lower the posted notice so that it might be read by a person in a wheelchair).  The notices shall be in a form prescribed by the Deputy Assistant Secretary for Federal Contract Compliance of the U.S. Department of Labor (Deputy Assistant Secretary), and shall be provided by or through the Contracting Officer.

 

            (3)            The Contractor shall notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the Contractor is bound by the terms of Section 503 of the Act and is committed to take affirmative action to employ, and advance in employment, qualified individuals with physical or mental disabilities.

 

(c)            Noncompliance.  If the Contractor does not comply with the requirements of this clause, appropriate actions may be taken under the rules, regulations, and relevant orders of the Secretary issued pursuant to the Act.

 

(d)            Subcontracts.  The Contractor shall include the terms of this clause in every subcontract or purchase order in excess of $10,000 unless exempted by rules, regulations, or orders of the Secretary.  The Contractor shall act as specified by the Deputy Assistant Secretary to enforce the terms, including action for noncompliance.

 

 

CLAUSE I.28 - FAR 52.222-37  EMPLOYMENT REPORTS ON DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA (JAN 1999)

 

(a)       Unless the Contractor is a State or local government agency, the Contractor shall report at least annually, as required by the Secretary of Labor, on --

 

(1)       The number of special disabled veterans and the number of veterans of the Vietnam era in the workforce of the contractor by job category and hiring location; and

 

(2)       The total number of new employees hired during the period covered by the report, and of that total, the number of special disabled veterans, and the number of veterans of the Vietnam era.

 

(b)       The above items shall be reported by completing the form entitled "Federal Contractor Veterans' Employment Report VETS-100."

 

(c)            Reports shall be submitted no later than September 30 of each year beginning September 30, 1988.

 

(d)       The employment activity report required by paragraph (a)(2) of this clause shall reflect total hires during the most recent 12-month period as of the ending date selected for the employment profile report required by paragraph (a)(1) of this clause. Contractors may select an ending date:

 

(1)       As of the end of any pay period during the period January through March 1st of the year the report is due, or

 

(2)       As of December 31, if the contractor has previous written approval from the Equal Employment Opportunity Commission to do so for purposes of submitting the Employer Information Report EEO-1 (Standard Form 100).

 

(e)       The count of veterans reported according to paragraph (a) of this clause shall be based on voluntary disclosure. Each Contractor subject to the reporting requirements at 38 U.S.C. 4212 shall invite all disabled veterans and veterans of the Vietnam era who wish to benefit under the affirmative action program at 38 U.S.C. 4212 to identify themselves to the Contractor. The invitation shall state that the information is voluntarily provided; that the information will be kept confidential; that disclosure or refusal to provide the information will not subject the applicant or employee to any adverse treatment; and that the information will be used only in accordance with the regulations promulgated under 38 U.S.C. 4212.

 

(f)            Subcontracts. The Contractor shall include the terms of this clause in every subcontract or purchase order of $10,000 or more unless exempted by rules, regulations, or orders of the Secretary.

 

 

CLAUSE I.29 - FAR 52.223-5  POLLUTION PREVENTION AND RIGHT-TO-KNOW INFORMATION (APR 1998)

 

(a)            Executive Order 12856 of August 3, 1993, requires Federal facilities to comply with the provisions of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA)(42 U.S.C. 11001-11050) and the Pollution Prevention Act of 1990(PPA)(42 U.S.C. 13101-13109).

 

(b)       The Contractor shall provide all information needed by the Federal facility to comply with the emergency planning reporting requirements of Section 302 of EPCRA; the emergency notice requirements of Section 304 of EPCRA; the list of Material Safety Data Sheets required by Section 311 of EPCRA; the emergency and hazardous chemical inventory forms of Section 312 of EPCRA; the toxic chemical release inventory of Section 313 of EPCRA, which includes the reduction and recycling information required by Section 6607 of PPA; and the toxic chemical reduction goals requirements of Section 3-302 of Executive Order 12856.

 

 

CLAUSE I.30 - FAR 52.223-12  REFRIGERATION EQUIPMENT AND AIR CONDITIONERS (MAY 1995)

 

The Contractor shall comply with the applicable requirements of Sections 608 and 609 of the Clean Air Act (42 U.S.C. 7671g and 7671h) as each or both apply to this contract.

 

 

CLAUSE I.31 - FAR 52.224-1  PRIVACY ACT NOTIFICATION (APR 1984)

 

The Contractor will be required to design, develop, or operate a system of records on individuals to accomplish an agency function subject to the Privacy Act of 1974, Public Law 93‑579, December 31, 1974 (5 U.S.C. 552a) and applicable agency regulations.  Violation of the Act may involve the imposition of criminal penalties.

 

 

CLAUSE I.32 - FAR 52.224-2  PRIVACY ACT (APR 1984)

 

(a)       The Contractor agrees to:

 

            (1)          Comply with the Privacy Act of 1974 (the Act) and the agency rules and regulations issued under the Act in the design, development, or operation of any system of records on individuals to accomplish an agency function when the contract specifically identifies:

 

                 (i)           The system of records; and

 

                        (ii)             The design, development, or operation work that the Contractor is to perform;

 

            (2)          Include the Privacy Act notification contained in this contract in every solicitation and resulting subcontract and in every subcontract awarded without a solicitation, when the work statement in the proposed subcontract requires the redesign, development, or operation of a system of records on individuals that is subject to the Act; and

 

            (3)          Include this clause, including this subparagraph (3), in all subcontracts awarded under this contract which requires the design, development, or operation of such a system of records.

 

(b)       In the event of violations of the Act, a civil action may be brought against the agency involved when the violation concerns the design, development, or operation of a system of records on individuals to accomplish an agency function, and criminal penalties may be imposed upon the officers or employees of the agency when the violation concerns the operation of a system of records on individuals to accomplish an agency function.  For purposes of the Act, when the contract is for the operation of a system of records on individuals to accomplish an agency function, the Contractor is considered to be an employee of the agency.

 

(c)        (1)          "Operation of a system of records", as used in this Clause, means performance of any of the activities associated with maintaining the system of records, including the collection, use, and dissemination of records.

 

            (2)          "Record", as used in this Clause, means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and that contains the person's name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a fingerprint or voiceprint or a photograph.

 

            (3)            "System of records on individuals," as used in this Clause, means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

 

 

CLAUSE I.33 FAR 52.225-1  Buy American Act--Balance of Payments Program--supplies (FEB 2000)

 

(a)               Definitions.  As used in this clause --

 

"Component" means any item supplied to the Government as part of an end item or of another component.

 

            "Cost of components" means --

 

            (1)            For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

 

            (2)            For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit.  Cost of components does not include any costs associated with the manufacture of the end product.

 

            "Domestic end product" means --

 

            (1)            An unmanufactured end product mined or produced in the United States; or

 

            (2)            An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components.  Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic.  Scrap generated, collected, and prepared for processing in the United States is considered domestic.

 

"End product" means supplies delivered under a line item of a Government contract.

 

"Foreign end product" means an end product other than a domestic end product.

 

"United States" means the 50 States and the District of Columbia, U.S. territories and possessions, Puerto Rico, the Northern Mariana Islands, and any other place subject to U.S. jurisdiction, but does not include leased bases.

 

(b)       The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States.  The Balance of Payments Program provides a preference for domestic end products for supplies acquired for use outside the United States.

 

(c)            Offerors may obtain from the Contracting Officer a list of foreign articles that the Contracting Officer will treat as domestic for this contract.

 

(d)       The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the solicitation entitled "Buy American Act--Balance of Payments Program Certificate."

 

 

CLAUSE I.34 - FAR 52.225-11  Buy American Act--Balance of Payments Program--Construction Materials under Trade Agreements (feb 2000)

 

(a)            Definitions.  As used in this clause --

 

"Component" means any article, material, or supply incorporated directly into construction materials.

 

"Construction material" means an article, material, or supply brought to the construction site by the Contractor or subcontractor for incorporation into the building or work.  The term also includes an item brought to the site preassembled from articles, materials, or supplies.  However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site.  Materials purchased directly by the Government are supplies, not construction material.

 

"Cost of components" means --

 

(1)       For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

 

(2)       For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit.  Cost of components does not include any costs associated with the manufacture of the end product.

 

"Designated country" means any of the following countries:

 

Aruba

Germany

Netherlands

Austria

Greece

Niger

Bangladesh

Guinea

Norway

Belgium

Guinea-Bissau

Portugal

Benin

Haiti

Rwanda

Bhutan

Hong Kong

Sao Tome and Principe

Botswana

Ireland

Sierra Leone

Burkina Faso

Israel

Singapore

Burundi

Italy

Somolia

Canada

Japan

Spain

Cape Verde

Kiribati

Sweden

Central African Republic

Korea, Republic of

Switzerland

Chad

Lesotho

Tanzania U.R.

Comoros

Liechtenstein

Togo

Denmark

Luxembourg

Tuvalu

Djibouti

Malawi

Uganda

Equatorial Guinea

Maldives

United Kingdom

Finland

Mali

Vanuatu

France

Mozambique

Western Samoa

Gambia

Nepal

Yemen

 

"Designated country construction material" means a construction material that --

 

(1)       Is wholly the growth, product, or manufacture of a designated country; or

 

(2)       In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a designated country into a new and different construction material distinct from the materials from which it was transformed.

 

"Domestic construction material" means --

 

(1)       An unmanufactured construction material mined or produced in the United States; or

 

(2)       A construction material manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components.  Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic.

 

"Foreign construction material" means a construction material other than a domestic construction material.

 

"North American Free Trade Agreement country" means Canada or Mexico.

 

"North American Free Trade Agreement country construction material" means a construction material that --

 

(1)       Is wholly the growth, product, or manufacture of a North American Free Trade Agreement (NAFTA) country; or

 

(2)       In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a NAFTA country into a new and different construction material distinct from the materials from which it was transformed.

 

"United States" means the 50 States and the District of Columbia, U.S. territories and possessions, Puerto Rico, the Northern Mariana Islands, and any other place subject to U.S. jurisdiction, but does not include leased bases.

 

(b)            Construction materials.

 

(1)       This clause implements the Buy American Act (41 U.S.C.10a - 10d) and the Balance of Payments Program by providing a preference for domestic construction material.  In addition, the Contracting Officer has determined that the Trade Agreements Act and the North American Free Trade Agreement (NAFTA) apply to this acquisition.  Therefore, the Buy American Act and Balance of Payments Program restrictions are waived for designated country and NAFTA country construction materials.

 

(2)       The Contractor shall use only domestic, designated country, or NAFTA country construction material in performing this contract, except as provided in paragraphs (b)(3) and (b)(4) of this clause.

 

(3)       The requirement in paragraph (b)(2) of this clause does not apply to the construction materials or components listed by the Government as follows:

 

                                                                        None                                                              

 

 

(4)       The Contracting Officer may add other foreign construction material to the list in paragraph (b)(3) of this clause if the Government determines that --

 

(i)            The cost of domestic construction material would be unreasonable.  The cost of a particular domestic construction material subject to the restrictions of the Buy American Act is unreasonable when the cost of such material exceeds the cost of foreign material by more than 6 percent.  For determination of unreasonable cost under the Balance of Payments Program, the Contracting Officer will use a factor of 50 percent;

 

(ii)            The application of the restriction of the Buy American Act or Balance of Payments Program to a particular construction material would be impracticable or inconsistent with the public interest; or

 

(iii)            The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

 

(c)               Request for determination of inapplicability of the Buy American Act or Balance of Payments Program.

 

(1)            (i)             Any Contractor request to use foreign construction material in accordance with paragraph (b)(4) of this clause shall include adequate information for Government evaluation of the request, including --

 

(A)              A description of the foreign and domestic construction materials;

 

(B)             Unit of measure;

 

(C)            Quantity;

 

(D)            Price;

 

(E)            Time of delivery or availability;

 

(F)            Location of the construction project;

 

(G)            Name and address of the proposed supplier; and

 

(H)            A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(3) of this clause.

 

(ii)            A request based on unreasonable cost shall include a reasonable survey of the market and a completed price comparison table in the format in paragraph (d) of this clause.

 

(iii)            The price of construction material shall include all delivery costs to the construction site and any applicable duty (whether or not a duty-free certificate may be issued).

 

(iv)            Any Contractor request for a determination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such determination and could not have requested the determination before contract award.  If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination.

 

(2)       If the Government determines after contract award that an exception to the Buy American Act or Balance of Payments Program applies and the Contracting Officer and the Contractor negotiate adequate consideration, the Contracting Officer will modify the contract to allow use of the foreign construction material.  However, when the basis for the exception is the unreasonable price of a domestic construction material, adequate consideration is not less than the differential established in paragraph (b)(4)(i) of this clause.

 

(3)       Unless the Government determines that an exception to the Buy American Act or Balance of Payments Program applies, use of foreign construction material is noncompliant with the Buy American Act or Balance of Payments Program.

 

(d)       Data.  To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall include the following information and any applicable supporting data based on the survey of suppliers:

 

                       Foreign and Domestic Construction Materials Price Comparison

 

Construction       Unit of      Quantity       Price

Material      Measure             (Dollars)*

Description

                                                 

Item 1:

 

Foreign

Construction

Material                        _______                         _______        _______

 

                       

Domestic

Construction

material                         _______                         _______         _______

           

Item 2:

 

Foreign

Construction

Material                     _______        _______                         _______

                       

Domestic

Construction

material                      _______         _______                                _______

 

[List name, address, telephone number, and contact for suppliers surveyed.  Attach copy of response; if oral, attach summary.]

 

[Include other applicable supporting information.]

 

[* Include all delivery costs to the construction site and any applicable duty (whether or not a duty-free entry certificate is issued).]

 

 

CLAUSE I.35 - FAR 52.225-13  Restrictions on Certain Foreign Purchases (JUL 2000)

 

(a)       The Contractor shall not acquire, for use in the performance of this contract, any supplies or services originating from sources within, or that were located in or transported from or through, countries whose products are banned from importation into the United States under regulations of the Office of Foreign Assets Control, Department of the Treasury.  Those countries are Cuba, Iran, Iraq, Libya, North Korea, Sudan, the territory of Afghanistan controlled by the Taliban, and Serbia (excluding the territory of Kosovo).

 

(b)       The Contractor shall not acquire for use in the performance of this contract any supplies or services from entities controlled by the government of Iraq.

 

(c)        The Contractor shall insert this clause, including this paragraph (c), in all subcontracts.

 

 

CLAUSE I.36 - RESERVED

 

 

 

 

CLAUSE I.37 - FAR 52.229-8  TAXES -- FOREIGN COST-REIMBURSEMENT CONTRACTS (MAR 1990)

 

(a)       Any tax or duty from which the United States Government is exempt by agreement with the Government of the successor states of the former Soviet Union, (the Ukraine, Belarus, Kazakstan, Russia, the Baltic States of Latvia and Lithuania, and Uzbekistan) or from which the Contractor or any subcontractor under this contract is exempt under the laws of the successor states of the former Soviet Union, (the Ukraine, Belarus, Kazakstan, Russia, the Baltic States of Latvia and Lithuania, and Uzbekistan)  shall not constitute an allowable cost under this contract.

 

(b)       If the Contractor or subcontractor under this contract obtains a foreign tax credit that reduces its Federal income tax liability under the United States Internal Revenue Code (Title 26, U.S. Code) because of the payment of any tax or duty that was reimbursed under this contract, the amount of the reduction shall be paid or credited at the time of such offset to the Government of the United States as the Contracting Officer directs.

 

 

CLAUSE I.38 - FAR 52.230-2  COST ACCOUNTING STANDARDS (APR 1998)

 

(a)       Unless the contract is exempt under 48 CFR 9903.201-1 and 9903.201-2, the provisions of 48 CFR, Part 9903 are incorporated herein by reference and the Contractor, in connection with this contract, shall --

 

            (1)       (CAS-covered Contracts Only)  By submission of a Disclosure Statement, disclose, in writing, the Contractor's cost accounting practices as required by 48 CFR 9903.202-1 through 9903.202-5, including methods of distinguishing direct costs from indirect costs and the basis used for allocating indirect costs.  The practices disclosed for this contract shall be the same as the practices currently disclosed and applied on all other contracts and subcontracts being performed by the Contractor and which contain a Cost Accounting Standards (CAS) clause.  If the Contractor has notified the Contracting Officer that the Disclosure Statement contains trade secrets and commercial or financial information which is privileged and confidential, the Disclosure Statement shall be protected and shall not be released outside of the Government.

 

            (2)       Follow consistently the Contractor's cost accounting practices in accumulating and reporting contract performance cost data concerning this contract.  If any change in cost accounting practices is made for the purposes of any contract or subcontract subject to CAS requirements, the change must be applied prospectively to this contract and the Disclosure Statement must be amended accordingly.  If the contract price or cost allowance of this contract is affected by such changes, adjustment shall be made in accordance with subparagraph (a)(4) or (a)(5) of this Clause, as appropriate.

 

            (3)       Comply with all CAS, including any modifications and interpretations indicated thereto contained in 48 CFR, Part 9904, in effect on the date of award of this contract or, if the Contractor has submitted cost or pricing data, on the date of final agreement on price as shown on the Contractor's signed certificate of current cost or pricing data.  The Contractor shall also comply with any CAS (or modifications to CAS) which hereafter become applicable to a contract or subcontract of the Contractor.  Such compliance shall be required prospectively from the date of applicability to such contract or subcontract.

 

(4)            (i)            Agree to an equitable adjustment as provided in the Changes clause of this contract if the contract cost is affected by a change which, pursuant to subparagraph (a)(3) of this Clause, the Contractor is required to make to the Contractor's established cost accounting practices.

 

(ii)            Negotiate with the Contracting Officer to determine the terms and conditions under which a change may be made to a cost accounting practice, other than a change made under other provisions of subparagraph (a)(4) of this Clause; provided that no agreement may be made under this provision that will increase costs paid by the United States.

 

(iii)            When the Parties agree to a change to a cost accounting practice, other than a change under subdivision (a)(4)(i) of this Clause, negotiate an equitable adjustment as provided in the Changes clause of this contract.

 

(5)       Agree to an adjustment of the contract price or cost allowance, as appropriate, if the Contractor or a subcontractor fails to comply with an applicable Cost Accounting Standard, or to follow any cost accounting practice consistently and such failure results in any increased costs paid by the United States.  Such adjustment shall provide for recovery of the increased costs to the United States, together with interest thereon computed at the annual rate established under Section 6621 of the Internal Revenue Code of 1986 (26 U.S.C. 6621) for such period, from the time the payment by the United States was made to the time the adjustment is effected.  In no case shall the Government recover costs greater than the increased cost to the Government, in the aggregate, on the relevant contracts subject to the price adjustment, unless the Contractor made a change in its cost accounting practices of which it was aware or should have been aware at the time of price negotiations and which it failed to disclose to the Government.

 

(b)       If the Parties fail to agree whether the Contractor or a subcontractor has complied with an applicable CAS in 48 CFR Part 9904 or a CAS rule or regulation in 48 CFR Part 9903 and as to any cost adjustment demanded by the United States, such failure to agree will constitute a dispute under the Contract Disputes Act (41 U.S.C. 601).

 

(c)        The Contractor shall permit any authorized representatives of the Government to examine and make copies of any documents, papers, or records relating to compliance with the requirements of this clause.

 

(d)       The Contractor shall include in all negotiated subcontracts which the Contractor enters into, the substance of this clause, except paragraph (b), and shall require such inclusion in all other subcontracts, of any tier, including the obligation to comply with all CAS in effect on the subcontractor's award date or if the subcontractor has submitted cost or pricing data, on the date of final agreement on price as shown on the subcontractor's signed Certificate of Current Cost or Pricing Data.  If the subcontract is awarded to a business unit which pursuant to 48 CFR 9903.201-2 is subject to other types of CAS coverage, the substance of the applicable clause set forth in subsection 30.201-4 of the Federal Acquisition Regulation shall be inserted.  This requirement shall apply only to negotiated subcontracts in excess of $500,000, except that the requirement shall not apply to negotiated subcontracts otherwise exempt from the requirement to include a CAS clause as specified in 48 CFR 9903.201-1.

 

 

CLAUSE I.39 - FAR 52.230-6  Administration of Cost Accounting Standards (NOV 1999)

 

For the purpose of administering the Cost Accounting Standards (CAS) requirements under this contract, the Contractor shall take the steps outlined in paragraphs (a) through (g) of this clause:

 

(a)            Submit to the Contracting Officer a description of any cost accounting practice change, the total potential impact of the change on contracts containing a CAS clause, and a general dollar magnitude of the change which identifies the potential shift of costs between CAS-covered contracts by contract type (i.e., firm-fixed-price, incentive, cost-plus-fixed fee, etc.) and other contractor business activity. As related to CAS-covered contracts, the analysis should identify the potential impact on funds of the various Agencies/Departments (i.e., Department of Energy, National Aeronautics and Space Administration, Army, Navy, Air Force, other Department of Defense, other Government) as follows:

 

(1)              For any change in cost accounting practices required in accordance with subparagraph (a)(3) and subdivision (a)(4)(i) of the clause at FAR 52.230-2, Cost Accounting Standards; or subparagraph (a)(3) and subdivisions (a)(4)(i) or (a)(4)(iv) of the clause at FAR 52.230-5, Cost Accounting Standards--Educational Institution; within 60 days (or such other date as may be mutually agreed to) after award of a contract requiring this change. 

 

(2)              For any change in cost accounting practices proposed in accordance with subdivision (a)(4)(ii) or (iii) of the clauses at FAR 52.230-2, Cost Accounting Standards, and FAR 52.230-5, Cost Accounting Standards--Educational Institution; or with subparagraph (a)(3) of the clause at FAR 52.230-3, Disclosure and Consistency of Cost Accounting Practices, not less than 60 days (or such other date as may be mutually agreed to) before the effective date of the proposed change.

 

            (3)            For any failure to comply with an applicable CAS or to follow a disclosed practice (as contemplated by subparagraph (a)(5) at FAR 52.230-2, Cost Accounting Standards, and FAR 52.230-5, Cost Accounting Standards--Educational Institution; or by subparagraph (a)(4) at FAR 52.230-3, Disclosure and Consistency of Cost Accounting Practices):

 

                        (i)            Within 60 days (or such other date as may be mutually agreed to) after the date of agreement with the initial finding of noncompliance, or

 

                        (ii)            In the event of Contractor disagreement with the initial finding of noncompliance, within 60 days of the date the Contractor is notified by the Contracting Officer of the determination of noncompliance.

 

(b)       After an ACO, or cognizant Federal agency official, determination of materiality, submit a cost impact proposal in the form and manner specified by the Contracting Officer within 60 days (or such other date as may be mutually agreed to) after the date of determination of the adequacy and compliance of a change submitted pursuant to paragraph (a) of this clause.  The cost impact proposal shall be in sufficient detail to permit evaluation, determination, and negotiation of the cost impact upon each separate CAS-covered contract and subcontract.

 

            (1)            Cost impact proposals submitted for changes in cost accounting practices required in accordance with subparagraph (a)(3) and subdivision (a)(4)(i) of the clause at FAR 52.230-2, Cost Accounting Standards; or subparagraph (a)(3) and subdivisions (a)(4)(i) or (a)(4)(iv) of the clause at FAR 52.230-5, Cost Accounting Standards--Educational Institution; shall identify the applicable standard or cost principle and all contracts and subcontracts containing the clauses entitled Cost Accounting Standards or Cost Accounting Standards--Educational Institution, which have an award date before the effective date of that standard or cost principle.

 

            (2)            Cost impact proposals submitted for any change in cost accounting practices proposed in accordance with subdivisions (a)(4)(ii) or (iii) of the clauses at FAR 52.230-2, Cost Accounting Standards, and FAR 52.230-5, Cost Accounting Standards--Educational Institution; or with subparagraph (a)(3) of the clause at FAR 52.230-3, Disclosure and Consistency of Cost Accounting Practices; shall identify all contracts and subcontracts containing the clauses at FAR 52.230-2, Cost Accounting Standards, FAR 52.230-5, Cost Accounting Standards--Educational Institution, and FAR 52.230-3, Disclosure and Consistency of Cost Accounting Practices.

 

            (3)            Cost impact proposals submitted for failure to comply with an applicable CAS or to follow a disclosed practice as contemplated by subparagraph (a)(5) of the clauses at FAR 52.230-2, Cost Accounting Standards, and FAR 52.230-5, Cost Accounting Standards--Educational Institution; or by subparagraph (a)(4) of the clause at FAR 52.230-3, Disclosure and Consistency of Cost Accounting Practices, shall identify the cost impact on each separate CAS covered contract from the date of failure to comply until the noncompliance is corrected.

 

(c)        If the submissions required by paragraphs (a) and (b) of this clause are not submitted within the specified time, or any extension granted by the Contracting Officer, an amount not to exceed 10 percent of each subsequent amount determined payable related to the Contractor's CAS-covered prime contracts, up to the estimated general dollar magnitude of the cost impact, may be withheld until such time as the required submission has been provided in the form and manner specified by the Contracting Officer.

 

(d)       Agree to appropriate contract and subcontract amendments to reflect adjustments established in accordance with subparagraphs (a)(4) and (a)(5) of the clauses at FAR 52.230-2 and 52.230-5; or with subparagraphs (a)(3) or (a)(4) of the Disclosure and Consistency of Cost Accounting Practices clause at FAR 52.230-3.

 

(e)       For all subcontracts subject to the clauses at FAR 52.230-2, 52.230-3, or

52.230-5 --

           

            (1)             So state in the body of the subcontract, in the letter of award, or in both (self-deleting clauses shall not be used);

 

            (2)            Include the substance of this clause in all negotiated subcontracts; and

 

(3)            Within 30 days after award of the subcontract, submit the following information to the Contractor's cognizant contract administration office for transmittal to the contract administration office cognizant of the subcontractor's facility:

 

                        (i)             Subcontractor's name and subcontract number.

 

                        (ii)             Dollar amount and date of award.

 

                        (iii)             Name of Contractor making the award.

 

(f)         Notify the Contracting Officer in writing of any adjustments required to subcontracts under this contract and agree to an adjustment, based on them, to this contract price or estimated cost and fee.  This notice is due within 30 days after proposed subcontract adjustments are received and shall include a proposal for adjusting the higher tier subcontract or the prime contract appropriately.

 

(g)       For subcontracts containing the clauses at FAR 52.230-2 or 52.230-5, require the subcontractor to comply with all Standards in effect on the date of award or of final agreement on price, as shown on the subcontractor's signed Certificate of Current Cost or Pricing Data, whichever is earlier.

 

 

CLAUSE I.40 - FAR 52.232-17  INTEREST (JUN 1996)

 

(a)       Except as otherwise provided in this contract under a Price Reduction for Defective Cost or Pricing Data clause or a Cost Accounting Standards clause, all amounts that become payable by the Contractor to the Government under this contract (net of any applicable tax credit under the Internal Revenue Code (26 U.S.C. 1481)) shall bear simple interest from the date due until paid unless paid within 30 days of becoming due.  The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in Section 12 of the Contract Disputes Act of 1978 (Public Law 95-563), which is applicable to the period in which the amount becomes due, as provided in paragraph (b) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

 

(b)            Amounts shall be due at the earliest of the following dates:

 

            (1)            The date fixed under this contract.

 

(2)            The date of the first written demand for payment consistent with this contract, including any demand resulting from a default termination.

 

(3)            The date the Government transmits to the Contractor a proposed supplemental agreement to confirm completed negotiations establishing the amount of debt.

 

(4)            If this contract provides for revision of prices, the date of written notice to the Contractor stating the amount of refund payable in connection with a pricing proposal or a negotiated pricing agreement not confirmed by contract modification.

 

(c)        The interest charge made under this clause may be reduced under the procedures prescribed in 32.614-2 of the Federal Acquisition Regulation in effect on the date of this contract.

 

 

CLAUSE I.41 - FAR 52.232-18  AVAILABILITY OF FUNDS (APR 1984)

 

Funds are not presently available for this contract.  The Government’s obligation under this contract is contingent upon the availability of appropriated funds from which payment for contract purposes can be made.  No legal liability on the part of the Government for any payment may arise until funds are made available to the Contracting Officer for this contract and until the Contractor receives notice of such availability, to be confirmed in writing by the Contracting Officer.

 

 

CLAUSE I.42 - FAR 52.232-24  Prohibition of Assignment of Claims (JAN 1986)

 

The assignment of claims under the Assignment of Claims Act of 1940, as amended, 31

U.S.C. 3727, 41 U.S.C. 15, is prohibited for this contract.

 

 

CLAUSE I.43 - FAR 52.233-1 Disputes (Dec 1998) (ALTERNATE I) (DEC 1991)

 

(a)               This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C.601-613).

 

(b)       Except as provided in the Act, all disputes arising under or relating to this contract shall be resolved under this clause.

 

(c)   "Claim," as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.  A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant.  However, a written demand or written assertion by the Contractor seeking the payment of money exceeding $100,000 is not a claim under the Act until certified as required by subparagraph (d)(2) of this clause.  A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act.  The submission may be converted to a claim under the Act, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time.

 

(d)       (1)            A claim by the Contractor shall be made in writing and, unless otherwise stated in this contract, submitted within 6 years after accrual of the claim to the Contracting Officer for a written decision.  A claim by the Government against the Contractor shall be subject to a written decision by the Contracting Officer.

 

(2)            (i)            The Contractor shall provide the certification specified in paragraph (d)(2)(iii) of this clause when submitting any claim exceeding $100,000.

 

                        (ii)            The certification requirement does not apply to issues in controversy that have not been submitted as all or part of a claim.

 

                        (iii)            The certification shall state as follows:  "I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the Contractor."

 

            (3)             The certification may be executed by any person duly authorized to bind the Contractor with respect to the claim.

 

(e)       For Contractor claims of $100,000 or less, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request.  For Contractor-certified claims over $100,000, the Contracting Officer must, within 60 days, decide the claim or notify the Contractor of the date by which the decision will be made.

 

(f)         The Contracting Officer's decision shall be final unless the Contractor appeals or files a suit as provided in the Act.

 

(g)       If the claim by the Contractor is submitted to the Contracting Officer or a claim by the Government is presented to the Contractor, the parties, by mutual consent, may agree to use alternative dispute resolution (ADR).  If the Contractor refuses an offer for ADR, the Contractor shall inform the Contracting Officer, in writing, of the Contractor's specific reasons for rejecting the offer.

 

(h)        The Government shall pay interest on the amount found due and unpaid from (1) the date that the Contracting Officer receives the claim (certified, if required); or (2) the date that payment otherwise would be due, if that date is later, until the date of payment.  With regard to claims having defective certifications, as defined in FAR 33.201, interest shall be paid from the date that the Contracting Officer initially receives the claim.  Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Contracting Officer receives the claim and then at the rate applicable for each 6-month period as fixed by the Treasury Secretary during the pendency of the claim.

(i)         The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under or relating to the contract, and comply with any decision of the Contracting Officer.

 

 

CLAUSE I.44 - FAR 52.233-3  PROTEST AFTER AWARD (AUG 1996) (ALTERNATE I) (JUNE 1985)

 

(a)       Upon receipt of a notice of protest (as defined in 33.101 of the FAR) the Contracting Officer may, by written order to the Contractor, direct the Contractor to stop performance of the work called for by this contract.  The order shall be specifically identified as a stop-work order issued under this clause.  Upon receipt of the order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage.  Upon receipt of the final decision in the protest, the Contracting Officer shall either --

 

            (1)          Cancel the stop-work order; or

 

(2)              Terminate the work covered by the order as provided in the Termination clause of this contract.

 

(b)       If a stop-work order issued under this clause is cancelled either before or after a final decision in the protest, the Contractor shall resume work.  The Contracting Officer shall make an equitable adjustment in the delivery schedule, the estimated cost, the fee, or a combination thereof, and in any other terms of the contract that may be affected, and the contract shall be modified, in writing, accordingly, if - 

 

            (1)          The stop-work order results in an increase in the time required for, or in the Contractor's cost properly allocable to, the performance of any part of this contract; and

 

            (2)          The Contractor asserts its right to an adjustment within thirty (30) days after the end of the period of work stoppage; provided, that if the Contracting Officer decides the facts justify the action, the Contracting Officer may receive and act upon a proposal at any time before final payment under this contract.

 

(c)        If a stop-work order is not cancelled and the work covered by the order is terminated for the convenience of the Government, the Contracting Officer shall allow reasonable costs resulting from the stop-work order in arriving at the termination settlement.

 

(d)       If a stop-work order is not cancelled and the work covered by the order is terminated for default, the Contracting Officer shall allow, by equitable adjustment or otherwise, reasonable costs resulting from the stop-work order.

(e)       The Government's rights to terminate this contract at any time are not affected by action taken under this Clause.

 

(f)         If, as the result of the Contractor's intentional or negligent misstatement, misrepresentation, or miscertification, a protest related to this contract is sustained, and the Government pays costs, as provided in FAR 33.102(b)(2) or 33.104(h)(1), the Government may require the Contractor to reimburse the Government the amount of such costs.

 

 

CLAUSE I.45 - FAR 52.236-8  OTHER CONTRACTS (APR 1984)

 

The Government may undertake or award other contracts for additional work at or near the site of the work under this contract.  The Contractor shall fully cooperate with the other contractors and with Government employees and shall carefully adapt scheduling and performing the work under this contract to accommodate the additional work, heeding any direction that may be provided by the Contracting Officer.  The Contractor shall not commit or permit any act that will interfere with the performance of work by any other contractor or by Government employees.

 

 

CLAUSE I.46 - FAR 52.237-3  CONTINUITY OF SERVICES (JAN 1991)

            

(a)       The Contractor recognizes that the services under this contract are vital to the Government and must be continued without interruption and that, upon contract expiration, a successor, either the Government or another Contractor, may continue them.  The Contractor agrees to (1) furnish phase-in training, and (2) exercise its best efforts and cooperation to effect an orderly and efficient transition to a successor.

 

(b)       The Contractor shall, upon the Contracting Officer's written notice, (1) furnish phase-in, phase-out services for up to ninety (90) days after this contract expires and (2) negotiate in good faith a plan with a successor to determine the nature and extent of phase-in, phase-out services required.  The plan shall specify a training program and a date for transferring responsibilities for each division of work described in the plan, and shall be subject to the Contracting Officer's approval.  The Contractor shall provide sufficient experienced personnel during the phase-in, phase-out period to ensure that the services called for by this contract are maintained at the required level of proficiency.

 

(c)        The Contractor shall allow as many personnel as practicable to remain on the job to help the successor maintain the continuity and consistency of the services required by this contract.  The Contractor also shall disclose necessary personnel records and allow the successor to conduct on-site interviews with these employees.  If selected employees are agreeable to the change, the Contractor shall release them at a mutually agreeable date and negotiate transfer of their earned fringe benefits to the successor.

 

(d)       The Contractor shall be reimbursed for all reasonable phase-in, phase-out costs (i.e., costs incurred within the agreed period after contract expiration that result from phase-in, phase-out operations) and a fee (profit) not to exceed a pro rata portion of the fee (profit) under this contract.

 

 

CLAUSE I.47 - FAR 52.242-1  NOTICE OF INTENT TO DISALLOW COSTS (APR 1984)

 

(a)            Notwithstanding any other clause of this contract --

 

            (1)          The Contracting Officer may, at any time, issue to the Contractor a written notice of intent to disallow specified costs incurred or planned for incurrence under this contract that have been determined not to be allowable under the contract terms; and

 

            (2)          The Contractor may, after receiving a notice under subparagraph (1) above, submit a written response to the Contracting Officer, with justification for allowance of the costs.  If the Contractor does respond within sixty (60) days, the Contracting Officer shall, within sixty (60) days of receiving the response, either make a written withdrawal of the notice or issue a written decision.

 

(b)       Failure to issue a notice under this Notice of Intent to Disallow Costs clause shall not affect the Government's rights to take exception to incurred costs.

 

 

CLAUSE I.48 - FAR 52.242-13  BANKRUPTCY (JUL 1995)

 

In the event the Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary, the Contractor agrees to furnish, by certified mail, written notification of the bankruptcy to the Contracting Officer responsible for administering the contract.  This notification shall be furnished within five (5) days of the initiation of the proceedings relating to bankruptcy filing.  This notification shall include the date on which the bankruptcy petition was filed, the identity of the court in which the bankruptcy petition was filed, and a listing of Government contract numbers and contracting offices for all Government contracts against which final payment has not been made.  This obligation remains in effect until final payment under this contract.

 

 

 

 

 

CLAUSE I.49 - FAR 52.244-5  COMPETITION IN SUBCONTRACTING (DEC 1996)

 

(a)       The Contractor shall select subcontractors (including suppliers) on a competitive basis to the maximum practical extent consistent with the objectives and requirements of the contract.

 

(b)       If the Contractor is an approved mentor under the Department of Defense Pilot Mentor-Protege Program (Pub. L. 101-510, section 831 as amended), the Contractor may award subcontracts under this contract on a noncompetitive basis to its proteges.

 

 

CLAUSE I.50 - FAR 52.244-6  Subcontracts for Commercial Items (MAR 2001)

 

(a)            Definitions.  As used in this clause --

 

"Commercial item" has the meaning contained in the clause at 52.202-1, Definitions.

 

"Subcontract" includes a transfer of commercial items between divisions, subsidiaries, or affiliates of the Contractor or subcontractor at any tier.

 

(b)       To the maximum extent practicable, the Contractor shall incorporate, and require its subcontractors at all tiers to incorporate, commercial items or nondevelopmental items as components of items to be supplied under this contract.

 

(c)        (1)            The following clauses shall be flowed down to subcontracts for commercial items:

 

(i)                 52.219-8, Utilization of Small Business Concerns (OCT 2000) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities.  If the subcontract (except subcontracts to small business concerns) exceeds $500,000 ($1,000,000 for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.

 

(ii)               52.222-26, Equal Opportunity (FEB 1999) (E.O. 11246).

 

(iii)             52.222-35, Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era (APR 1998)(38 U.S.C. 4212(a)).

 

(iv)              52.222-36, Affirmative Action for Workers with Disabilities (JUN 1998)(29 U.S.C. 793).

(v)                52.247-64, Preference for Privately Owned U.S.-Flagged Commercial Vessels (JUN 2000) (46 U.S.C. Appx 1241) (flowdown not required for subcontracts awarded beginning May 1, 1996).

 

            (2)            While not required, the Contractor may flow down to subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations.

 

(d)       The Contractor shall include the terms of this clause, including this paragraph (d), in subcontracts awarded under this contract.

 

 

CLAUSE I.51 - FAR 52.247-1  COMMERCIAL BILL OF LADING NOTATIONS (APR 1984)

 

If the Contracting Officer authorizes supplies to be shipped on a commercial bill of lading and the Contractor will be reimbursed these transportation costs as direct allowable costs, the Contractor shall ensure before shipment is made that the commercial shipping documents are annotated with either of the following notations, as appropriate:

 

(a)       If the Government is shown as the consignor or the consignee, the annotation shall be:  "Transportation is for the U.S. Department of Energy and the actual total transportation charges paid to the carrier(s) by the consignor or consignee are assignable to, and shall be reimbursed by, the Government,"

 

(b)       If the Government is not shown as the consignor or the consignee, the annotation shall be:  "Transportation is for the U.S. Department of Energy and the actual total transportation charges paid to the carrier(s) by the consignor or consignee shall be reimbursed by the Government, pursuant to cost-reimbursement Contract No. DE-AC02-768CH03000.  This may be confirmed by contacting the U.S. Department of Energy, Fermi National Accelerator Laboratory, P.O. Box 2000, Batavia, Illinois ".

 

 

CLAUSE I.52 - FAR 52.247-63  PREFERENCE FOR U.S. FLAG AIR CARRIERS (JAN 1997)

 

(a)            "International air transportation", as used in this clause, means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States.

 

"United States", as used in this clause, means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and possessions of the United States.

 

"U.S.-Flag air carrier,” as used in this clause, means an air carrier holding a certificate under 49 U.S.C. Chapter 411.

 

(b)            Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118)(Fly America-Act) requires that all Federal agencies and Government Contractors and subcontractors use U.S.-flag air carriers for U.S. Government-financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available.  It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign-flag air transportation, to disallow expenditures from funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services.

 

(c)        The Contractor agrees, in performing work under this contract, to use U.S.-flag air carriers for international air transportation of personnel (and their personal effects) or property to the extent that service by those carriers is available.

 

(d)       In the event that the Contractor selects a carrier other than a U.S.-flag air carrier for international air transportation, the Contractor shall include a statement on vouchers involving such transportation essentially as follows:

 

 

STATEMENT OF UNAVAILABILITY OF U.S.-FLAG AIR CARRIERS

 

International air transportation of persons (and their personal effects) or property by U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons (see Section 47.403 of the Federal Acquisition Regulation):

 

              [State reasons]:                                           

 

           (End of Statement)

 

(e)       The Contractor shall include the substance of this clause, including this paragraph (e), in each subcontract or purchase order under this contract that may involve international air transportation.

 

 

CLAUSE I.53 - FAR 52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels (JUN 2000)

 

(a)       The Cargo Preference Act of 1954 (46 U.S.C. 1241(b)) requires that Federal departments and agencies shall transport in privately owned U.S.-flag commercial vessels at least 50 percent of the gross tonnage of equipment, materials, or commodities that may be transported in ocean vessels (computed separately for dry bulk carriers, dry cargo liners, and tankers).  Such transportation shall be accomplished when any equipment, materials, or commodities, located within or outside the United States, that may be transported by ocean vessel are --

 

            (1)            Acquired for a U.S. Government agency account;

 

            (2)            Furnished to, or for the account of, any foreign nation without provision for reimbursement;

 

(3)            Furnished for the account of a foreign nation in connection with which the United States advances funds or credits, or guarantees the convertibility of foreign currencies; or

 

            (4)            Acquired with advance of funds, loans, or guaranties made by or on behalf of the United States.

 

(b)       The Contractor shall use privately owned U.S.-flag commercial vessels to ship at least 50 percent of the gross tonnage involved under this contract (computed separately for dry bulk carriers, dry cargo liners, and tankers) whenever shipping any equipment, materials, or commodities under the conditions set forth in paragraph (a) of this clause, to the extent that such vessels are available at rates that are fair and reasonable for privately owned U.S.-flag commercial vessels.

 

(c)        (1)                   The Contractor shall submit one legible copy of a rated on-board ocean bill of lading for each shipment to both --

 

                        (i)             The Contracting Officer, and

                       

                        (ii)            The:

                                    Office of Cargo Preference

                                    Maritime Administration (MAR-590)

                                                400 Seventh Street, SW

                                                Washington DC 20590.

 

Subcontractor bills of lading shall be submitted through the Prime Contractor.

 

            (2)            The Contractor shall furnish these bill of lading copies (i) within 20 working days of the date of loading for shipments originating in the United States, or (ii) within 30 working days for shipments originating outside the United States.  Each bill of lading copy shall contain the following information:

 

                        (A)            Sponsoring U.S. Government agency.

 

                        (B)            Name of vessel.

                        (C)             Vessel flag of registry.

 

(D)             Date of loading.

 

(E)            Port of loading.

 

(F)            Port of final discharge.

 

(G)            Description of commodity.

 

                        (H)            Gross weight in pounds and cubic feet if available.

 

                        (I)             Total ocean freight revenue in U.S. dollars.

 

(d)       The Contractor shall insert the substance of this clause, including this paragraph (d), in all subcontracts or purchase orders under this contract.

 

(e)       The requirement in paragraph (a) does not apply to --

 

            (1)            Cargoes carried in vessels of the Panama Canal Commission or as required or authorized by law or treaty;

 

            (2)            Ocean transportation between foreign countries of supplies purchased with foreign currencies made available, or derived from funds that are made available, under the Foreign Assistance Act of 1961 (22 U.S.C. 2353); and

 

            (3)            Shipments of classified supplies when the classification prohibits the use of non-Government vessels.

 

(f)            Guidance regarding fair and reasonable rates for privately owned U.S.-flag commercial vessels may be obtained from the:

 

                                 Office of Costs and Rates

                                 Maritime Administration

            400 Seventh Street, SW

            Washington DC 20590

            Phone: 202-366-4610.

 

 

CLAUSE I.54 - FAR 52.247-67  SUBMISSION OF COMMERCIAL TRANSPORTATION BILLS TO THE GENERAL SERVICES ADMINISTRATION FOR AUDIT (JUN 1997)

 

(a)       (1)            In accordance with paragraph (a)(2) of this clause, the Contractor shall submit to the General Services Administration (GSA) for audit, legible copies of all paid freight bills/invoices, commercial bills of lading (CBL’s), passenger coupons, and other supporting documents for transportation services on which the United States will assume freight charges that were paid --

 

                        (i)            By the Contractor under a cost-reimbursement contract; and

 

                        (ii)            By a first-tier subcontractor under a cost-reimbursement subcontract thereunder.

 

            (2)            Cost-reimbursement Contractors shall only submit for audit those CBL’s with freight shipment charges exceeding $50.00.  Bills under $50.00 shall be retained on-site by the Contractor and made available for GSA on-site audits.  This exception only applies to freight shipment bills and is not intended to apply to bills and invoices for any other transportation services.

 

(b)       The Contractor shall forward copies of paid freight bills/invoices, CBL’s, passenger coupons, and supporting documents as soon as possible following the end of the month, in one package to the:

 

General Services Administration

Attn:  FWA

1800 F Street, NW

Washington, DC  20405

 

 

The Contractor shall include the paid freight bills/invoices, CBL’s, passenger coupons, and supporting documents for first-tier subcontractors under a cost-reimbursement contract.  If the inclusion of the paid freight bills/invoices, CBL’s, passenger coupons, and supporting documents for any subcontractor in the shipment is not practicable, the documents may be forward to GSA in a separate package.

 

(c)        Any original transportation bills or other documents requested by GSA shall be forwarded promptly by the Contractor to GSA.  The Contractor shall ensure that the name of the contracting agency is stamped or written on the face of the bill before sending it to GSA.

 

(d)       A statement prepared in duplicate by the Contractor shall accompany each shipment of transportation documents.  GSA will acknowledge receipt of the shipment by signing and returning the copy of the statement.  The statement shall show --

 

            (1)            The name and address of the Contractor;

 

            (2)            The contract number including any alpha-numeric prefix identifying the Contracting Office;

            (3)            The name and address of the Contracting Office;

 

            (4)            The total number of bills submitted with the statement; and

 

            (5)            A listing of the respective amounts paid or, in lieu of such listing, an adding machine tape of the amounts paid showing the Contractor’s voucher or check numbers.

 

 

CLAUSE I.55 - FAR 52.249-6  Termination (Cost-Reimbursement)(SEP 1996); MODIFIED BY DEAR 970.4905-1 (DEC 2000)

 

(a)       The Government may terminate performance of work under this contract in whole or, from time to time, in part, if --

 

            (1)            The Contracting Officer determines that a termination is in the Government's interest; or

 

            (2)            The Contractor defaults in performing this contract and fails to cure the default within 10 days (unless extended by the Contracting Officer) after receiving a notice specifying the default.  "Default" includes failure to make progress in the work so as to endanger performance.

 

(b)       The Contracting Officer shall terminate by delivering to the Contractor a Notice of Termination specifying whether termination is for default of the Contractor or for convenience of the Government, the extent of termination, and the effective date. If, after termination for default, it is determined that the Contractor was not in default or that the Contractor's failure to perform or to make progress in performance is due to causes beyond the control and without the fault or negligence of the Contractor as set forth in the Excusable Delays clause, the rights and obligations of the parties will be the same as if the termination was for the convenience of the Government.

 

(c)        After receipt of a Notice of Termination, and except as directed by the Contracting Officer, the Contractor shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due under this clause:

 

            (1)            Stop work as specified in the notice.

 

            (2)            Place no further subcontracts or orders (referred to as subcontracts in this clause), except as necessary to complete the continued portion of the contract.

 

            (3)            Terminate all subcontracts to the extent they relate to the work terminated.

 

            (4)            Assign to the Government, as directed by the Contracting Officer, all right, title, and interest of the Contractor under the subcontracts terminated, in which case the Government shall have the right to settle or to pay any termination settlement proposal arising out of those terminations.

 

            (5)            With approval or ratification to the extent required by the Contracting Officer, settle all outstanding liabilities and termination settlement proposals arising from the termination of subcontracts, the cost of which would be reimbursable in whole or in part, under this contract; approval or ratification will be final for purposes of this clause.

 

            (6)            Transfer title (if not already transferred) and, as directed by the Contracting Officer, deliver to the Government --

 

                        (i)            The fabricated or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated;

 

                        (ii)            The completed or partially completed plans, drawings, information, and other property that, if the contract had been completed, would be required to be furnished to the Government; and

 

                        (iii)            The jigs, dies, fixtures, and other special tools and tooling acquired or manufactured for this contract, the cost of which the Contractor has been or will be reimbursed under this contract.

 

            (7)            Complete performance of the work not terminated.

 

            (8)            Take any action that may be necessary, or that the Contracting Officer may direct, for the protection and preservation of the property related to this contract that is in the possession of the Contractor and in which the Government has or may acquire an interest.

 

            (9)            Use its best efforts to sell, as directed or authorized by the Contracting Officer, any property of the types referred to in subparagraph (c)(6) of this clause; provided, however, that the Contractor (i) is not required to extend credit to any purchaser and (ii) may acquire the property under the conditions prescribed by, and at prices approved by, the Contracting Officer.  The proceeds of any transfer or disposition will be applied to reduce any payments to be made by the Government under this contract, credited to the price or cost of the work, or paid in any other manner directed by the Contracting Officer.

 

(d)       The Contractor shall submit complete termination inventory schedules no later than 120 days from the effective date of termination, unless extended in writing by the Contracting Officer upon written request of the Contractor within this 120-day period.

 

(e)       After expiration of the plant clearance period as defined in Subpart 45.6 of the Federal Acquisition Regulation, the Contractor may submit to the Contracting Officer a list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the Contracting Officer.  The Contractor may request the Government to remove those items or enter into an agreement for their storage.  Within 15 days, the Government will accept the items and remove them or enter into a storage agreement.  The Contracting Officer may verify the list upon removal of the items, or if stored, within 45 days from submission of the list, and shall correct the list, as necessary, before final settlement.

 

(f)         After termination, the Contractor shall submit a final termination settlement proposal to the Contracting Officer in the form and with the certification prescribed by the Contracting Officer.  The Contractor shall submit the proposal promptly, but no later than 1 year from the effective date of termination, unless extended in writing by the Contracting Officer upon written request of the Contractor within this 1-year period. However, if the Contracting Officer determines that the facts justify it, a termination settlement proposal may be received and acted on after 1 year or any extension.  If the Contractor fails to submit the proposal within the time allowed, the Contracting Officer may determine, on the basis of information available, the amount, if any, due the Contractor because of the termination and shall pay the amount determined.

 

(g)            Subject to paragraph (f) of this clause, the Contractor and the Contracting Officer may agree on the whole or any part of the amount to be paid (including an allowance for fee) because of the termination.  The contract shall be amended, and the Contractor paid the agreed amount.

 

(h)        If the Contractor and the Contracting Officer fail to agree in whole or in part on the amount of costs and/or fee to be paid because of the termination of work, the Contracting Officer shall determine, on the basis of information available, the amount, if any, due the Contractor, and shall pay that amount, which shall include the following:

 

            (1)            All costs reimbursable under this contract, not previously paid, for the performance of this contract before the effective date of the termination, and those costs that may continue for a reasonable time with the approval of or as directed by the Contracting Officer; however, the Contractor shall discontinue those costs as rapidly as practicable.

 

            (2)            The cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the contract if not included in subparagraph (h)(1) of this clause.

            (3)            The reasonable costs of settlement of the work terminated, including--

 

                        (i)            Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and supporting data;

 

                        (ii)                        The termination and settlement of subcontracts (excluding the amounts of such settlements); and

 

                        (iii)            Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory.  If the termination is for default, no amounts for the preparation of the Contractor's termination settlement proposal may be included.

 

            (4)            A portion of the fee payable under the contract, determined as follows:

 

                        (i)            If the contract is terminated for the convenience of the Government, the settlement shall include a percentage of the fee equal to the percentage of completion of work contemplated under the contract, but excluding subcontract effort included in subcontractors' termination proposals, less previous payments for fee.

 

                        (ii)                        If the contract is terminated for default, the total fee payable shall be such proportionate part of the fee as the total number of articles (or amount of services) delivered to and accepted by the Government is to the total number of articles (or amount of services) of a like kind required by the contract.

 

            (5)            If the settlement includes only fee, it will be determined under subparagraph (h)(4) of this clause.

 

(i)         The cost principles and procedures in Part 31 of the Federal Acquisition Regulation, as supplemented in Subpart 970.31 of the Department of Energy Acquisition Regulation, in effect on the date of this contract, shall govern all costs claimed, agreed to, or determined under this clause.

 

(j)         The Contractor shall have the right of appeal, under the Disputes clause, from any determination made by the Contracting Officer under paragraph (f), (h), or (l) of this clause, except that if the Contractor failed to submit the termination settlement proposal within the time provided in paragraph (f) and failed to request a time extension, there is no right of appeal. If the Contracting Officer has made a determination of the amount due under paragraph (f), (h) or (l) of this clause, the Government shall pay the Contractor --

 

(1)            The amount determined by the Contracting Officer if there is no right of appeal or if no timely appeal has been taken; or

 

(2)            The amount finally determined on an appeal.

 

(k)        In arriving at the amount due the Contractor under this clause, there shall be deducted --

 

            (1)            All unliquidated advance or other payments to the Contractor, under the terminated portion of this contract;

 

            (2)             Any claim which the Government has against the Contractor under this contract; and

 

            (3)            The agreed price for, or the proceeds of sale of materials, supplies, or other things acquired by the Contractor or sold under this clause and not recovered by or credited to the Government.

 

(l)         The Contractor and Contracting Officer must agree to any equitable adjustment in fee for the continued portion of the contract when there is a partial termination. The Contracting Officer shall amend the contract to reflect the agreement.

 

(m)      (1)             The Government may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the Contractor for the terminated portion of the contract, if the Contracting Officer believes the total of these payments will not exceed the amount to which the Contractor will be entitled.

 

            (2)            If the total payments exceed the amount finally determined to be due, the Contractor shall repay the excess to the Government upon demand, together with interest computed at the rate established by the Secretary of the Treasury under 50 U.S.C. App. 1215(b)(2).  Interest shall be computed for the period from the date the excess payment is received by the Contractor to the date the excess is repaid.  Interest shall not be charged on any excess payment due to a reduction in the Contractor's termination settlement proposal because of retention or other disposition of termination inventory until 10 days after the date of the retention or disposition, or a later date determined by the Contracting Officer because of the circumstances.

 

(n)        The provisions of this clause relating to fee are inapplicable if this contract does not include a fee.

 

 

 

 

CLAUSE I.56 - FAR 52.249-14  EXCUSABLE DELAYS (APR 1984)

 

(a)       Except for defaults of subcontractors at any tier, the Contractor shall not be in default because of any failure to perform this contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor.  Examples of these causes are (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather.  In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Contractor.  “Default” includes failure to make progress in the work so as to endanger performance.

 

(b)       If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be deemed to be in default, unless --

 

(1)            The subcontracted supplies or services were obtainable from other sources;

 

            (2)            The Contracting Officer ordered the Contractor in writing to purchase these supplies or services from the other source; and

 

            (3)            The Contractor failed to comply reasonably with this order.

 

(c)        Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of the failure.  If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of the Government under the termination clause of this contract.

 

 

CLAUSE I.57 - FAR 52.251-1  GOVERNMENT SUPPLY SOURCES (APR 1984) (DEVIATION)

 

The Contracting Officer may issue the Contractor an authorization to use Government supply sources in the performance of this contract.  Title to all property acquired by the Contractor under such an authorization shall vest in the Government unless otherwise specified in the contract.  Such property shall not be considered to be "Government-furnished property", as distinguished from "Government property".  The provisions of the clause entitled “Property”, shall apply to all property acquired under such authorization.

 

 

 

CLAUSE I.58 - FAR 52.251-2  INTERAGENCY FLEET MANAGEMENT SYSTEM VEHICLES AND RELATED SERVICES (JAN 1991)

 

The Contracting Officer may issue the Contractor an authorization to obtain interagency fleet management system (IFMS) vehicles and related services for use in the performance of this contract.  The use, service, and maintenance of interagency fleet management system vehicles and the use of related services by the Contractor shall be in accordance with 41 CFR 101-39 and 41 CFR 101-38.301-1.

 

 

CLAUSE I.59 - FAR 52.252-6  AUTHORIZED DEVIATIONS IN CLAUSES (APR 1984)

 

(a)       The use in this solicitation or contract of any Federal Acquisition Regulation (48 CFR Chapter 1) clause with an authorized deviation is indicated by the addition of "(DEVIATION)" after the date of the clause.

 

(b)       The use in this solicitation or contract of any Department of Energy Acquisition Regulation (48 CFR Chapter 9) clause with an authorized deviation is indicated by the addition of "(DEVIATION)" after the name of the regulation.

 

 

CLAUSE I.60 - FAR 52.253-1  COMPUTER GENERATED FORMS (JAN 1991)

 

(a)       Any data required to be submitted on a Standard or Optional Form prescribed by the Federal Acquisition Regulation (FAR) may be submitted on a computer generated version of the form, provided there is no change to the name, content, or sequence of the data elements on the form, and provided the form carries the Standard or Optional Form number and edition date.

 

(b)       Unless prohibited by agency regulations, any data required to be submitted on an agency unique form prescribed by an agency supplement to the FAR may be submitted on a computer generated version of the form provided there is no change to the name, content, or sequence of the data elements on the form and provided the form carries the agency form number and edition date.

 

(c)        If the Contractor submits a computer generated version of a form that is different than the required form, then the rights and obligations of the Parties will be determined based on the content of the required form.

 

 

CLAUSE I.61 - DEAR 952.203-70  Whistleblower protection for contractor employees (DEC 2000)

 

(a)               The contractor shall comply with the requirements of “DOE Contractor Employee Protection Program” at 10 CFR part 708 for work performed on behalf of DOE directly related to activities at DOE-owned or -leased sites.

(b)               The contractor shall insert or have inserted the substance of this clause, including this paragraph (b), in subcontracts at all tiers, for subcontracts involving work performed on behalf of DOE directly related to activities at DOE-owned or -leased sites.

 

 

CLAUSE I.62 - DEAR 952.204-71  SENSITIVE FOREIGN NATIONS CONTROLS (APR 1994)

 

(a)               In connection with any activities in the performance of this Contract, the Contractor agrees to comply with the “Sensitive Foreign Nations Controls” requirements attached to this Contract, relating to those countries, which may from time to time, be identified to the Contractor by written notice as sensitive foreign nations.  The Contractor shall have the right to terminate its performance under this Contract upon at least 60 days' prior written notice to the Contracting Officer if the Contractor determines that it is unable, without substantially interfering with its policies or without adversely impacting its performance to continue performance of the work under this Contract as a result of such notification.  If the Contractor elects to terminate performance, the provisions of this Contract regarding termination for the convenience of the Government shall apply.

 

(b)       The provisions of this clause shall be included in any subcontracts.

 

 

CLAUSE I.63 - DEAR 952.204-72  DISCLOSURE OF INFORMATION (APR 1994)

 

(a)               It is mutually expected that the activities under this Contract will not involve classified information.  It is understood, however, that if in the opinion of either party, this expectation changes prior to the expiration or terminating of all activities under this Contract, said party shall notify the other party accordingly in writing without delay.  In any event, the Contractor shall classify, safeguard, and otherwise act with respect to all classified information in accordance with applicable law and the requirements of DOE, and shall promptly inform DOE in writing if and when classified information becomes involved, or in the mutual judgment of the parties it appears likely that classified information or material may become involved.  The Contractor shall have the right to terminate performance of the work under this Contract and in such event the provisions of this Contract respecting termination for the convenience of the Government shall apply.

 

(b)       The Contractor shall not permit any individual to have access to classified information except in accordance with the Atomic Energy Act of 1954, as amended, Executive Order 12356, and DOE’s regulations or requirements.

 

(c)        The term “Restricted Data” as used in this clause means all data concerning the design, manufacture, or utilization of atomic weapons, the production of special nuclear material or 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 of the Atomic Energy Act of 1954, as amended.

 

 

CLAUSE I.64 - DEAR 952.204-75  Public affairs (DEC 2000)

 

(a)               The Contractor must cooperate with the Department in releasing unclassified information to the public and news media regarding DOE policies, programs, and activities relating to its effort under the contract.  The responsibilities under this clause must be accomplished through coordination with the Contracting Officer and appropriate DOE public affairs personnel in accordance with procedures defined by the Contracting Officer.

 

(b)               The Contractor is responsible for the development, planning, and coordination of proactive approaches for the timely dissemination of unclassified information regarding DOE activities onsite and offsite, including, but not limited to, operations and programs.  Proactive public affairs programs may utilize a variety of communication media, including public workshops, meetings or hearings, open houses, newsletters, press releases, conferences, audio/visual presentations, speeches, forums, tours, and other appropriate stakeholder interactions.

 

(c)        The Contractor’s internal procedures must ensure that all releases of information to the public and news media are coordinated through, and approved by, a management official at an appropriate level within the Contractor's organization.

 

(d)       The Contractor must comply with established DOE procedures for obtaining advance clearances on oral, written, and audio/visual informational material prepared for public dissemination or use.

 

(e)       Unless prohibited by law, and in accordance with procedures defined by the Contracting Officer, the Contractor must notify the Contracting Officer and appropriate DOE public affairs personnel of communications or contacts with Members of Congress relating to the effort performed under the contract.

 

(f)         In accordance with procedures defined by the Contracting Officer, the Contractor must notify the Contracting Officer and appropriate DOE public affairs personnel of activities or situations that may attract regional or national news media attention and of non-routine inquiries from national news media relating to the effort performed under the contract.

   

(g)       In releases of information to the public and news media, the Contractor must fully and accurately identify the Contractor's relationship to the Department and fully and accurately credit the Department for its role in funding programs and projects resulting in scientific, technical, and other achievements.

 

CLAUSE I.65 - DEAR 952.208-7  TAGGING OF LEASED VEHICLES (APR 1984)

 

(a)       DOE intends to use U.S. Government license tags.

 

(b)       While it is the intention that vehicles leased hereunder shall operate on Federal tags, the DOE reserves the right to utilize State tags, if necessary, to accomplish its mission.  Should State tags be required, the Contractor shall furnish the DOE the documentation required by the State to acquire such tags.

 

 

CLAUSE I.66 - DEAR 952.209-72  ORGANIZATIONAL CONFLICTS OF INTEREST (JUN 1997) (ALTERNATE I) (JUN 1997)

 

(a)            Purpose.  The purpose of this clause is to ensure that the Contractor (1) is not biased because of its financial, contractual, organizational, or other interests which relate to the work under this contract, and (2) does not obtain any unfair competitive advantage over other parties by virtue of its performance of this contract.

 

(b)            Scope.  The restrictions described herein shall apply to performance or participation by the Contractor and any of its affiliates or their successors in interest (hereinafter collectively referred to as “Contractor”) in the activities covered by this clause as a prime contractor, subcontractor, cosponsor, joint venturer, consultant, or in any similar capacity.  For the purpose of this clause, affiliation occurs when a business concern is controlled by or has the power to control another or when a third party has the power to control both.

 

(1)            Use of Contractor’s Work Product.

 

(i)            The Contractor shall be ineligible to participate in any capacity in Department contracts, subcontracts, or proposals therefor (solicited and unsolicited) which stem directly from the Contractor’s performance of work under this contract for a period of five years after the completion of this contract.  Furthermore, unless so directed in writing by the Contracting Officer, the Contractor shall not perform any advisory and assistance services work under this contract on any of its products or services or the products or services of another firm if the Contractor is or has been substantially involved in their development or marketing.  Nothing in this subparagraph shall preclude the Contractor from competing for follow-on contracts for advisory and assistance services.

 

(ii)            If, under this contract, the Contractor prepares a complete or essentially complete statement of work or specifications to be used in competitive acquisitions, the Contractor shall be ineligible to perform or participate in any capacity in any contractual effort which is based on such statement of work or specifications.  The Contractor shall not incorporate its products or services in such statement of work or specifications unless so directed in writing by the Contracting Officer, in which case the restriction in this subparagraph shall not apply.

 

(iii)            Nothing in this paragraph shall preclude the Contractor from offering or selling its standard and commercial items to the Government.

 

(2)            Access to and use of information.

 

(i)            If the Contractor, in the performance of this contract, obtains access to information, such as Department plans, policies, reports, studies, financial plans, internal data protected by the Privacy Act of 1974 (5 U.S.C. 552a), or data which has not been released or otherwise made available to the public, the Contractor agrees that without prior written approval of the Contracting Officer it shall not:

 

(A)            use such information for any private purpose unless the information has been released or otherwise made available to the public;

 

(B)            compete for work for the Department based on such information for a period of six (6) months after either the completion of this contract or until such information is released or otherwise made available to the public, whichever is first;

 

(C)            submit an unsolicited proposal to the Government which is based on such information until one year after such information is released or otherwise made available to the public; and

 

(D)            release such information unless such information has previously been released or otherwise made available to the public by the Department.

 

                        (ii)           In addition, the Contractor agrees that to the extent it receives or is given access to proprietary data, data protected by the Privacy Act of 1974 (5 U.S.C. 552a), or other confidential or privileged technical, business, or financial information under this contract, it shall treat such information in accordance with any restrictions imposed on such information.

 

(iii)            The Contractor may use technical data it first produces under this contract for its private purposes consistent with paragraphs (b)(2)(i)(A) and (D) of this clause and the patent, rights in data, and security provisions of this contract.

 

(c)            Disclosure after award.

 

(1)       The Contractor agrees that, if changes, including additions, to the facts disclosed by it prior to award of this contract, occur during the performance of this contract, it shall make an immediate and full disclosure of such changes in writing to the Contracting Officer.  Such disclosure may include a description of any action which the Contractor has taken or proposes to take to avoid, neutralize, or mitigate any resulting conflict of interest.  The Department may, however, terminate the contract for convenience if it deems such termination to be in the best interest of the Government.

 

(2)       In the event that the Contractor was aware of facts required to be disclosed or the existence of an actual or potential organizational conflict of interest and did not disclose such facts or such conflict of interest to the Contracting Officer, DOE may terminate this contract for default.

 

(d)            Remedies.  For breach of any of the above restrictions or for nondisclosure or misrepresentation of any facts required to be disclosed concerning this contract, including the existence of an actual or potential organizational conflict of interest at the time of or after award, the Government may terminate the contract for default, disqualify the Contractor from subsequent related contractual efforts, and pursue such other remedies as may be permitted by law or this contract.

 

(e)            Waiver.  Requests for waiver under this clause shall be directed in writing to the Contracting Officer and shall include a full description of the requested waiver and the reasons in support thereof.  If it is determined to be in the best interests of the Government, the Contracting Officer may grant such a waiver in writing.

 

(f)            Subcontracts.

 

(1)       The Contractor shall include a clause, substantially similar to this clause, including this paragraph (f), in subcontracts expected to exceed the simplified acquisition threshold determined in accordance with FAR Part 13 and involving the performance of advisory and assistance services as that term is defined at FAR 37.201.  The terms “contract,” “Contractor,” and “Contracting Officer” shall be appropriately modified to preserve the Government’s rights.

 

(2)       Prior to the award under this contract of any subcontracts for advisory and assistance services, the Contractor shall obtain from the proposed subcontractor or consultant the disclosure required by DEAR 909.507-1, and shall determine in writing whether the interests disclosed present an actual or significant potential for an organizational conflict of interest.  Where an actual or significant potential organizational conflict of interest is identified, the Contractor shall take actions to avoid, neutralize, or mitigate the organizational conflict to the satisfaction of the Contractor.  If the conflict cannot be avoided or neutralized, the Contractor must obtain the approval of the DOE Contracting Officer prior to entering into the subcontract.

 

 

CLAUSE I.67 - DEAR 952.211-71  PRIORITIES AND ALLOCATIONS (DOMESTIC ENERGY SUPPLIES) (ALTERNATE I) (JUN 1996)

 

(a)       This contract may be eligible for priorities and allocations support, as provided for by section 101(c) of the Defense Production Act of 1950, as amended by the Energy Policy and Conservation Act (Pub. L. 94-163, 42 U.S.C. 6201 et seq.) if its purpose is determined to be to maximize domestic energy supplies.  Eligibility is dependent on an executive decision on a case-by-case basis with the decision being jointly made by the Departments of Energy and Commerce.

 

(b)       DOE regulations regarding material allocations and priority performance under contracts or orders to maximize domestic energy supplies can be found at Part 216 of Title 10 of the Code of Federal Regulations (10 CFR Part 216).

 

(c)               Additional guidance is provided by DOE Publication MA-0192, "Priorities and Allocations Support for Energy: Keeping Energy Programs on Schedule," dated August 1985, as it may from time to time be revised.  Copies may be obtained by written request to:  Department of Energy, Office of Scientific and Technical Information (OSTI), Post Office Box 62, Oak Ridge, Tennessee 37830.

 

 

CLAUSE I.68 - DEAR 952.211-71  PRIORITIES AND ALLOCATIONS (ATOMIC ENERGY) (JUN 1996)

 

The Contractor shall follow the provisions of Defense Priorities and Allocations System (DPAS) regulation (15 CFR Part 700) in obtaining controlled materials and other products and materials needed to fill this contract.

 

 

CLAUSE I.69 - DEAR 952.215-70  KEY PERSONNEL (DEC 2000)

 

(a)       The personnel listed below or elsewhere in this contract are considered essential to the work being performed under this contract.  Before removing, replacing, or diverting any of the listed or specified personnel, the Contractor must:

 

(1)              Notify the Contracting Officer reasonably in advance;

 

(2)              submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on this contract; and

 

(3)              obtain the Contracting Officer's written approval. 

 

Notwithstanding the foregoing, if the Contractor deems immediate removal or suspension of any member of its management team is necessary to fulfill its obligation to maintain satisfactory standards of employee competency, conduct, and integrity under the clause at 48 CFR 970.5203-3, Contractor's Organization, the Contractor may remove or suspend such person at once, although the Contractor must notify Contracting Officer prior to or concurrent with such action.

 

(b)       The list of personnel may, with the consent of the contracting parties, be amended from time to time during the course of the contract to add or delete personnel.

 

Dr. Michael S. Witherell, Director

Dr. Kenneth Stanfield, Deputy Director

 

 

CLAUSE I.70 - DEAR 952.217-70  ACQUISITION OF REAL PROPERTY (APR 1984)

 

(a)            Notwithstanding any other provision of the contract, the prior approval of the Contracting Officer shall be obtained when, in performance of this contract, the Contractor acquires or proposes to acquire use of real property by:

 

            (1)          Purchase, on the Government's behalf or in the Contractor's own name, with title eventually vesting in the Government.

 

            (2)          Lease, and the Government assumes liability for, or will otherwise pay for the obligation under the lease as a reimbursable contract cost.

 

            (3)          Acquisition of temporary interest through easement, license or permit, and the Government funds the entire cost of the temporary interest.

 

(b)            Justification of an execution of any real property acquisitions shall be in accordance and compliance with directions provided by the Contracting Officer.

 

(c)        The substance of this Clause, including this paragraph (c), shall be included in any subcontract occasioned by this contract under which property described in paragraph (a) of this Clause shall be acquired.

 

 

 

 

 

CLAUSE I.71 - DEAR 952.223-75  PRESERVATION OF INDIVIDUAL OCCUPATIONAL RADIATION EXPOSURE RECORDS (APR 1984)

 

Individual occupational radiation exposure records generated in the performance of work under this contract shall be subject to inspection by DOE and shall be preserved by the Contractor until disposal is authorized by DOE or at the option of the Contractor delivered to DOE upon completion or termination of the contract.  If the Contractor exercises the foregoing option, title to such records shall vest in DOE upon delivery.

 

 

CLAUSE I.72 - DEAR 952.224-70  PAPERWORK REDUCTION ACT (APR 1994)

 

(a)       In the event that it subsequently becomes a contractual requirement to collect or record information calling either for answer to identical questions from ten (10) or more persons other than Federal employees, or information from Federal employees which is to be used for statistical compilations of general public interest, the Federal Reports Act will apply to this contract.  No plan, questionnaire, interview guide, or other similar device for collecting information (whether repetitive or single-time) may be used without first obtaining clearance from the Office of Management and Budget (OMB).

 

(b)       The Contractor shall request the required OMB clearance from the Contracting Officer before expending any funds or making public contacts for the collection of data.  The authority to expend funds and to proceed with the collection of data shall be, in writing, by the Contracting Officer.  The Contractor must plan at least ninety (90) days for OMB clearance.  Excessive delay caused by the Government which arises out of causes beyond the control and without the fault or negligence of the Contractor will be considered in accordance with the clause entitled "Excusable Delays", if such clause is applicable.  If not, the period of performance may be extended pursuant to this Clause if approved by the Contracting Officer.”

 

 

CLAUSE I.73 - DEAR 952.226-74  DISPLACED EMPLOYEE HIRING PREFERENCE (JUN 1997)

 

(a)          Definition.

 

Eligible employee means a current or former employee of a Contractor or subcontractor employed at a Department of Energy Defense Nuclear Facility (1) whose position of employment has been, or will be, involuntarily terminated (except if terminated for cause), (2) who has also met the eligibility criteria contained in the Department of Energy guidance for Contractor work force restructuring, as may be amended or supplemented from time to time, and (3) who is qualified for a particular job vacancy with the Department or one of its Contractors with respect to work under its contract with the Department at the time the particular position is available.

(b)            Consistent with Department of Energy guidance for Contractor work force restructuring, as may be amended or supplemented from time to time, the Contractor agrees that it will provide a preference in hiring to an eligible employee to the extent practicable for work performed under this contract.

 

(c)        The requirements of this clause shall be included in subcontracts at any tier (except for subcontracts for commercial items pursuant to 41 U.S.C. 403) expected to exceed $500,000.

 

 

CLAUSE I.74 - DEAR 952.250-70  NUCLEAR HAZARDS INDEMNITY AGREEMENT (JUN 1996)

 

(a)            Authority.  This clause is incorporated into this contract pursuant to the authority contained in subsection 170d. of the Atomic Energy Act of 1954, as amended (hereinafter called the Act.)

 

(b)            Definitions.  The definitions set out in the Act shall apply to this clause.

 

(c)            Financial protection.  Except as hereafter permitted or required in writing by DOE, the contractor will not be required to provide or maintain, and will not provide or maintain at Government expense, any form of financial protection to cover public liability, as described in paragraph (d)(2) below.  DOE may, however, at any time require in writing that the contractor provide and maintain financial protection of such a type and in such amount as DOE shall determine to be appropriate to cover such public liability, provided that the costs of such financial protection are reimbursed to the contractor by DOE.

 

(d)       (1)       Indemnification.  To the extent that the contractor and other persons indemnified are not compensated by any financial protection permitted or required by DOE, DOE will indemnify the contractor and other persons indemnified against (i) claims for public liability as described in subparagraph (d)(2) of this clause; and (ii) such legal costs of the contractor and other persons indemnified as are approved by DOE, provided that DOE's liability, including such legal costs, shall not exceed the amount set forth in section 170e.(1)(B) of the Act in the aggregate for each nuclear incident or precautionary evacuation occurring within the United States or $100 million in the aggregate for each nuclear incident

occurring outside the United States, irrespective of the number of persons indemnified in connection with this contract.

 

(2)       The public liability referred to in subparagraph (d)(1) of this clause is public liability as defined in the Act which (i) arises out of or in connection with the activities under this contract, including transportation; and (ii) arises out of or results from a nuclear incident or precautionary evacuation, as those terms are defined in the Act.

(e)       (1)       Waiver of Defenses.  In the event of a nuclear incident, as defined in the Act, arising out of nuclear waste activities, as defined in the Act, the contractor, on behalf of itself and other persons indemnified, agrees to waive any issue or defense as to charitable or governmental immunity.

 

            (2)       In the event of an extraordinary nuclear occurrence which:

 

(i)            Arises out of, results from, or occurs in the course of the construction, possession, or operation of a production or utilization facility; or

 

(ii)            Arises out of, results from, or occurs in the course of transportation of source material, by-product material, or special nuclear material to or from a production or utilization facility; or

 

(iii)            Arises out of or results from the possession, operation, or use by the contractor or a subcontractor of a device utilizing special nuclear material or by-product material, during the course of the contract activity; or

 

(iv)            Arises out of, results from, or occurs in the course of nuclear waste activities, the contractor, on behalf of itself and other persons indemnified, agrees to waive:

 

(A)            Any issue or defense as to the conduct of the claimant (including the conduct of persons through whom the claimant derives its cause of action) or fault of persons indemnified, including, but not limited to:

 

1.           Negligence;

 

2.           Contributory negligence;

 

3.                  Assumption of risk; or

 

4.            Unforeseeable intervening causes, whether involving the conduct of a third person or an act of God;

 

(B)            Any issue or defense as to charitable or governmental immunity; and

 

(C)            Any issue or defense based on any statute of limitations, if suit is instituted within 3 years from the date on which the claimant first knew, or reasonably could have known, of his injury or change and the cause thereof.  The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action. The waiver shall be judicially enforceable in accordance with its terms by the claimant against the person indemnified.

 

(v)            The term extraordinary nuclear occurrence means an event which DOE has determined to be an extraordinary nuclear occurrence as defined in the Act.  A determination of whether or not there has been an extraordinary nuclear occurrence will be made in accordance with the procedures in 10 CFR part 840.

 

(vi)            For the purposes of that determination, "offsite" as that term is used in 10 CFR part 840 means away from "the contract location" which phrase means any DOE facility, installation, or site at which contractual activity under this contract is being carried on, and any contractor-owned or controlled facility, installation, or site at which the contractor is engaged in the performance of contractual activity under this contract.

 

            (3)         The waivers set forth above:

 

(i)            Shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action;

 

(ii)            Shall be judicially enforceable in accordance with its terms by the claimant against the person indemnified;

 

(iii)            Shall not preclude a defense based upon a failure to take reasonable steps to mitigate damages;

 

(iv)            Shall not apply to injury or damage to a claimant or to a claimant's property which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant;

 

(v)            Shall not apply to injury to a claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place, if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law;

 

(vi)            Shall not apply to any claim resulting from a nuclear incident occurring outside the United States;

 

(vii)            Shall be effective only with respect to those obligations set forth in this clause and in insurance policies, contracts or other proof of financial protection; and

 

(viii)            Shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim which is not within the protection afforded under (A) the limit of liability provisions under subsection 170e. of the Act, and (B) the terms of this agreement and the terms of insurance policies, contracts, or other proof of financial protection.

 

(f)            Notification and litigation of claims.  The contractor shall give immediate written notice to DOE of any known action or claim filed or made against the contractor or other person indemnified for public liability as defined in paragraph (d)(2).  Except as otherwise directed by DOE, the contractor shall furnish promptly to DOE, copies of all pertinent papers received by the contractor or filed with respect to such actions or claims.  DOE shall have the right to, and may collaborate with, the contractor and any other person indemnified in the settlement or defense of any action or claim and shall have the right to (1) require the prior approval of DOE for the payment of any claim that DOE may be required to indemnify hereunder; and (2) appear through the Attorney General on behalf of the contractor or other person indemnified in any action brought upon any claim that DOE may be required to indemnify hereunder, take charge of such action, and settle or defend any such action.  If the settlement or defense of any such action or claim is undertaken by DOE, the contractor or other person indemnified shall furnish all reasonable assistance in effecting a settlement or asserting a defense.

 

(g)            Continuity of DOE obligations.  The obligations of DOE under this clause shall not be affected by any failure on the part of the contractor to fulfill its obligation under this contract and shall be unaffected by the death, disability, or termination of existence of the contractor, or by the completion, termination or expiration of this contract.

 

(h)        Effect of other clauses.  The provisions of this clause shall not be limited in any way by, and shall be interpreted without reference to, any other clause of this contract, including the clause entitled Contract Disputes, provided, however, that this clause shall be subject to the clauses entitled Covenant Against Contingent Fees, and Accounts, Records, and Inspection, and any provisions that are later added to this contract as required by applicable Federal law, including statutes, executive orders and regulations, to be included in Nuclear Hazards Indemnity Agreements.

 

(i)            Reserved.

 

(j)            Criminal penalties.  Any individual director, officer, or employee of the contractor or of its subcontractors and suppliers who are indemnified under the provisions of this clause are subject to criminal penalties, pursuant to 223(c) of the Act, for knowing and willful violation of the Atomic Energy Act of 1954, as amended, and applicable DOE nuclear safety-related rules, regulations or orders which violation results in, or, if undetected, would have resulted in a nuclear incident.

 

(k)            Inclusion in subcontracts.  The contractor shall insert this clause in any subcontract which may involve the risk of public liability, as that term is defined in the Act and further described in paragraph (d)(2) above.  However, this clause shall not be included in subcontracts in which the subcontractor is subject to Nuclear Regulatory Commission (NRC) financial protection requirements under section 170b. of the Act or NRC agreements of indemnification under section 170c. or k. of the Act for the activities under the subcontract.

 

(l)         This indemnity agreement shall be applicable with respect to nuclear incidents occurring on or after August 20, 1988.

 

 

CLAUSE I.75 - DEAR 952.251-70  CONTRACTOR EMPLOYEE TRAVEL DISCOUNTS (DEC 2000)

 

(a)       The contractor shall take advantage of travel discounts offered to Federal contractor employee travelers by AMTRAK, hotels, motels, or car rental companies, when use of such discounts would result in lower overall trip costs and the discounted services are reasonably available.  Vendors providing these services may require the contractor employee to furnish them a letter of identification signed by the authorized contracting officer.

 

(b)             Contracted airlines.  Contractors are not eligible for GSA contract city pair fares.

 

(c)            Discount rail service.  AMTRAK voluntarily offers discounts to Federal travelers on official business and sometimes extends those discounts to Federal contractor employees.

 

(d)             Hotels/motels.  Many lodging providers extend their discount rates for Federal employees to Federal contractor employees.

 

(e)       Car rentals.  The Military Traffic Management Command (MTMC) of the Department of Defense negotiates rate agreements with car rental companies that are available to Federal travelers on official business.  Some car rental companies extend those discounts to Federal contractor employees.

 

(f)            Obtaining travel discounts.

 

(1)             To determine which vendors offer discounts to Government contractors, the contractor may review commercial publications such as the Official Airline guides Official Traveler, Innovata, or National Telecommunications.  The contractor may also obtain this information from GSA contract Travel Management Centers or the Department of Defense's Commercial Travel Offices.

 

      (2)             The vendor providing the service may require the Government contractor to furnish a letter signed by the contracting officer.  The following illustrates a standard letter of identification.

 

                                             OFFICIAL AGENCY LETTERHEAD

 

TO:  Participating Vendor

 

SUBJECT:  OFFICIAL TRAVEL OF GOVERNMENT CONTRACTOR

 

(FULL NAME OF TRAVELER), the bearer of this letter is an employee of (COMPANY NAME) which has a contract with this agency under Government contract (CONTRACT NUMBER).  During the period of the contract (GIVE DATES), AND WITH THE APPROVAL OF THE CONTRACT VENDOR, the employee is eligible and authorized to use available travel discount rates in accordance with Government contracts and/or agreements.  Government Contract City Pair fares are not available to Contractors.

 

SIGNATURE, Title and telephone number of Contracting Officer

 

 

CLAUSE I.76 - DEAR 970.5203-1  MANAGEMENT CONTROLS (DEC 2000)

 

(a)       (1)       The contractor shall be responsible for maintaining, as an integral part of its organization, effective systems of management controls for both administrative and programmatic functions.  Management controls comprise the plan of organization, methods and procedures adopted by management to reasonably ensure that:  the mission and functions assigned to the contractor are properly executed; efficient and effective operations are promoted; resources are safeguarded against waste, loss, mismanagement, unauthorized use, or misappropriation; all encumbrances and costs that are incurred under the contract and fees that are earned are in compliance with applicable clauses and other current terms, conditions, and intended purposes; all collections accruing to the contractor in connection with the work under this contract, expenditures, and all other transactions and assets are properly recorded, managed, and reported; and financial, statistical, and other reports necessary to maintain accountability and managerial control are accurate, reliable, and timely.

 

(2)       The systems of controls employed by the contractor shall be documented and satisfactory to DOE.

 

(3)       Such systems shall be an integral part of the contractor's management functions, including defining specific roles and responsibilities for each level of management, and holding employees accountable for the adequacy of the management systems and controls in their areas of assigned responsibility.

 

(4)       The contractor shall, as part of the internal audit program required elsewhere in this contract, periodically review the management systems and controls employed in programs and administrative areas to ensure that they are adequate to provide reasonable assurance that the objectives of the system are being accomplished and that these systems and controls are working effectively.

 

(b)       The contractor shall be responsible for maintaining, as a part of its operational responsibilities, a baseline quality assurance program that implements documented performance, quality standards, and control and assessment techniques.

 

 

CLAUSE I.77 - DEAR 970.5203-2  PERFORMANCE IMPROVEMENT AND COLLABORATION (DEC 2000)

 

(a)       The contractor agrees that it shall affirmatively identify, evaluate, and institute practices, where appropriate, that will improve performance in the areas of environmental and health, safety, scientific and technical, security, business and administrative, and any other areas of performance in the management and operation of the contract.  This may entail the alteration of existing practices or the institution of new procedures to more effectively or efficiently perform any aspect of contract performance or reduce overall cost of operation under the contract.  Such improvements may result from changes in organization, simplification of systems while retaining necessary controls, or any other approaches consistent with the statement of work and performance measures of this contract.

 

(b)       The contractor agrees to work collaboratively with the Department, all other management and operating, DOE major facilities management contractors and affiliated contractors which manage or operate DOE sites or facilities for the following purposes:  (i) to exchange information generally, (ii) to evaluate concepts that may be of benefit in resolving common issues, in confronting common problems, or in reducing costs of operations, and (iii) to otherwise identify and implement DOE-complex-wide management improvements discussed in paragraph (a).  In doing so, it shall also affirmatively provide information relating to its management improvements to such contractors, including lessons learned, subject to security considerations and the protection of data proprietary to third parties.

 

(c)        The contractor may consult with the contracting officer in those instances in which improvements being considered pursuant to paragraph (a) involve the cooperation of the DOE.  The contractor may request the assistance of the contracting officer in the communication of the success of improvements to other management and operating contractors in accordance with paragraph (b) of this clause.

 

(d)       The contractor shall notify the contracting officer and seek approval where necessary to fulfill its obligations under the contract.  Compliance with this clause in no way alters the obligations of the Contractor under any other provision of this contract. 

 

 

CLAUSE I.78 - DEAR 970.5203-3  Contractor's organization (DEC 2000) 

(DEVIATION)

 

(a)            Organization chart.  As promptly as possible after the execution of this contract, the contractor shall furnish to the contracting officer a chart showing the names, duties, and organization of key personnel (see 48 CFR 952.215-70) and managerial personnel (see 48 CFR 970.5245-1 (j)) to be employed in connection with the work, and shall furnish supplemental information to reflect any changes as they occur.

 

(b)            Supervisory representative of contractor.  Unless otherwise directed by the contracting officer, a competent full-time resident supervisory representative of the contractor satisfactory to the contracting officer shall be in charge of the work at the site, and any work off-site, at all times.

 

(c)            Control of employees.  The contractor shall be responsible for maintaining satisfactory standards of employee competency, conduct, and integrity and shall be responsible for taking such disciplinary action with respect to its employees as may be necessary.

 

(d)            Standards and procedures.  The contractor shall establish such standards and

procedures as are necessary to implement the requirements set forth in 48 CFR 970.0371.  Such standards and procedures shall be subject to the approval of the contracting officer.

 

 

CLAUSE I.79 - DEAR 970.5204-2  LAWS, REGULATIONS AND DOE DIRECTIVES (DEC 2000) (DEVIATION)

 

(a)       In performing work under this contract, the contractor shall comply with the requirements of applicable Federal, State, and local laws and regulations (including DOE regulations), unless relief has been granted in writing by the appropriate regulatory agency.  A List of Applicable Laws and Regulations (Appendix I/List A) may be appended to this contract for information purposes.  Omission of any applicable law or regulation from Appendix I/List A does not affect the obligation of the contractor to comply with such law or regulation pursuant to this paragraph.

 

(b)       In performing work under this contract, the contractor shall comply with the requirements of those Department of Energy directives, or parts thereof, identified in the List of Applicable Directives (Appendix I/List B) appended to this contract.  Except as otherwise provided for in paragraph (c) of this clause, the contracting officer may, from time to time and at any time, revise Appendix I/List B by unilateral modification to the contract to add, modify, or delete specific requirements.  Prior to revising Appendix I/List B, the contracting officer shall notify the contractor in writing of the Department's intent to revise Appendix I/ListB and provide the contractor with the opportunity to assess the effect of the contractor's compliance with the revised list on contract cost and funding, technical performance, and schedule; and identify any potential inconsistencies between the revised list and the other terms and conditions of the contract.  Within 30 days after receipt of the contracting officer's notice, the contractor shall advise the contracting officer in writing of the potential impact of the contractor's compliance with the revised list.  Based on the information provided by the contractor and any other information available, the contracting officer shall decide whether to revise Appendix I/List B and so advise the contractor not later than 30 days prior to the effective date of the revision of Appendix I/List B.  The contractor and the contracting officer shall identify and, if appropriate, agree to any changes to other contract terms and conditions, including cost and schedule, associated with the revision of Appendix I/List B pursuant to the clause of this contract entitled, “Changes.”

 

(c)            Environmental, safety, and health (ES&H) requirements appropriate for work conducted under this contract have been determined by a DOE approved process to evaluate the work and the associated hazards and identify an appropriately tailored set of standards, practices, and controls.  The set of tailored (ES&H) requirements, as approved by DOE pursuant to the process, have been incorporated into Appendix I/List B as contract requirements with full force and effect.  These requirements shall supersede, in whole or in part, the contractual environmental, safety, and health requirements previously made applicable to the contract by Appendix I/List B.  If the tailored set of requirements identifies an alternative requirement varying from an ES&H requirement of an applicable law or regulation, the contractor shall request an exemption or other appropriate regulatory relief specified in the regulation.

 

(d)       Except as otherwise directed by the contracting officer, the contractor shall procure all necessary permits or licenses required for the performance of work under this contract.

 

(e)            Regardless of the performer of the work, the contractor is responsible for compliance with the requirements of this clause.  The contractor is responsible for flowing down the requirements of this clause to subcontracts at any tier to the extent necessary to ensure the contractor's compliance with the requirements.

 

 

CLAUSE I.80 - DEAR 970.5204-3  ACCESS TO AND OWNERSHIP OF RECORDS (DEC 2000)

 

(a)            Government-owned records.  Except as provided in paragraph (b) of this clause, all records acquired or generated by the contractor in its performance of this contract shall be the property of the Government and shall be delivered to the Government or otherwise disposed of by the contractor either as the contracting officer may from time to time direct during the progress of the work or, in any event, as the contracting officer shall direct upon completion or termination of the contract.

 

(b)               Contractor-owned records.  The following records are considered the property of the contractor and are not within the scope of paragraph (a) of this clause.

 

(1)       Employment-related records (such as workers' compensation files; employee relations records, records on salary and employee benefits; drug testing records, labor negotiation records; records on ethics, employee concerns, and other employee related investigations conducted under an expectation of confidentiality; employee assistance program records; and personnel and medical/health-related records and similar files), and non-employee patient medical/health related records, except for those records described by the contract as being maintained in Privacy Act systems of records.

 

(2)       Confidential contractor financial information, and correspondence between the contractor and other segments of the contractor located away from the DOE facility (i.e., the contractor's corporate headquarters);

 

(3)       Records relating to any procurement action by the contractor, except for records that under 48 CFR 970.5232-3, Accounts, Records, and Inspection, are described as the property of the Government; and

 

(4)       Legal records, including legal opinions, litigation files, and documents covered by the attorney-client and attorney work product privileges; and

 

(5)       The following categories of records maintained pursuant to the technology transfer clause of this contract:

 

(i)            Executed license agreements, including exhibits or appendices containing information on royalties, royalty rates, other financial information, or commercialization plans, and all related documents, notes and correspondence.

 

(ii)            The contractor's protected Cooperative Research and Development Agreement (CRADA) information and appendices to a CRADA that contain licensing terms and conditions, or royalty or royalty rate information.

 

(iii)            Patent, copyright, mask work, and trademark application files and related contractor invention disclosures, documents and correspondence, where the contractor has elected rights or has permission to assert rights and has not relinquished such rights or turned such rights over to the Government.

 

(c)            Contract completion or termination.  In the event of completion or termination of this contract, copies of any of the contractor-owned records identified in paragraph (b) of this clause, upon the request of the Government, shall be delivered to DOE or its designees, including successor contractors.  Upon delivery, title to such records shall vest in DOE or its designees, and such records shall be protected in accordance with applicable federal laws (including the Privacy Act), as appropriate.

 

(d)            Inspection, copying, and audit of records.  All records acquired or generated by the contractor under this contract in the possession of the contractor, including those described at paragraph (b) of this clause, shall be subject to inspection, copying, and audit by the Government or its designees at all reasonable times, and the contractor shall afford the Government or its designees reasonable facilities for such inspection, copying, and audit; provided, however, that upon request by the contracting officer, the contractor shall deliver such records to a location specified by the contracting officer for inspection, copying, and audit. The Government or its designees shall use such records in accordance with applicable federal laws (including the Privacy Act), as appropriate.

 

(e)            Applicability.  Paragraphs (b), (c), and (d) of this clause apply to all records without regard to the date or origination of such records.

 

(f)            Records retention standards.  Special records retention standards, described at DOE Order 200.1, Information Management Program (version in effect on effective date of contract), are applicable for the classes of records described therein, whether or not the records are owned by the Government or the contractor.  In addition, the contractor shall retain individual radiation exposure records generated in the performance of work under this contract until DOE authorizes disposal.  The Government may waive application of these record retention schedules, if, upon termination or completion of the contract, the Government exercises its right under paragraph (c) of this clause to obtain copies and delivery of records described in paragraphs (a) and (b) of this clause.

 

(g)            Subcontracts.  The contractor shall include the requirements of this clause in all subcontracts that are of a cost-reimbursement type if any of the following factors is present:

 

(1)       The value of the subcontract is greater than $2 million (unless specifically waived by the contracting officer);

 

(2)       The contracting officer determines that the subcontract is, or involves, a critical task related to the contract; or

 

(3)       The subcontract includes 48 CFR 970.5223-1, Integration of Environment, Safety, and Health into Work Planning and Execution, or similar clause.

 

 

 

 

CLAUSE I.81 - DEAR 970.5208-1  PRINTING (DEC 2000)

 

(a)       To the extent that duplicating or printing services may be required in the performance of this contract, the Contractor shall provide or secure such services in accordance with the Government Printing and Binding Regulations, Title 44 of the U.S. Code, and DOE Directives relative thereto.

   

(b)       The term “Printing” includes the following processes:  composition, platemaking, presswork, binding, microform publishing, or the end items produced by such processes.  Provided, however, that performance of a requirement under this contract involving the duplication of less than 5,000 copies of a single page, or no more than 25,000 units in the aggregate of multiple pages, will not be deemed to be printing.

   

(c)            Printing services not obtained in compliance with this guidance shall result in the cost of such printing being disallowed.

 

(d)       The Contractor shall include the substance of this clause in all subcontracts hereunder which require printing (as that term is defined in Title I of the U.S. Government Printing and Binding Regulations).

 

 

CLAUSE I.81A - DEAR 970.5215-1 TOTAL AVAILABLE FEE:  BASE FEE AMOUNT AND PERFORMANCE FEE AMOUNT (DEC 2000) (ALTERNATES II AND III) (DEC 2000)

 

(a)       Total available fee.  Total available fee, consisting of a base fee amount (which may be zero) and a performance fee amount (consisting of an incentive fee component for objective performance requirements, an award fee component for subjective performance requirements, or both) determined in accordance with the provisions of this clause, is available for payment in accordance with the clause of this contract entitled, "Payments and advances."

 

(b)       Fee Negotiations.  Prior to the beginning of each fiscal year under this contract, or other appropriate period as mutually agreed upon and, if exceeding one year, approved by the Senior Procurement Executive, or designee, the contracting officer and Contractor shall enter into negotiation of the requirements for the year or appropriate period, including the evaluation areas and individual requirements subject to incentives, the total available fee, and the allocation of fee.  The contracting officer shall modify this contract at the conclusion of each negotiation to reflect the negotiated requirements, evaluation areas and individual requirements subject to incentives, the total available fee, and the allocation of fee.  In the event the parties fail to agree on the requirements, the evaluation areas and individual requirements subject to incentives, the total available fee, or the allocation of fee, a unilateral determination will be made by the contracting officer.  The total available fee amount shall be allocated to a twelve month cycle composed of one or more evaluation periods, or such longer period as may be mutually agreed to between the parties and approved by the Senior Procurement Executive, or designee.

 

(c)               Determination of Total Available Fee Amount Earned.

 

            (1)            The Government shall, at the conclusion of each specified evaluation period, evaluate the contractor's performance of all requirements, including performance based incentives completed during the period, and determine the total available fee amount earned.  At the contracting officer's discretion, evaluation of incentivized performance may occur at the scheduled completion of specific incentivized requirements.

 

(2)            The DOE Operations/Field Office Manager, or designee, will be the Manager, Fermi Area Office.  The contractor agrees that the determination as to the total available fee earned is a unilateral determination made by the DOE Operations/Field Office Manager, or designee.

 

(3)            The evaluation of contractor performance shall be in accordance with the Performance Evaluation and Measurement Plan(s) described in subparagraph (d) of this clause unless otherwise set forth in the contract.  The Contractor shall be promptly advised in writing of the fee determination, and the basis of the fee determination.  In the event that the contractor's performance is considered to be less than the level of performance set forth in the Statement of Work, as amended to include the current Work Authorization Directive or similar document, for any contract requirement, it will be considered by the DOE Operations/Field Office Manager, or designee, who may at his/her discretion adjust the fee determination to reflect such performance.  Any such adjustment shall be in accordance with the clause entitled, "Conditional Payment of Fee, Profit, or Incentives" if contained in the contract.

 

           (4)            Award fee not earned during the evaluation period shall not be allocated to future evaluation periods.

 

(d)       Performance Evaluation and Measurement Plan(s).  To the extent not set forth elsewhere in the contract: 

 

      (1)            The Government shall establish a Performance Evaluation and Measurement Plan(s) upon which the determination of the total available fee amount earned shall be based.  The Performance Evaluation and Measurement Plan(s) will address all of the requirements of contract performance specified in the contract directly or by reference.  A copy of the Performance Evaluation and Measurement Plan(s) shall be provided to the Contractor:

 

                  (i)             prior to the start of an evaluation period if the requirements, evaluation areas, specific incentives, amount of fee, and allocation of fee to such evaluation areas and specific incentives have been mutually agreed to by the parties; or

 

                  (ii)            not later than thirty days prior to the scheduled start date of the evaluation period, if the requirements, evaluation areas, specific incentives, amount of fee, and allocation of fee to such evaluation areas and specific incentives have been unilaterally established by the contracting officer.

 

(2)            The Performance Evaluation and Measurement Plan(s) will set forth the criteria upon which the Contractor will be evaluated relating to any technical, schedule, management, and/or cost objectives selected for evaluation.  Such criteria should be objective, but may also include subjective criteria.  The Plan(s) shall also set forth the method by which the total available fee amount will be allocated and the amount earned determined.

 

(3)            The Performance Evaluation and Measurement Plan(s) may, consistent with the contract statement of work, be revised during the period of performance.  The contracting officer shall notify the contractor:

 

                  (i)             of such unilateral changes at least ninety calendar days prior to the end of the affected evaluation period and at least thirty calendar days prior to the effective date of the change; 

 

                  (ii)            of such bilateral changes at least sixty calendar days prior to the end of the affected evaluation period; or

 

                  (iii)            if such change, whether unilateral or bilateral, is urgent and high priority, at least thirty calendar days prior to the end of the evaluation period.

 

(e)            Schedule for total available fee amount earned determinations.  The DOE Operations/Field Office Manager, or designee, shall issue the final total available fee amount earned determination in accordance with:  the schedule set forth in the Performance Evaluation and Measurement Plan(s); or as otherwise set forth in this contract .  However, a determination must be made within sixty calendar days after the receipt by the contracting officer of the Contractor's self-assessment, if one is required or permitted by paragraph (f) of this clause, or seventy calendar days after the end of the evaluation period, whichever is later, or a longer period if the Contractor and contracting officer agree.  If the contracting officer evaluates the Contractor's performance of specific requirements on their completion, the payment of any earned fee amount must be made within seventy calendar days (or such other time period as mutually agreed to between the contracting officer and the Contractor) after such completion.  If the determination is delayed beyond that date, the Contractor shall be entitled to interest on the determined total available fee amount earned at the rate established by the Secretary of the Treasury under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) that is in effect on the payment date.  This rate is referred to as the "Renegotiation Board Interest Rate," and is published in the Federal Register semiannually on or about January 1 and July 1.  The interest on any late total available fee amount earned determination will accrue daily and be compounded in 30-day increments inclusive from the first day after the schedule determination date through the actual date the determination is issued.  That is, interest accrued at the end of any 30-day period will be added to the determined amount of fee earned and be subject to interest if not paid in the succeeding 30-day period.

 

(f)      Contractor self-assessment.  Following each evaluation period, the Contractor shall submit a self-assessment within 45 calendar days after the end of the period.  This self-assessment shall address both the strengths and weaknesses of the Contractor's performance during the evaluation period.  Where deficiencies in performance are noted, the Contractor shall describe the actions planned or taken to correct such deficiencies and avoid their recurrence.  The DOE Operations/Field Office Manager, or designee, will review the Contractor's self-assessment, if submitted, as part of its independent evaluation of the contractor's management during the period.  A self-assessment, in and of itself may not be the only basis for the award fee determination.

 

 

CLAUSE I.82 - DEAR 970.5215-2  MAKE OR BUY PLAN (DEC 2000)

 

(a)             Definitions.

 

Buy item means a work activity, supply, or service to be produced or performed by an outside source, including a subcontractor or an affiliate, subsidiary, or division of the contractor.

 

Make item means a work activity, supply, or service to be produced or performed by the contractor using its personnel and other resources at the Department of Energy facility or site.

 

Make-or-Buy plan means a contractor's written program for the contract that identifies work efforts or requirements that either are "make items" or "buy items."

 

(b)      Make-or-Buy Plan.  The contractor shall develop and implement a Make-or-Buy Plan that establishes a preference for providing supplies and services on a least-cost basis, subject to any specific make or buy criteria identified in the contract or otherwise provided by the contracting officer.  In developing and implementing its Make-or-Buy Plan, the contractor agrees to assess subcontracting opportunities and implement subcontracting decisions in accordance with the following:

 

(1)       The Contractor shall conduct internal productivity improvement and cost-reduction programs so that in-house performance options can be made more efficient and cost-effective.

 

(2)       The Contractor shall consider subcontracting opportunities with the maximum practicable regard for open communications with potentially affected employees and their representatives.  Similarly, a Contractor shall communicate its plans, activities, cost-benefit analyses, and decisions to those stakeholders, including representatives of the community and local businesses, likely to be affected by such actions.

 

(c)            Submission and approval.  For new contract awards, the Contractor shall submit an initial make-or-buy plan, for approval, within 180 days after the contract award.  If the existing contract is to be extended, the Contractor shall submit a Make-or-Buy Plan for review and approval at least 90 days prior to the commencement of the negotiations for the extension. The following documentation shall be prepared and submitted:

 

(1)       A description of each work item, and if appropriate, the identification of the associated Work Authorization or Work Breakdown Structure element;

 

(2)       The categorization of each work item as "must make," "must buy," or "can make or buy," with the reasons for such categorization in consideration of the program specific make or buy criteria (including least cost considerations).  For non-core capabilities categorized as "must make", a cost/benefit analysis must be performed for each item if:

 

(i)            the Contractor is not the least-cost performer, and

 

(ii)            a program specific make-or-buy criterion does not otherwise justify a "must make" categorization;

 

(3)       A decision to either "make" or "buy" in consideration of the program specific make or buy criteria (including least cost considerations) for work effort categorized as "can make or buy";

 

(4)       Identification of potential suppliers and subcontractors, if known, and their location and size status;

 

(5)       A recommendation to defer a make or buy decision where categorization of an identifiable work effort is impracticable at the time of initial development of the plan and a schedule for future re-evaluation;

 

(6)       A description of the impact of a change in current practice of making or buying on the existing work force; and

 

(7)       Any additional information appropriate to support and explain the plan.

 

(d)            Conduct of operations.  Once a make-or-buy plan is approved, the Contractor shall perform in accordance with the plan.  The make-or-buy plan is attached hereto as Appendix E.

 

(e)            Changes to the make-or-buy plan. The make-or-buy plan established in accordance with paragraph (b) of this clause shall remain in effect for the term of the contract, unless:

 

(1)       A lesser period is provided either for the total plan or for individual items or work effort; 

 

(2)       The circumstances supporting the make-or-buy decisions change, or

 

(3)       New work is identified.

 

At least annually, the Contractor shall review its approved make-or-buy plan to ensure that it reflects current conditions.  Changes to the approved make-or-buy plan shall be submitted in advance of the effective date of the proposed change in sufficient time to permit evaluation and review.  Changes shall be submitted in accordance with the instructions provided by the Contracting Officer.  Modification of the make-or-buy plan to incorporate proposed changes or additions shall be effective upon the Contractor's receipt of the Contracting Officer's written approval.

 

 

CLAUSE I.83 - DEAR 970.5215-3  CONDITIONAL PAYMENT OF FEE, PROFIT, OR INCENTIVES (DEC 2000) (ALTERNATE I) (DEC 2000)

 

In order for the Contractor to receive all otherwise earned fee, fixed fee, profit, or share of cost savings under the contract in an evaluation period, the Contractor must meet the minimum requirements in paragraphs (a) and (b) of this clause, and if Alternate I is applicable, (a) through (d) of this clause.  If the Contractor does not meet the minimum requirements, the DOE Operations/Field Office Manager or designee may make a unilateral determination to reduce the evaluation period's otherwise earned fee, fixed fee, profit or share of costs savings as described in the following paragraphs of this clause.

 

(a)               Minimum requirements for Environment, Safety & Health (ES&H) Program.  The Contractor shall develop, obtain DOE approval of, and implement a Safety Management System in accordance with the provisions of the clause entitled, "Integration of Environment, Safety and Health into Work Planning and Execution," if included in the contract, or as otherwise agreed with the contracting officer.  The minimum performance requirements of the system will be set forth in the approved Safety Management System, or similar document.  If the Contractor fails to obtain approval of the Safety Management System or fails to achieve the minimum performance requirements of the system during the evaluation period, the DOE Operations/Field Office Manager or designee, at his/her sole discretion, may reduce any otherwise earned fees, fixed fee, profit or share of cost savings for the evaluation period by an amount up to the amount earned.

 

(b)               Minimum requirements for catastrophic event.  If, in the performance of this contract, there is a catastrophic event (such as a fatality, or a serious workplace-related injury or illness to one or more Federal, contractor, or subcontractor employees or the general public, loss of control over classified or special nuclear material, or significant damage to the environment), the DOE Operations/Field Office Manager or designee may reduce any otherwise earned fee for the evaluation period by an amount up to the amount earned.  In determining any diminution of fee, fixed fee, profit, or share of cost savings resulting from a catastrophic event, the DOE Operations/Field Office Manager or designee will consider whether willful misconduct and/or negligence contributed to the occurrence and will take into consideration any mitigating circumstances presented by the contractor or other sources.

 

(c)               Minimum requirements for specified level of performance. 

 

(1)              At a minimum the Contractor must perform the following:

 

(i)                 the requirements with specific incentives at the level of performance set forth in the Statement of Work, Work Authorization Directive, or similar document unless an otherwise minimal level of performance has been established in the specific incentive;

 

(ii)               all of the performance requirements directly related to requirements specifically incentivized at a level of performance such that the overall performance of these related requirements is at an acceptable level; and

 

(iii)             all other requirements at a level of performance such that the total performance of the contract is not jeopardized.

 

(2)              The evaluation of the Contractor's achievement of the level of performance shall be unilaterally determined by the contracting officer.  To the extent that the Contractor fails to achieve the minimum performance levels specified in the Statement of Work, Work Authorization Directive, or similar document, during the evaluation period, the DOE Operations/Field Office Manager, or designee, may reduce any otherwise earned fee, fixed fee, profit, or shared net savings for the evaluation period.  Such reduction shall not result in the total of earned fee, fixed fee, profit, or shared net savings being less than 25% of the total available fee amount.  Such 25% shall include base fee, if any.

 

(d)            Minimum requirements for cost performance.

 

(1)              Requirements incentivized by other than cost incentives must be performed within their specified cost constraint and must not adversely impact the costs of performing unrelated activities.           

 

(2)              The performance of requirements with a specific cost incentive must not adversely impact the costs of performing unrelated requirements.

 

(3)              The Contractor's performance within the stipulated cost performance levels for the evaluation period shall be determined by the contracting officer.  To the extent the Contractor fails to achieve the stipulated cost performance levels, the DOE Operations/Field Office Manager, or designee, at his/her sole discretion, may reduce in whole or in part any otherwise earned fee, fixed fee, profit, or shared net savings for the evaluation period.  Such reduction shall not result in the total of earned fee, fixed fee, profit or shared net savings being less than 25% of the total available fee amount.  Such 25% shall include base fee, if any.

 

 

CLAUSE I.84 - DEAR 970.5222-1  COLLECTIVE BARGAINING AGREEMENTS --MANAGEMENT AND OPERATING CONTRACTS (DEC 2000)

 

When negotiating collective bargaining agreements applicable to the work force under this contract, the Contractor shall use its best efforts to ensure such agreements contain provisions designed to assure continuity of services.  All such agreements entered into during the contract period of performance should provide that grievances and disputes involving the interpretation or application of the agreement will be settled without resorting to strike, lockout, or other interruption of normal operations.  For this purpose, each collective bargaining agreement should provide an effective grievance procedure with arbitration as its final step, unless the parties mutually agree upon some other method of assuring continuity of operations.  As part of such agreements, management and labor should agree to cooperate fully with the Federal Mediation and Conciliation Service. The contractor shall include the substance of this clause in any subcontracts for protective services or other services performed on the DOE-owned site which will affect the continuity of operation of the facility.

 

 

CLAUSE I.85 - DEAR 970.5222-2  OVERTIME MANAGEMENT (DEC 2000)

 

(a)       The Contractor shall maintain adequate internal controls to ensure that employee overtime is authorized only if cost effective and necessary to ensure performance of work under this contract.

 

(b)       The Contractor shall notify the Contracting Officer when in any given year it is likely that overtime usage as a percentage of payroll may exceed 4%.

 

(c)        The Contracting Officer may require the submission, for approval, of a formal annual overtime control plan whenever Contractor overtime usage as a percentage of payroll has exceeded, or is likely to exceed, 4%, or if the Contracting Officer otherwise deems overtime expenditures excessive.  The plan shall include, at a minimum:

 

(1)            An overtime premium fund (maximum dollar amount);

 

(2)            Specific controls for casual overtime for non-exempt employees;

 

(3)            Specific parameters for allowability of exempt overtime;

 

(4)            An evaluation of alternatives to the use of overtime; and

 

(5)            Submission of a semi-annual report that includes for exempt and non-exempt employees:

 

(i)            Total cost of overtime;

 

(ii)            Total cost of straight time;

 

(iii)            Overtime cost as a percentage of straight-time cost;

 

(iv)            Total overtime hours;

 

(v)            Total straight-time hours; and

 

(vi)     Overtime hours as a percentage of straight-time hours.

 

 

CLAUSE I.86 - DEAR 970.5223-1  Integration of Environment, Safety, and Health Into Work Planning and Execution (DEC 2000)

 

(a)       For the purposes of this clause,

 

(1)       Safety encompasses environment, safety and health, including pollution prevention and waste minimization; and

 

(2)            Employees include subcontractor employees.

 

(b)       In performing work under this contract, the contractor shall perform work safely, in a manner that ensures adequate protection for employees, the public, and the environment, and shall be accountable for the safe performance of work.  The contractor shall exercise a degree of care commensurate with the work and the associated hazards.  The contractor shall ensure that management of environment, safety and health (ES&H) functions and activities becomes an integral but visible part of the contractor's work planning and execution processes.  The contractor shall, in the performance of work, ensure that:

 

(1)       Line management is responsible for the protection of employees, the public, and the environment.  Line management includes those contractor and subcontractor employees managing or supervising employees performing work.

 

(2)       Clear and unambiguous lines of authority and responsibility for ensuring (ES&H) are established and maintained at all organizational levels.

 

(3)       Personnel possess the experience, knowledge, skills, and abilities that are necessary to discharge their responsibilities.

 

(4)       Resources are effectively allocated to address ES&H, programmatic, and operational considerations.  Protecting employees, the public, and the environment is a priority whenever activities are planned and performed.

 

(5)       Before work is performed, the associated hazards are evaluated and an agreed-upon set of ES&H standards and requirements are established which, if properly implemented, provide adequate assurance that employees, the public, and the environment are protected from adverse consequences.

 

(6)       Administrative and engineering controls to prevent and mitigate hazards are tailored to the work being performed and associated hazards.  Emphasis should be on designing the work and/or controls to reduce or eliminate the hazards and to prevent accidents and unplanned releases and exposures.

 

(7)       The conditions and requirements to be satisfied for operations to be initiated and conducted are established and agreed-upon by DOE and the contractor.  These agreed-upon conditions and requirements are requirements of the contract and binding upon the contractor.  The extent of documentation and level of authority for agreement shall be tailored to the complexity and hazards associated with the work and shall be established in a Safety Management System.

 

(c)        The contractor shall manage and perform work in accordance with a documented Safety Management System (System) that fulfills all conditions in paragraph (b) of this clause at a minimum.  Documentation of the System shall describe how the contractor will:

 

(1)            Define the scope of work;

 

(2)            Identify and analyze hazards associated with the work;

 

(3)            Develop and implement hazard controls;

 

(4)            Perform work within controls; and

 

(5)       Provide feedback on adequacy of controls and continue to improve safety management.

 

(d)       The System shall describe how the contractor will establish, document, and implement safety performance objectives, performance measures, and commitments in response to DOE program and budget execution guidance while maintaining the integrity of the System.  The System shall also describe how the contractor will measure system effectiveness.

 

(e)       The contractor shall submit to the contracting officer documentation of its System for review and approval.  Dates for submittal, discussions, and revisions to the System will be established by the contracting officer.  Guidance on the preparation, content, review, and approval of the System will be provided by the contracting officer.  On an annual basis, the contractor shall review and update, for DOE approval, its safety performance objectives, performance measures, and commitments consistent with and in response to DOE's program and budget execution guidance and direction.  Resources shall be identified and allocated to meet the safety objectives and performance commitments as well as maintain the integrity of the entire System.  Accordingly, the System shall be integrated with the contractor's business processes for work planning, budgeting, authorization, execution, and change control.

 

(f)         The contractor shall comply with, and assist the Department of Energy in complying with, ES&H requirements of all applicable laws and regulations, and applicable directives identified in the clause of this contract entitled “Laws, Regulations, and DOE Directives.”  The contractor shall cooperate with Federal and non-Federal agencies having jurisdiction over ES&H matters under this contract.

 

(g)       The contractor shall promptly evaluate and resolve any noncompliance with applicable ES&H requirements and the System.  If the contractor fails to provide resolution or if, at any time, the contractor's acts or failure to act causes substantial harm or an imminent danger to the environment or health and safety of employees or the public, the contracting officer may issue an order stopping work in whole or in part.  Any stop work order issued by a contracting officer under this clause (or issued by the contractor to a subcontractor in accordance with paragraph (i) of this clause) shall be without prejudice to any other legal or contractual rights of the Government.  In the event that the contracting officer issues a stop work order, an order authorizing the resumption of the work may be issued at the discretion of the contracting officer.  The contractor shall not be entitled to an extension of time or additional fee or damages by reason of, or in connection with, any work stoppage ordered in accordance with this clause.

 

(h)            Regardless of the performer of the work, the contractor is responsible for compliance with the ES&H requirements applicable to this contract.  The contractor is responsible for flowing down the ES&H requirements applicable to this contract to subcontracts at any tier to the extent necessary to ensure the contractor's compliance with the requirements.

 

(i)         The contractor shall include a clause substantially the same as this clause in subcontracts involving complex or hazardous work on site at a DOE-owned or -leased facility.  Such subcontracts shall provide for the right to stop work under the conditions described in paragraph (g) of this clause.  Depending on the complexity and hazards associated with the work, the contractor may choose not to require the subcontractor to submit a Safety Management System for the contractor's review and approval.

 

 

CLAUSE I.87 - DEAR 970.5223-2  ACQUISITION AND USE OF ENVIRONMENTALLY PREFERABLE PRODUCTS AND SERVICES (DEC 2000)

 

(a)       In the performance of this contract, the Contractor shall comply with the requirements of the following issuances:

 

            (1)            Executive Order 13101 of September 14, 1998, entitled “Greening the Government Through Waste Prevention, Recycling, and Federal

                        Acquisition."

 

            (2)            Section 6002 of the Resource Conservation and Recovery Act (RCRA) of 1976, as amended (42 U.S.C. 6962, Pub. L. 94-580, 90 Stat. 2822),

 

            (3)            Title 40 of the Code of Federal Regulations, Subchapter I, Part 247 (Comprehensive Guidelines for the Procurement of Products Containing Recovered Materials) and such other Subchapter I Parts or Comprehensive Procurement Guidelines as the Environmental Protection Agency may issue from time to time as guidelines for the procurement of products that contain recovered/recycled materials,

 

            (4)            "U.S. Department of Energy Affirmative Procurement Program for Products Containing Recovered Materials" and related guidance document(s), as they are identified in writing by the Department.

 

(b)       The Contractor shall prepare and submit reports on matters related to the use of environmentally preferable products and services from time to time in accordance with written direction (e.g., in a specified format) from the Contracting Officer.

 

(c)        In complying with the requirements of paragraph (a) of this clause, the Contractor shall coordinate its concerns and seek implementing guidance on Federal and Departmental policy, plans, and program guidance with the DOE recycling point of contact, who shall be identified by the Contracting Officer.  Reports required pursuant to paragraph (b) of this clause, shall be submitted through the DOE recycling point of contact. 

 

 

CLAUSE I.88 - DEAR 970.5223-4  Workplace substance abuse programs at DOE sites (DEC 2000)

 

(a)            Program Implementation.  The contractor shall, consistent with 10 CFR part 707, Workplace Substance Abuse Programs at DOE Sites, incorporated herein by reference with full force and effect, develop, implement, and maintain a workplace substance abuse program.

 

(b)            Remedies. In addition to any other remedies available to the Government, the contractor's failure to comply with the requirements of 10 CFR part 707 or to perform in a manner consistent with its approved program may render the contractor subject to:  the suspension of contract payments, or, where applicable, a reduction in award fee; termination for default; and suspension or debarment.

 

(c)            Subcontracts.

 

(1)       The contractor agrees to notify the contracting officer reasonably in advance of, but not later than 30 days prior to, the award of any subcontract the contractor believes may be subject to the requirements of 10 CFR part 707.

 

(2)       The DOE prime contractor shall require all subcontracts subject to the provisions of 10 CFR part 707 to agree to develop and implement a workplace substance abuse program that complies with the requirements of 10 CFR part 707, Workplace Substance Abuse Programs at DOE Sites, as a condition for award of the subcontract.  The DOE prime contractor shall review and approve each subcontractor's program, and shall periodically monitor each subcontractor's implementation of the program for effectiveness and compliance with 10 CFR part 707.

 

(3)       The contractor agrees to include, and require the inclusion of, the requirements of this clause in all subcontracts, at any tier, that are subject to the provisions of 10 CFR part 707.

 

 

CLAUSE I.89 - DEAR 970.5226-1  DIVERSITY PLAN (DEC 2000)

 

The Contractor shall submit a Diversity Plan to the Contracting Officer for approval within 90 days after the effective date of this contract (or contract modification, if appropriate).  The Contractor shall submit an update to its Plan annually or with its annual fee proposal.  Guidance for preparation of a Diversity Plan is provided in Appendix M.  The Plan shall include innovative strategies for increasing opportunities to fully use the talents and capabilities of a diverse work force.  The Plan shall address, at a minimum, the Contractor’s approach for promoting diversity through (1) the Contractor’s work force, (2) educational outreach, (3) community involvement and outreach, (4) subcontracting,  (5) economic development (including technology transfer), and (6) the prevention of profiling based on race or national origin.

 

 

CLAUSE I.90 - DEAR 970.5226-3  COMMUNITY COMMITMENT (DEC 2000)

 

It is the policy of the DOE to be a constructive partner in the geographic region in which DOE conducts its business.  The basic elements of this policy include:  (1) recognizing the diverse interests of the region and its stakeholders, (2) engaging regional stakeholders in issues and concerns of mutual interest, and (3) recognizing that giving back to the community is a worthwhile business practice.  Accordingly, the Contractor agrees that its business operations and performance under the Contract will be consistent with the intent of the policy and elements set forth above.

 

 

 

 

CLAUSE I.91 - DEAR 970.5227-2  RIGHTS IN DATA-TECHNOLOGY TRANSFER (DEC 2000)

 

(a)            Definitions.

 

(1)       Computer data bases, as used in this clause, means a collection of data in a form capable of, and for the purpose of, being stored in, processed, and operated on by a computer.  The term does not include computer software.

 

(2)       Computer software, as used in this clause, means (i) computer programs which are data comprising a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations and (ii) data comprising source code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the computer program to be produced, created, or compiled.  The term does not include computer data bases.

 

(3)       Data, as used in this clause, means recorded information, regardless of form or the media on which it may be recorded.  The term includes technical data and computer software.  The term “data” does not include data incidental to the administration of this contract, such as financial, administrative, cost and pricing, or management information.

 

(4)       Limited rights data, as used in this clause, means data, other than computer software, developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged.  The Government’s rights to use, duplicate, or disclose limited rights data are as set forth in the Limited Rights Notice of paragraph (g) of this clause.

 

(5)       Restricted computer software, as used in this clause, means computer software developed at private expense and that is a trade secret; is commercial or financial and is confidential or privileged; or is published copyrighted computer software, including minor modifications of any such computer software.  The Government’s rights to use, duplicate, or disclose restricted computer software are as set forth in the Restricted Rights Notice of subparagraph (h) of this clause.

 

(6)       Technical data, as used in this clause, means recorded data, regardless of form or characteristic, that are of a scientific or technical nature.  Technical data does not include computer software, but does include manuals and instructional materials and technical data formatted as a computer data base.

 

(7)       Unlimited rights, as used in this clause, means the rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, including by electronic means, and perform publicly and display publicly, in any manner, including by electronic means, and for any purpose whatsoever, and to have or permit others to do so.

 

(b)            Allocation of Rights.

 

(1)       The Government shall have:

 

(i)            Ownership of all technical data and computer software first produced in the performance of this Contract;

 

(ii)            Unlimited rights in technical data and computer software specifically used in the performance of this Contract, except as provided herein regarding copyright, limited rights data, or restricted computer software, and except for data subject to the withholding provisions for protected Cooperative Research and Development Agreement (CRADA) information in accordance with Technology Transfer actions under this Contract, or other data   specifically protected by statute for a period of time or, where, approved by DOE, appropriate instances of the DOE Work for Others Program;

 

(iii)            The right to inspect technical data and computer software first produced or specifically used in the performance of this Contract at all reasonable times.  The Contractor shall make available all necessary facilities to allow DOE personnel to perform such inspection;

 

(iv)            The right to have all technical data and computer software first produced or specifically used in the performance of this Contract delivered to the Government or otherwise disposed of by the Contractor, either as the Contracting Officer may from time to time direct during the progress of the work or in any event as the Contracting Officer shall direct upon completion or termination of this Contract.  The Contractor agrees to leave a copy of such data at the facility or plant to which such data relate, and to make available for access or to deliver to the Government such data upon request by the Contracting Officer.  If such data are limited rights data or restricted computer software, the rights of the Government in such data shall be governed solely by the provisions of paragraph (g) of this clause (“Rights in Limited Rights Data”) or paragraph (h) of this clause (“Rights in Restricted Computer Software”); and

 

(v)            The right to remove, cancel, correct, or ignore any markings not authorized by the terms of this Contract on any data furnished hereunder if, in response to a written inquiry by DOE concerning the propriety of the markings, the Contractor fails to respond thereto within 60 days or fails to substantiate the propriety of the markings.  In either case DOE will notify the Contractor of the action taken.

 

(2)       The Contractor shall have:

 

(i)            The right to withhold its limited rights data and restricted computer software unless otherwise provided in provisions of this clause;

 

(ii)               The right to use for its private purposes, subject to patent, security or other provisions of this Contract, data it first produces in the performance of this Contract, except for data in DOE’s Uranium Enrichment Technology, including diffusion, centrifuge, and atomic vapor laser isotope separation, provided the data requirements of this Contract have been met as of the date of the private use of such data; and

 

 (iii)            The right to assert copyright subsisting in scientific and technical articles as provided in paragraph (d) of this clause and the right to request permission to assert copyright subsisting in works other than scientific and technical articles as provided in paragraph (e) of this clause.

 

(3)       The Contractor agrees that for limited rights data or restricted computer software or other technical, business or financial data in the form of recorded information which it receives from, or is given access to by DOE or a third party, including a DOE Contractor or subcontractor, and for technical data or computer software it first produces under this Contract which is authorized to be marked by DOE, the Contractor shall treat such data in accordance with any restrictive legend contained thereon.

 

(c)            Copyright (General).

 

(1)       The Contractor agrees not to mark, register or otherwise assert copyright in any data in a published or unpublished work, other than as set forth in paragraphs (d) and (e) of this clause.

 

(2)       Except for material to which the Contractor has obtained the right to assert copyright in accordance with either paragraph (d) or (e) of this clause, the Contractor agrees not to include in the data delivered under this Contract any material copyrighted by the Contractor and not to knowingly include any material copyrighted by others without first granting or obtaining at no cost a license therein for the benefit of the Government of the same scope as set forth in paragraph (d) of this clause.  If the Contractor believes that such copyrighted material for which the license cannot be obtained must be included in the data to be delivered, rather than merely incorporated therein by reference, the Contractor shall obtain the written authorization of the Contracting Officer to include such material in the data prior to its delivery.

 

(d)            Copyrighted works (scientific and technical articles).

 

(1)              The Contractor shall have the right to assert, without prior approval of the Contracting Officer, copyright subsisting in scientific and technical articles composed under this Contract or based on or containing data first produced in the performance of this Contract, and published in academic, technical or professional journals, symposia proceedings or similar works.  When assertion of copyright is made, the Contractor shall affix the applicable copyright notice of 17 U.S.C. 401 or 402 and acknowledgement of Government sponsorship (including contract number) on the data when such data are delivered to the Government as well as when the data are published or deposited for registration as a published work in the U.S. Copyright Office.  The Contractor grants to the Government, and others acting on its behalf, a non-exclusive, paid-up, irrevocable, world-wide license in such copyrighted data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government.

 

(2)              The Contractor shall mark each scientific or technical article first produced or composed under this Contract and submitted for journal publication or similar means of dissemination with a notice, similar in all material respects to the following, on the front reflecting the Government’s non-exclusive, paid-up, irrevocable, world-wide license in the copyright.

 

Notice:  This manuscript has been authored by Universities Research Association, Inc. under Contract No. DE-AC02-76CH03000 with the U.S. Department of Energy.  The United States Government retains and the publisher, by accepting the article for publication, acknowledges that the United States Government retains a non-exclusive, paid-up, irrevocable, world-wide license to publish or reproduce the published form of this manuscript, or allow others to do so, for United States Government purposes.

(End of Notice)

 

(3)            The title to the copyright of the original of unclassified graduate theses and the original of related unclassified scientific papers shall vest in the author thereof, subject to the right of DOE to retain duplicates of such documents and to use such documents for any purpose whatsoever without any claim on the part of the author or the contractor for additional compensation.

 

(e)            Copyrighted works (other than scientific and technical articles and data produced under a CRADA).  The Contractor may obtain permission to assert copyright subsisting in technical data and computer software first produced by the Contractor in performance of this Contract, where the Contractor can show that commercialization would be enhanced by such copyright protection, subject to the following:

 

(1)              Contractor Request to Assert Copyright.

 

(i)                 For data other than scientific and technical articles and data produced under a CRADA, the Contractor shall submit in writing to Patent Counsel its request to assert copyright in data first produced in the performance of this Contract pursuant to this clause.  The right of the Contractor to copyright data first produced under a CRADA is as described in the individual CRADA.  Each request by the Contractor must include:

 

(A)              The identity of the data (including any computer program) for which the Contractor requests permission to assert copyright, as well as an abstract which is descriptive of the data and is suitable for dissemination purposes,

 

(B)              The program under which it was funded,

 

(C)             Whether, to the best knowledge of the Contractor, the data is subject to an international treaty or agreement,

 

(D)             Whether the data is subject to export control,

 

(E)              A statement that the Contractor plans to commercialize the data in compliance with the clause of this contract entitled, “Technology Transfer Mission,” within five (5) years after obtaining permission to assert copyright or, on a case-by-case basis, a specified longer period where the Contractor can demonstrate that the ability to commercialize effectively is dependent upon such longer period, and

 

(F)              For data other than computer software, a statement explaining why the assertion of copyright is necessary to enhance commercialization and is consistent with DOE’s dissemination responsibilities.

 

(ii)            For data that is developed using other funding sources in addition to DOE funding, the permission to assert copyright in accordance with this clause must also be obtained by the Contractor from all other funding sources prior to the Contractor’s request to Patent Counsel.  The request shall include the Contractor’s certification or other documentation acceptable to Patent Counsel demonstrating such permission has been obtained.

 

(iii)            Permission for the Contractor to assert copyright in excepted categories of data as determined by DOE will be expressly withheld.  Such excepted categories include data whose release (A) would be detrimental to national security, i.e., involve classified information or data or sensitive information under Section 148 of the Atomic Energy Act of 1954, as amended, or are subject to export control for nonproliferation and other nuclear-related national security purposes, (B) would not enhance the appropriate transfer or dissemination and commercialization of such data, (C) would have a negative impact on U.S. industrial competitiveness, (D) would prevent DOE from meeting its obligations under treaties and international agreements, or (E) would be detrimental to one or more of DOE’s programs.  Additional excepted categories may be added by the Assistant General Counsel for Technology Transfer and Intellectual Property.  Where data are determined to be under export control restriction, the Contractor may obtain permission to assert copyright subject to the provisions of this clause for purposes of limited commercialization in a manner that complies with export control statutes and applicable regulations.  In addition, notwithstanding any other provision of this Contract, all data developed with Naval Reactors’ funding and those data that are classified fall within excepted categories.  The rights of the Contractor in data are subject to the disposition of data rights in the treaties and international agreements identified under this Contract as well as those additional treaties and international agreements which DOE may from time to time identify by unilateral amendment to the Contract; such amendment listing added treaties and international agreements is effective only for data which is developed after the date such treaty or international agreement is added to this Contract.  Also, the Contractor will not be permitted to assert copyright in data in the form of various technical reports generated by the Contractor under the Contract without first obtaining the advanced written permission of the Contracting Officer.

 

(2)       DOE Review and Response to Contractor’s Request.

 

The Patent Counsel shall use its best efforts to respond in writing within 90 days of receipt of a complete request by the Contractor to assert copyright in technical data and computer software pursuant to this clause. Such response shall either give or withhold DOE’s permission for the Contractor to assert copyright or advise the Contractor that DOE needs additional time to respond, and the reasons therefor.

 

(3)       Permission for Contractor to Assert Copyright.

 

(i)            For computer software, the Contractor shall furnish to the DOE designated, centralized software distribution and control point, the Energy Science and Technology Software Center, at the time permission to assert copyright is given under paragraph (e)(2) of this clause:  (A) An abstract describing the software suitable for publication, (B) the source code for each software program, and (C) the object code and at least the minimum support documentation needed by a technically competent user to understand and use the software.  The Patent Counsel, for good cause shown by the Contractor, may allow the minimum support documentation to be delivered within 60 days after permission to assert copyright is given or at such time the minimum support documentation becomes available.  The Contractor acknowledges that the DOE designated software distribution and control point may provide a technical description of the software in an announcement identifying its availability from the copyright holder.

 

(ii)            Unless otherwise directed by the Contracting Officer, for data other than computer software to which the Contractor has received permission to assert copyright under paragraph (e)(2) of this clause above, the Contractor shall within sixty (60) days of obtaining such permission furnish to DOE’s Office of Scientific and Technical Information (OSTI) a copy of such data as well as an abstract of the data suitable for dissemination purposes.  The Contractor acknowledges that OSTI may provide an abstract of the data in an announcement to DOE, its contractors and to the public identifying its availability from the copyright holder.

 

(iii)            For a five year period or such other specified period as specifically approved by Patent Counsel beginning on the date the Contractor is given permission to assert copyright in data, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide license in such copyrighted data to reproduce, prepare derivative works and perform publicly and display publicly, by or on behalf of the Government.  Upon request, the initial period may be extended after DOE approval.  The DOE approval will be based on the standard that the work is still commercially available and the market demand is being met.

 

(iv)            After the period approved by Patent Counsel for application of the limited Government license described in paragraph (e)(3)(iii) of this clause, or if, prior to the end of such period(s), the Contractor abandons commercialization activities pertaining to the data to which the Contractor has been given permission to assert copyright, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide license in such copyrighted data to reproduce, distribute copies to the public, prepare derivative works, perform publicly and display publicly, and to permit others to do so.

 

(v)            Whenever the Contractor asserts copyright in data pursuant to this paragraph (e), the Contractor shall affix the applicable copyright notice of 17 U.S.C. 401 or 402 on the copyrighted data and also an acknowledgement of the Government sponsorship and license rights of paragraphs (e)(3)(iii) and (iv) of this clause.  Such action shall be taken when the data are delivered to the Government, published, licensed or deposited for registration as a published work in the U.S. Copyright Office.

 

The acknowledgement of Government sponsorship and license rights shall be as follows:

 

NOTICE:  These data were produced by Universities Research Association, Inc. under Contract No. DE-AC02-76CH03000 with the Department of Energy.  For (period approved by DOE Patent Counsel) from (date permission to assert copyright was obtained), the Government is granted for itself and others acting on its behalf a nonexclusive, paid-up, irrevocable worldwide license in this data to reproduce, prepare derivative works, and perform publicly and display publicly, by or on behalf of the Government.  There is provision for the possible extension of the term of this license. Subsequent to that period or any extension granted, the Government is granted for itself and others acting on its behalf a nonexclusive, paid-up, irrevocable worldwide license in this data to reproduce, prepare derivative works, distribute copies to the public, perform publicly and display publicly, and to permit others to do so.  The specific term of the license can be identified by inquiry made to Contractor or DOE.  Neither the United States nor the United States Department of Energy, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any data, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights.

 

                                    (End of Notice)

 

(vi)            With respect to any data to which the Contractor has received permission to assert copyright, the DOE has the right, during the five (5) year or specified longer period approved by Patent Counsel as provided for in paragraph (e) of this clause, to request the Contractor to grant a nonexclusive, partially exclusive or exclusive license in any field of use to a responsible applicant(s) upon terms that are reasonable under the circumstances, and if the Contractor refuses such request, to grant such license itself, if the DOE determines that the Contractor has not made a satisfactory demonstration that either it or its licensee(s) is actively pursuing commercialization of the data as set forth in subparagraph (e)(l)(A) of this clause.  Before licensing under this subparagraph (vi), DOE shall furnish the Contractor a written request for the Contractor to grant the stated license, and the Contractor shall be allowed thirty (30) days (or such longer period as may be authorized by the Contracting Officer for good cause shown in writing by the Contractor) after such notice to show cause why the license should not be granted.  The Contractor shall have the right to appeal the decision of the DOE to grant the stated license to the Invention Licensing Appeal Board as set forth in 10 CFR 781.65 - “Appeals.”

 

(vii)            No costs shall be allowable for maintenance of copyrighted data, primarily for the benefit of the Contractor and/or a licensee which exceeds DOE Program needs, except as expressly provided in writing by the Contracting Officer.  The Contractor may use its net royalty income to effect such maintenance costs.

 

(viii)            At any time the Contractor abandons commercialization activities for data for which the Contractor has received permission to assert copyright in accordance with this clause, it shall advise OSTI and Patent Counsel and upon request assign the copyright to the Government so that the Government can distribute the data to the public.

 

(4)       The following notice may be placed on computer software prior to any publication and prior to the Contractor’s obtaining permission from the Department of Energy to assert copyright in the computer software pursuant to paragraph (c)(3) of this section.

 

NOTICE:  This computer software was prepared by Universities Research Association, Inc. and [insert the individual author], hereinafter the Contractor, under Contract No. DE-AC02-76CH03000 with the Department of Energy (DOE).  All rights in the computer software are reserved by DOE on behalf of the United States Government and the Contractor as provided in the Contract.  You are authorized to use this computer software for Governmental purposes but it is not to be released or distributed to the public.  NEITHER THE GOVERNMENT NOR THE CONTRACTOR MAKES ANY WARRANTY, EXPRESS OR IMPLIED, OR ASSUMES ANY LIABILITY FOR THE USE OF THIS SOFTWARE.  This notice including this sentence must appear on any copies of this computer software.

(End of Notice)

 

(5)       A similar notice can be used for data, other than computer software, upon approval of DOE Patent Counsel.

 

(f)            Subcontracting.

 

(1)       Unless otherwise directed by the Contracting Officer, the Contractor agrees to use in subcontracts in which technical data or computer software is expected to be produced or in subcontracts for supplies that contain a requirement for production or delivery of data in accordance with the policy and procedures of 48 CFR Subpart 27.4 as supplemented by 48 CFR 927.401 through 927.409, the clause entitled, “Rights in Data-General” at 48 CFR 52.227-14 modified in accordance with 927.409(a) and including Alternate V.  Alternates II through IV of that clause may be included as appropriate with the prior approval of DOE Patent Counsel, and the Contractor shall not acquire rights in a subcontractor’s limited rights data or restricted computer software, except through the use of Alternates II or III, respectively, without the prior approval of DOE Patent Counsel.  The clause at 48 CFR 52.227-16, Additional Data Requirements, shall be included in subcontracts in accordance with 48 CFR 927.409(h). The Contractor shall use instead the Rights in Data--Facilities clause at 48 CFR  970.5227-1 in subcontracts, including subcontracts for related support services, involving the design or operation of any plants or facilities or specially designed equipment for such plants or facilities that are managed or operated under its contract with DOE.

 

(2)       It is the responsibility of the Contractor to obtain from its subcontractors technical data and computer software and rights therein, on behalf of the Government, necessary to fulfill the Contractor’s obligations to the Government with respect to such data.  In the event of refusal by a subcontractor to accept a clause affording the Government such rights, the Contractor shall:

 

(i)            Promptly submit written notice to the Contracting Officer setting forth reasons for the subcontractor’s refusal and other pertinent information which may expedite disposition of the matter, and

 

(ii)            Not proceed with the subcontract without the written authorization of the Contracting Officer.

 

(3)       Neither the Contractor nor higher-tier subcontractors shall use their power to award subcontracts as economic leverage to acquire rights in a subcontractor’s limited rights data and restricted computer software for their private use.

 

(g)       Rights in Limited Rights Data.

 

Except as may be otherwise specified in this Contract as data which are not subject to this paragraph, the Contractor agrees to and does hereby grant to the Government an irrevocable nonexclusive, paid-up license by or for the Government, in any limited rights data of the Contractor specifically used in the performance of this Contract, provided, however, that to the extent that any limited rights data when furnished or delivered is specifically identified by the Contractor at the time of initial delivery to the Government or a representative of the Government, such data shall not be used within or outside the Government except as provided in the “Limited Rights Notice” set forth below.  All such limited rights data shall be marked with the following “Limited Rights Notice:"

 

LIMITED RIGHTS NOTICE

 

These data contain “limited rights data,” furnished under Contract No. DE-AC02-76CH03000 with the United States Department of Energy which may be duplicated and used by the Government with the express limitations that the “limited rights data” may not be disclosed outside the Government or be used for purposes of manufacture without prior permission of the Contractor, except that further disclosure or use may be made solely for the following purposes:

 

(a)              Use (except for manufacture) by support services contractors within the scope of their contracts;

 

(b)       This “limited rights data” may be disclosed for evaluation purposes under the restriction that the “limited rights data” be retained in confidence and not be further disclosed;

 

(c)        This “limited rights data” may be disclosed to other contractors participating in the Government’s program of which this Contract is a part for information or use (except for manufacture) in connection with the work performed under their contracts and under the restriction that the “limited rights data” be retained in confidence and not be further disclosed;

 

            (d)            This “limited rights data” may be used by the Government or others on its behalf for emergency repair or overhaul work under the restriction that the “limited rights data” be retained in confidence and not be further disclosed; and

 

            (e)            Release to a foreign government, or instrumentality thereof, as the interests of the United States Government may require, for information or evaluation, or for emergency repair or overhaul work by such government.

 

 

                        This Notice shall be marked on any reproduction of this data in whole or in part.

 

                        (End of Notice)

 

(h)        Rights in Restricted Computer Software.

 

(1)       Except as may be otherwise specified in this Contract as data which are not subject to this paragraph, the Contractor agrees to and does hereby grant to the Government an irrevocable, nonexclusive, paid-up, license by or for the Government, in any restricted computer software of the Contractor specifically used in the performance of this Contract; provided, however, that to the extent that any restricted computer software when furnished or delivered is specifically identified by the Contractor at the time of initial delivery to the Government or a representative of the Government, such data shall not be used within or outside the Government except as provided in the “Restricted Rights Notice” set forth below. All such restricted computer software shall be marked with the following “Restricted Rights Notice:”

 

Restricted Rights Notice-Long Form

 

(a)            This computer software is submitted with restricted rights under Department of Energy Contract No. DE-AC02-76CH03000.  It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice.

 

(b)            This computer software may be:

 

(1)            Used or copied for use in or with the computer or computers for which it was acquired, including use at any Government installation to which such computer or computers may be transferred;

 

(2)            Used, copied for use, in a backup or replacement computer if any computer for which it was acquired is inoperative or is replaced;

(3)            Reproduced for safekeeping (archives) or backup purposes;

 

(4)            Modified, adapted, or combined with other computer software, provided that only the portions of the derivative software consisting of the restricted computer software are to be made subject to the same restricted rights; and

 

(5)            Disclosed to and reproduced for use by contractors under a service contract (of the type defined in 48 CFR 37.101) in accordance with subparagraphs (b)(l) through (4) of this Notice, provided the Government makes such disclosure or reproduction subject to these restricted rights.

 

(c)            Notwithstanding the foregoing, if this computer software has been published under copyright, it is licensed to the Government, without disclosure prohibitions, with the rights set forth in the restricted rights notice above.

 

(d)            This Notice shall be marked on any reproduction of this computer software, in whole or in part.

 

(End of Notice)

 

(2)       Where it is impractical to include the Restricted Rights Notice on restricted computer software, the following short‑form Notice may be used in lieu thereof:

 

Restricted Rights Notice—Short Form

 

                        Use, reproduction, or disclosure is subject to restrictions set forth in the Long Form Notice of DOE Contract No. DE-AC02-76CH03000 with Universities Research Association, Inc.

 

(End Of Notice)

 

(3)       If the software is embedded, or if it is commercially impractical to mark it with human readable text, then the symbol R and the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may be used.  This will be read to mean restricted computer software, subject to the rights of the Government as described in the Long Form Notice, in effect as of the date indicated next to the symbol.  The symbol shall not be used to mark human readable material. In the event this Contract contains any variation to the rights in the Long Form Notice, then the contract number must also be cited.

 

(4)       If restricted computer software is delivered with the copyright notice of 17 U.S.C. 401, the software will be presumed to be published copyrighted computer software licensed to the Government without disclosure prohibitions and with unlimited rights, unless the Contractor includes the following statement with such copyright notice “Unpublished--rights reserved under the Copyright Laws of the United States.”

 

(i)            Relationship to Patents.

 

Nothing contained in this clause creates or is intended to imply a license to the Government in any patent or is intended to be construed as affecting the scope of any licenses or other rights otherwise granted to the Government under any patent.

 

 

CLAUSE I.92 - DEAR 970.5227-3  TECHNOLOGY TRANSFER MISSION (DEC 2000) (DEVIATION) 

 

This clause has as its purpose implementation of the National Competitiveness Technology Transfer Act of 1989 (Sections 3131, 3132, 3133, and 3157 of Pub. L. 101-189 and as amended by Pub. L. 103-160, Sections 3134 and 3160).  The Contractor shall conduct technology transfer activities with a purpose of providing benefit from Federal research to U.S. industrial competitiveness.

 

(a)            Authority.

 

(1)       In order to ensure the full use of the results of research and development efforts of, and the capabilities of, the Laboratory, technology transfer, including Cooperative Research and Development Agreements (CRADAs), is established as a mission of the Laboratory consistent with the policy, principles and purposes of Sections 11(a)(1) and 12(g) of the Stevenson-Wydler Technology Innovation Act of 1980, as amended (15 U.S.C. 3710a); Section 3132(b) of Pub. L. 101‑189, Sections 3134 and 3160 of Pub. L. 103-160, and of Chapter 38 of the Patent Laws (35 U.S.C. 200 et seq.); Section 152 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2182); Section 9 of the Federal Nonnuclear Energy Research and Development Act of 1974 (42 U.S.C. 5908); and Executive Order 12591 of April 10, 1987.

 

(2)       In pursuing the technology transfer mission, the Contractor is authorized to conduct activities including but not limited to:  identifying and protecting Intellectual Property made, created or acquired at or by the Laboratory; negotiating licensing agreements and assignments for Intellectual Property made, created or acquired at or by the Laboratory that the Contractor controls or owns; bailments; negotiating all aspects of and entering into CRADAs; providing technical consulting and personnel exchanges; conducting science education activities and reimbursable Work for Others (WFO); providing information exchanges; and making available laboratory or weapon production user facilities. It is fully expected that the Contractor shall use all of the mechanisms available to it to accomplish this technology transfer mission, including, but not limited to, CRADAs, user facilities, WFO, science education activities, consulting, personnel exchanges, assignments, and licensing in accordance with this clause.

 

 

 

 

(b)            Definitions.

 

(1)       Contractor's Laboratory Director means the individual who has supervision over all or substantially all of the Contractor's operations at the Laboratory.

 

(2)       Intellectual Property means patents, trademarks, copyrights, mask works, protected CRADA information, and other forms of comparable property rights protected by Federal Law and other foreign counterparts.

 

(3)       Cooperative Research and Development Agreement (CRADA) means any agreement entered into between the Contractor as operator of the Laboratory, and one or more parties including at least one non‑Federal party under which the Government, through its laboratory, provides personnel, services, facilities, equipment, intellectual property, or other resources with or without reimbursement (but not funds to non‑Federal parties) and the non‑Federal parties provide funds, personnel, services, facilities, equipment, intellectual property, or other resources toward the conduct of specified research or development efforts which are consistent with the missions of the Laboratory; except that such term does not include a procurement contract, grant, or cooperative agreement as those terms are used in sections 6303, 6304, and 6305 of Title 31 of the United States Code.

 

(4)       Joint Work Statement (JWS) means a proposal for a CRADA prepared by the Contractor, signed by the Contractor's Laboratory Director or designee which describes the following:

 

(i)            Purpose;

 

(ii)            Scope of Work which delineates the rights and responsibilities of the Government, the Contractor and Third Parties, one of which must be a non‑Federal party;

 

(iii)            Schedule for the work; and

 

(iv)            Cost and resource contributions of the parties associated with the work and the schedule.

 

(5)       Assignment means any agreement by which the Contractor transfers ownership of Laboratory Intellectual Property, subject to the Government's retained rights.

 

(6)       Laboratory Biological Materials means biological materials capable of replication or reproduction, such as plasmids, deoxyribonucleic acid molecules, ribonucleic acid molecules, living organisms of any sort and their progeny, including viruses, prokaryote and eukaryote cell lines, transgenic plants and animals, and any derivatives or modifications thereof or products produced through their use or associated biological products, made under this contract by Laboratory employees or through the use of Laboratory research facilities.

 

(7)       Laboratory Tangible Research Product means tangible material results of research which

 

(i)            are provided to permit replication, reproduction, evaluation or confirmation of the research effort, or to evaluate its potential commercial utility;

 

(ii)            are not materials generally commercially available; and

 

(iii)            were made under this contract by Laboratory employees or through the use of Laboratory research facilities.

 

(8)       Bailment means any agreement in which the Contractor permits the commercial or non‑ commercial transfer of custody, access or use of Laboratory Biological Materials or Laboratory Tangible Research Product for a specified purpose of technology transfer or research and development, including without limitation evaluation, and without transferring ownership to the bailee.

 

(c)            Allowable Costs.

 

(1)       The Contractor shall establish and carry out its technology transfer efforts through appropriate organizational elements consistent with the requirements for an Office of Research and Technology Applications (ORTA) pursuant to paragraphs (b) and (c) of Section 11 of the Stevenson - Wydler Technology Innovation Act of 1980, as amended (15 U.S.C. 3710).  The costs associated with the conduct of technology transfer through the ORTA including activities associated with obtaining, maintaining, licensing, and assigning Intellectual Property rights, increasing the potential for the transfer of technology, and the widespread notice of technology transfer opportunities, shall be deemed allowable provided that such costs meet the other requirements of the allowable costs provisions of this Contract.  In addition to any separately designated funds, these costs in any fiscal year shall not exceed an amount equal to 0.5 percent of the operating funds included in the Federal research and development budget (including Work For Others) of the Laboratory for that fiscal year without written approval of the Contracting Officer.

 

(2)       The Contractor's participation in litigation to enforce or defend Intellectual Property claims incurred in its technology transfer efforts shall be as provided in the clause entitled "Insurance--Litigation and Claims" of this contract.

 

(d)            Conflicts of Interest - Technology Transfer.

 

The Contractor shall have implementing procedures that seek to avoid employee and organizational conflicts of interest, or the appearance of conflicts of interest, in the conduct of its technology transfer activities.  These procedures shall apply to other persons participating in Laboratory research or related technology transfer activities.  Such implementing procedures shall be provided to the contracting officer for review and approval within sixty (60) days after execution of this contract.  The contracting officer shall have thirty (30) days thereafter to approve or require specific changes to such procedures.  Such implementing procedures shall include procedures to:

 

(1)       Inform employees of and require conformance with standards of conduct and integrity in connection with the CRADA activity in accordance with the provisions of paragraph (n)(5) of this clause;

 

(2)       Review and approve employee activities so as to avoid conflicts of interest arising from commercial utilization activities relating to Contractor‑developed Intellectual Property;

 

(3)       Conduct work performed using royalties so as to avoid interference with or adverse effects on ongoing DOE projects and programs;

 

(4)       Conduct activities relating to commercial utilization of Contractor-developed Intellectual Property so as to avoid interference with or adverse effects on user facility or WFO activities of the Contractor;

 

(5)       Conduct DOE-funded projects and programs so as to avoid the appearance of conflicts of interest or actual conflicts of interest with non-Government funded work;

 

(6)       Notify the contracting officer with respect to any new work to be performed or proposed to be performed under the Contract for DOE or other Federal agencies where the new work or proposal involves Intellectual Property in which the Contractor has obtained or intends to request or elect title;

 

(7)       Except as provided elsewhere in this Contract, obtain the approval of the contracting officer for any licensing of or assignment of title to Intellectual Property rights by the Contractor to any business or corporate affiliate of the Contractor;

 

(8)       Obtain the approval of the contracting officer prior to any assignment, exclusive licensing, or option for exclusive licensing, of Intellectual Property to any individual who has been a Laboratory employee within the previous two years or to the company in which the individual is a principal; 

 

(9)       Notify non-Federal sponsors of WFO activities, or non-Federal users of user facilities, of any relevant Intellectual Property interest of the Contractor prior to execution of WFOs or user agreements; and

 

(10)     Notify DOE prior to evaluating a proposal by a third party or DOE, when the subject matter of the proposal involves an elected or waived subject invention under this contract or one in which the Contractor intends to elect to retain title under this contract.

 

(e)            Fairness of Opportunity.

 

In conducting its technology transfer activities, the Contractor shall prepare procedures and take all reasonable measures to ensure widespread notice of availability of technologies suited for transfer and opportunities for exclusive licensing and joint research arrangements.  The requirement to widely disseminate the availability of technology transfer opportunities does not apply to a specific application originated outside of the Laboratory and by entities other than the Contractor.

 

(f)         U.S. Industrial Competitiveness.

 

(1)       In the interest of enhancing U.S. Industrial Competitiveness, the Contractor shall, in its licensing and assignments of Intellectual Property, give preference in such a manner as to enhance the accrual of economic and technological benefits to the U.S. domestic economy.  The Contractor shall consider the following factors in all of its licensing and assignment decisions involving Laboratory intellectual property where the Laboratory obtains rights during the course of the Contractor's operation of the Laboratory under this contract:

 

(i)            whether any resulting design and development will be performed in the United States and whether resulting products, embodying parts, including components thereof, will be substantially manufactured in the United States; or

 

(ii)            (A)            whether the proposed licensee or assignee has a business unit located in the United States and whether significant economic and technical benefits will flow to the United States as a result of the license or assignment agreement; and

 

(B)            in licensing any entity subject to the control of a foreign company or government, whether such foreign government permits United States agencies, organizations or other persons to enter into cooperative research and development agreements and licensing agreements, and has policies to protect United States Intellectual Property rights.

 

(2)       If the Contractor determines that neither of the conditions in paragraphs (f)(1)(i) or (ii) of this clause are likely to be fulfilled, the Contractor, prior to entering into such an agreement, must obtain the approval of the contracting officer.  The contracting officer shall act on any such requests for approval within thirty (30) days.

 

(3)       The Contractor agrees to be bound by the provisions of 35 U.S.C. 204 (Preference for United States industry).

 

(g)            Indemnity - Product Liability.

 

In entering into written technology transfer agreements, including but not limited to, research and development agreements, licenses, assignments and CRADAs, the Contractor agrees to include in such agreements a requirement that the U.S. Government and the Contractor, except for any negligent acts or omissions of the Contractor, be indemnified for all damages, costs, and expenses, including attorneys' fees, arising from personal injury or property damage occurring as a result of the making, using or selling of a product, process or service by or on behalf of the Participant, its assignees or licensees which was derived from the work performed under the agreement.  The Contractor shall identify and obtain the approval of the contracting officer for any proposed exceptions to this requirement such as where State or local law expressly prohibit the Participant from providing indemnification or where the research results will be placed in the public domain.

 

(h)            Disposition of Income.

 

(1)       Royalties or other income earned or retained by the Contractor as a result of performance of authorized technology transfer activities herein shall be used by the Contractor for scientific research, development, technology transfer, and education at the Laboratory, consistent with the research and development mission and objectives of the Laboratory and subject to Section 12(b)(5) of the Stevenson-Wydler Technology Innovation Act of 1980, as amended (15 U.S.C. 3710a(b)(5)) and Chapter 38 of the Patent Laws (35 U.S.C. 200 et seq.) as amended through the effective date of this contract award or modification.  If the net amounts of such royalties and income received from patent licensing after payment of patenting costs, licensing costs, payments to inventors and other expenses incidental to the administration of Subject Inventions during any fiscal year exceed 5 percent of the Laboratory's budget for that fiscal year, 75 percent of such excess amounts shall be paid to the Treasury of the United States, and the remaining amount of such excess shall be used by the Contractor for the purposes as described above in this paragraph.  Any inventions arising out of such scientific research and development activities shall be deemed to be Subject Inventions under the Contract.

 

(2)       The Contractor shall include as a part of its annual Laboratory Institutional Plan or other such annual document a plan setting out those uses to which royalties and other income received as a result of performance of authorized technology transfer activities herein will be applied at the Laboratory, and at the end of the year, provide a separate accounting for how the funds were actually used.  Under no circumstances shall these royalties and income be used for an illegal augmentation of funds furnished by the U.S. Government.

 

(3)       The Contractor shall establish subject to the approval of the contracting officer a policy for making awards or sharing of royalties with Contractor employees, other coinventors and coauthors, including Federal employee coinventors when deemed appropriate by the contracting officer.

 

(i)            Transfer to Successor Contractor.

 

In the event of termination or upon the expiration of this Contract, any unexpended balance of income received for use at the Laboratory shall be transferred, at the contracting officer's request, to a successor contractor, or in the absence of a successor contractor, to such other entity as designated by the contracting officer.  The Contractor shall transfer title, as one package, to the extent the Contractor retains title, in all patents and patent applications, licenses, accounts containing royalty revenues from such license agreements, including equity positions in third party entities, and other Intellectual Property rights which arose at the Laboratory, to the successor contractor or to the Government as directed by the contracting officer.

 

(j)            Technology Transfer Affecting the National Security.

 

(1)       The Contractor shall notify and obtain the approval of the contracting officer, prior to entering into any technology transfer arrangement, when such technology or any part of such technology is classified or sensitive under Section 148 of the Atomic Energy Act (42 U.S.C. 2168).  Such notification shall include sufficient information to enable DOE to determine the extent that commercialization of such technology would enhance or diminish security interests of the United States, or diminish communications within DOE's nuclear weapon production complex.  DOE shall use its best efforts to complete its determination within sixty (60) days of the Contractor's notification, and provision of any supporting information, and DOE shall promptly notify the Contractor as to whether the technology is transferable.

 

(2)       The Contractor shall include in all of its technology transfer agreements with third parties, including, but not limited to, CRADAs, licensing agreements and assignments, notice to such third parties that the export of goods and/or Technical Data from the United States may require some form of export control license or other authority from the U.S. Government and that failure to obtain such export control license may result in criminal liability under U.S. laws.

 

(3)       For other than fundamental research as defined in National Security Decision Directive 189, the Contractor is responsible to conduct internal export control reviews and assure that technology is transferred in accordance with applicable law.

 

(k)            Records.

 

The Contractor shall maintain records of its technology transfer activities in a manner and to the extent satisfactory to the DOE and specifically including, but not limited to, the licensing agreements, assignments and the records required to implement the requirements of paragraphs (e), (f), and (h) of this clause and shall provide reports to the contracting officer to enable DOE to maintain the reporting requirements of Section 12(c)(6) of the Stevenson-Wydler Technology Innovation Act of 1980, as amended (15 U.S.C. 3710a(c)(6)).  Such reports shall be made annually in a format to be agreed upon between the Contractor and DOE and in such a format which will serve to adequately inform DOE of the Contractor's technology transfer activities while protecting any data not subject to disclosure under the Rights in Technical Data clause and paragraph (n) of this clause.  Such records shall be made available in accordance with the clauses of this Contract pertaining to inspection, audit and examination of records.

 

(l)                  Reports to Congress.

 

To facilitate DOE's reporting to Congress, the Contractor is required to submit annually to DOE a technology transfer plan for conducting its technology transfer function for the upcoming year, including plans for securing Intellectual Property rights in Laboratory innovations with commercial promise and plans for managing such innovations so as to benefit the competitiveness of United States industry.  This plan shall be provided to the contracting officer on or before October 1st of each year.

 

(m)             Oversight and Appraisal.

 

The Contractor is responsible for developing and implementing effective internal controls for all technology transfer activities consistent with the audit and record requirements of this Contract. Laboratory Contractor performance in implementing the technology transfer mission and the effectiveness of the Contractor's procedures will be evaluated by the contracting officer as part of the annual appraisal process, with input from the cognizant Secretarial Officer or program office.

 

(n)            Technology Transfer Through Cooperative Research and Development Agreements.

 

Upon approval of the contracting officer and as provided in a DOE approved Joint Work Statement (JWS), the Laboratory Director, or designee, may enter into CRADAs on behalf of the DOE subject to the requirements set forth in this paragraph.

 

(1)            Review and Approval of CRADAs

 

(i)            Except as otherwise directed in writing by the contracting officer, each JWS shall be submitted to the contracting officer for approval.  The Contractor's Laboratory Director or designee shall provide a program mission impact statement and shall include an impact statement regarding related Intellectual Property rights known by the Contractor to be owned by the Government to assist the contracting officer in the approval determination.

 

(ii)            The Contractor shall also include (specific to the proposed CRADA), a statement of compliance with the Fairness of Opportunity requirements of paragraph (e) of this clause.

 

(iii)            Within ninety (90) days after submission of a JWS, the contracting officer shall approve, disapprove or request modification to the JWS.  If a modification is required, the contracting officer shall approve or disapprove any resubmission of the JWS within thirty (30) days of its resubmission, or ninety (90) days from the date of the original submission, whichever is later.  The contracting officer shall provide a written explanation to the Contractor's Laboratory Director or designee of any disapproval or requirement for modification of a JWS.

 

(iv)            Upon approval of a JWS, the Contractor's Laboratory Director or designee may submit a CRADA, based upon the approved JWS, to the contracting officer.  The contracting officer, within thirty (30) days of receipt of the CRADA, shall approve or request modification of the CRADA.  If the contracting officer requests a modification of the CRADA, an explanation of such request shall be provided to the Laboratory Director or designee.

 

(v)            Except as otherwise directed in writing by the contracting officer, the Contractor shall not enter into, or begin work under, a CRADA until approval of the CRADA has been granted by the contracting officer.  The Contractor may submit its proposed CRADA to the contracting officer at the time of submitting its proposed JWS or any time thereafter.  However, the contracting officer is not obligated to respond under paragraph (n)(1)(iv) of this clause until within thirty (30) days after approval of the JWS or thirty (30) days after submittal of the CRADA, whichever is later.

 

(2)       Selection of Participants.  The Contractor's Laboratory Director or designee in deciding what CRADA to enter into shall:

 

(i)            Give special consideration to small business firms, and consortia involving small business firms;

 

(ii)            Give preference to business units located in the United States which agree that products or processes embodying Intellectual Property will be substantially manufactured or practiced in the United States and, in the case of any industrial organization or other person subject to the control of a foreign company or government, take into consideration whether or not such foreign government permits United States agencies, organizations, or other persons to enter into cooperative research and development agreements and licensing agreements;

 

(iii)            Provide Fairness of Opportunity in accordance with the requirements of paragraph (e) of this clause; and

 

(iv)            Give consideration to the Conflicts of Interest requirements of paragraph (d) of this clause.

 

(3)            Withholding of Data

 

(i)            Data that is first produced as a result of research and development activities conducted under a CRADA and that would be a trade secret or commercial or financial data that would be privileged or confidential, if such data had been obtained from a non-Federal third party, may be protected from disclosure under the Freedom of Information Act as provided in the Stevenson- Wydler Technology Innovation Act of 1980, as amended (15 U.S.C. 3710a(c)(7)) for a period as agreed in the CRADA of up to five (5)years from the time the data is first produced.  The DOE shall cooperate with the Contractor in protecting such data.

 

(ii)            Unless otherwise expressly approved by the contracting officer in advance for a specific CRADA, the Contractor agrees, at the request of the contracting officer, to transmit such data to other DOE facilities for use by DOE or its Contractors by or on behalf of the Government.  When data protected pursuant to paragraph (n)(3)(i) of this clause is so transferred, the Contractor shall clearly mark the data with a legend setting out the restrictions against private use and further dissemination, along with the expiration date of such restrictions.

 

(iii)            In addition to its authority to license Intellectual Property, the Contractor may enter into licensing agreements with third parties for data developed by the Contractor under a CRADA subject to other provisions of this Contract.  However, the Contractor shall neither use the protection against dissemination nor the licensing of data as an alternative to the submittal of invention disclosures which include data protected pursuant to paragraph (n)(3)(i) of this clause.

 

(4)            Work For Others and User Facility Programs

 

(i)            WFO and User Facility Agreements (UFAs) are not CRADAs and will be available for use by the Contractor in addition to CRADAs for achieving utilization of employee expertise and unique facilities for maximizing technology transfer.  The Contractor agrees form prospective CRADA participants, which are intending to substantially pay full cost recovery for the effort under a proposed CRADA, of the availability of alternative forms of agreements, i.e., WFO and UFA, and of the Class Patent Waiver provisions associated therewith.

 

(ii)            Where the Contractor believes that the transfer of technology to the U.S. domestic economy will benefit from, or other equity considerations dictate, an arrangement other than the Class Waiver of patent rights to the sponsor in WFO and UFAs, a request may be made to the contracting officer for an exception to the Class Waivers.

 

(iii)            Rights to inventions made under agreements other than funding agreements with third parties shall be governed by the appropriate provisions incorporated, with DOE approval, in such agreements, and the provisions in such agreements take precedence over any disposition of rights contained in this Contract.  Disposition of rights under any such agreement shall be in accordance with any DOE class waiver (including Work for Others and User Class Waivers) or individually negotiated waiver which applies to the agreement.

 

(5)            Conflicts of Interest

 

(i)            Except as provided in paragraph (n)(5)(iii) of this clause, the Contractor shall assure that no employee of the Contractor shall have a substantial role (including an advisory role) in the preparation, negotiation, or approval of a CRADA, if, to such employee's knowledge:

 

(A)            Such employee, or the spouse, child, parent, sibling, or partner of such employee, or an organization (other than the Contractor) in which such employee serves as an officer, director, trustee, partner, or employee --

 

(1)            holds financial interest in any entity, other than the Contractor, that has a substantial interest in the preparation, negotiation, or approval of the CRADA;

 

(2)            receives a gift or gratuity from any entity, other than the Contractor, that has a substantial interest in the preparation, negotiation, or approval of the CRADA; or

 

(B)            A financial interest in any entity, other than the Contractor, that has a substantial interest in the preparation, negotiation, or approval of the CRADA, is held by any person or organization with whom such employee is negotiating or has any arrangement concerning prospective employment.

 

(ii)            The Contractor shall require that each employee of the Contractor who has a substantial role (including an advisory role) in the preparation, negotiation, or approval of a CRADA certify through the Contractor to the contracting officer that the circumstances described in paragraph (n)(5)(i) of this clause do not apply to that employee.

 

(iii)            The requirements of paragraphs (n)(5)(i) and (n)(5)(ii) of this clause shall not apply in a case where the contracting officer is advised by the Contractor in advance of the participation of an employee described in those paragraphs in the preparation, negotiation or approval of a CRADA of the nature of and extent of any financial interest described in paragraph (n)(5)(i) of this clause, and the contracting officer determines that such financial interest is not so substantial as to be considered likely to affect the integrity of the Contractor employee's participation in the process of preparing, negotiating, or approving the CRADA.

 

(o)            Technology Transfer in Other Cost -Sharing Agreements.

 

In conducting research and development activities in cost-shared agreements not covered by paragraph (n) of this clause, the Contractor, with prior written permission of the contracting officer, may provide for the withholding of data produced thereunder in accordance with the applicable provisions of paragraph (n)(3) of this clause.

 

 

CLAUSE I.93 - DEAR 970.5227-4  AUTHORIZATION AND CONSENT (DEC 2000)

 

(a)       The Government authorizes and consents to all use and manufacture of any invention described in and covered by a United States patent in the performance of this contract or any subcontract at any tier.

 

(b)       If the Contractor is sued for copyright infringement or anticipates the filing of such a lawsuit, the Contractor may request authorization and consent to copy a copyrighted work from the contracting officer.  Programmatic necessity is a major consideration for DOE in determining whether to grant such request.

 

(c)        The Contractor agrees to include, and require inclusion of, the Authorization and Consent clause at 52.227-1, without Alternate 1, but suitably modified to identify the parties, in all subcontracts at any tier for supplies or services (including construction, architect-engineer services, and materials, supplies, models, samples, and design or testing services expected to exceed $25,000).

 

(d)       The Contractor agrees to include, and require inclusion of, paragraph (a) of this Authorization and Consent clause, suitably modified to identify the parties, in all subcontracts at any tier for research and development activities.  Omission of an authorization and consent clause from any subcontract, including those valued less than $25,000 does not affect this authorization and consent. 

 

                                                           

CLAUSE I.94 - DEAR 970.5227-5  NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT  (DEC 2000)

 

(a)       The Contractor shall report to the Contracting Officer promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this contract of which the Contractor has knowledge.

 

(b)       If any person files a claim or suit against the Government on account of any alleged patent or copyright infringement arising out of the performance of this contract or out of the use of any supplies furnished or work or services performed hereunder, the Contractor shall furnish to the Government, when requested by the Contracting Officer, all evidence and information in possession of the Contractor pertaining to such suit or claim.  Except where the Contractor has agreed to indemnify the Government, the Contractor shall furnish such evidence and information at the expense of the Government.

 

(c)        The Contractor agrees to include, and require inclusion of, this clause suitably modified to identify the parties, in all subcontracts at any tier expected to exceed $25,000.

 

 

CLAUSE I.95 - DEAR 970.5227-6  PATENT INDEMNITY - SUBCONTRACTS  (DEC 2000)

 

Except as otherwise authorized by the Contracting Officer, the Contractor shall obtain indemnification of the Government and its officers, agents, and employees against liability, including costs, for infringement of any United States patent (except a patent issued upon an application that is now or may hereafter be withheld from issue pursuant to a secrecy order by the Government) from Contractor’s subcontractors for any contract work subcontracted in accordance with FAR 48 CFR 52.227-3.

 

 

CLAUSE I.96 - DEAR 970.5227-8  REFUND OF ROYALTIES (DEC 2000) (DEVIATION)

 

(a)       During performance of this contract, if any royalties are proposed to be charged to the Government as costs under this Contract , the Contractor agrees to submit for approval of the Contracting Officer, prior to the execution of any license, the following information relating to each separate item of royalty:

 

            (1)             Name and address of licensor;

 

(2)       Patent numbers, patent application serial numbers, or other basis on which the royalty is payable;

 

            (3)       Brief description, including any part or model numbers of each contract item or component on which the royalty is payable;

 

(4)            Percentage or dollar rate of royalty per unit;

 

(5)            Unit price of contract item;

 

(6)            Number of units;

 

(7)            Total dollar amount of royalties; and

 

(8)            A copy of the proposed license agreement.

 

(b)       If specifically requested by the Contracting Officer, the Contractor shall furnish a copy of any license agreement entered into prior to the effective date of this clause and an identification of applicable claims of specific patents, or other basis upon which royalties are payable.

     

(c)        The term “royalties” as used in this clause refers to any costs or charges in the nature of royalties, license fees, patent or license amortization costs, or the like, for the use of or for rights in patents and patent applications and which are used in the performance of this contract or any subcontract hereunder.

           

(d)       The Contractor shall furnish to the Contracting Officer, annually upon request, a statement of royalties paid or required to be paid in connection with performing this contract and subcontracts hereunder.    

           

(e)       For royalty payments under licenses entered into after the effective date of this clause, costs incurred for royalties proposed under this paragraph shall be allowable only to the extent that such royalties are approved by the Contracting Officer.  The allowability of royalty payments made under license agreements entered into prior to the effective date of this clause shall be governed by the terms of the Contract then in effect.  If the Contracting Officer determines that existing or proposed royalty payments are inappropriate, any payments subsequent to such determination shall be allowable only to the extent approved by the Contracting Officer.

 

(f)            Regardless of prior DOE approval of any individual payments or royalties, DOE may contest at any time the enforceability, validity, scope of, or title to, a patent for which Contractor makes a royalty or other payment.

 

(g)       If at any time within 3 years after this contract ends, the Contractor for any reason is relieved in whole or in part from the payment of any royalties to which this clause applies, the Contractor shall promptly notify the Contracting Officer of that fact and shall promptly reimburse the Government for any refunds received or royalties paid after having received notice of such relief.

           

(h)        The Contractor agrees to include, and require inclusion of, this clause, including this paragraph (h), suitably modified to identify the parties in any subcontract at any tier in which the amount of royalties reported during negotiation of the subcontract exceeds $250.

 

 

CLAUSE I.97 - DEAR 970.5227-10  PATENT RIGHTS - MANAGEMENT AND OPERATING CONTRACTS, NONPROFIT ORGANIZATION OR SMALL BUSINESS FIRM CONTRACTOR  (DEC 2000)

 

(a)            DEFINITIONS.

 

(1)              DOE licensing regulations means the Department of Energy patent licensing regulations at 10 CFR Part 781.

 

(2)       Exceptional circumstance subject invention means any subject invention in a technical field or related to a task determined by the Department of Energy to be subject to an exceptional circumstance under 35 U.S.C. 202(a)(ii) and in accordance with 37 CFR Part 401.3(e).

 

(3)       Invention means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code, or any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).

 

(4)       Made when used in relation to any invention means the conception or first actual reduction to practice of such invention.

 

(5)            Nonprofit organization means a university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and exempt from taxation under section 501(a) of the Internal Revenue Code (26 U.S.C. 501(a)) or any nonprofit scientific or educational organization qualified under a state nonprofit organization statute.

 

(6)       Patent Counsel means the Department of Energy (DOE) Patent Counsel assisting the DOE contracting activity.

 

(7)       Practical application means to manufacture, in the case of a composition or product; to practice, in the case of a process or method; or to operate, in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

 

(8)       Small business firm means a small business concern as defined at section 2 of Pub. L. 85-536 (15 U.S.C. 632) and implementing regulations of the Administrator of the Small Business Administration.  For the purpose of this clause, the size standards for small business concerns involved in Government procurement and subcontracting at 13 CFR 121.3-8 and 13 CFR 121.3-12, respectively, are used.

 

(9)       Subject Invention means any invention of the contractor conceived or first actually reduced to practice in the performance of work under this contract, provided that in the case of a variety of plant, the date of determination (as defined in section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d)) shall also occur during the period of contract performance.

 

(b)            ALLOCATION OF PRINCIPAL RIGHTS.

 

(1)       Retention of title by the Contractor.  Except for exceptional circumstance subject inventions, the contractor may retain the entire right, title, and interest throughout the world to each subject invention subject to the provisions of this clause and 35 U.S.C. 203.  With respect to any subject invention in which the Contractor retains title, the Federal government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States the subject invention throughout the world.

 

(2)            Exceptional circumstance subject inventions.  Except to the extent that rights are retained by the Contractor in a determination of exceptional circumstances or granted to a contractor through a determination of greater rights in accordance with subparagraph (b)(4) of this clause, the Contractor does not have a right to retain title to any exceptional circumstance subject inventions and agrees to assign to the Government the entire right, title, and interest, throughout the world, in and to any exceptional circumstance subject inventions. 

 

(i)            Inventions within or relating to the following fields of technology are exceptional circumstance subject inventions:

 

                                    (A)            uranium enrichment technology;

 

(B)            storage and disposal of civilian high-level nuclear waste and spent fuel technology; and

 

(C)            national security technologies classified or sensitive under Section 148 of the Atomic Energy Act (42 U.S.C. 2168). 

 

                        (ii)            Inventions made under any agreement, contract or subcontract related to the following are exceptional circumstance subject inventions:

 

                                    (A)            DOE Steel Initiative and Metals Initiative;

 

                                    (B)            U.S. Advanced Battery Consortium; and

 

(C)            any funding agreement which is funded in part by the Electric Power Research Institute (EPRI) or the Gas Research Institute (GRI). 

 

(iii)            DOE reserves the right to unilaterally amend this contract to modify, by deletion or insertion, technical fields, tasks, or other classifications for the purpose of determining DOE exceptional circumstance subject inventions.

 

            (3)            Treaties and international agreements.  Any rights acquired by the Contractor in subject inventions are subject to any disposition of right, title, or interest in or to subject inventions provided for in treaties or international agreements identified at Appendix J to this contract.  DOE reserves the right to unilaterally amend this contract to identify specific treaties or international agreements entered into or to be entered into by the Government after the effective date of this contract and to effectuate those license or other rights which are necessary for the Government to meet its obligations to foreign governments, their nationals and international organizations under such treaties or international agreements with respect to subject inventions made after the date of the amendment.

 

(4)       Contractor request for greater rights in exceptional circumstance subject inventions.  The Contractor may request rights greater than allowed by the exceptional circumstance determination in an exceptional circumstance subject invention by submitting such a request in writing to Patent Counsel at the time the exceptional circumstance subject invention is disclosed to DOE or within eight (8) months after conception or first actual reduction to practice of the exceptional circumstance subject invention, whichever occurs first, unless a longer period is authorized in writing by the Patent Counsel for good cause shown in writing by the Contractor.  DOE may, in its discretion, grant or refuse to grant such a request by the Contractor.

 

(5)       Contractor employee-inventor rights.  If the Contractor does not elect to retain title to a subject invention or does not request greater rights in an exceptional circumstance subject invention, a Contractor employee-inventor, after consultation with the Contractor and with written authorization from the Contractor in accordance with 10 CFR 784.9(b)(4), may request greater rights, including title, in the subject invention or the exceptional circumstance invention from DOE, and DOE may, in its discretion, grant or refuse to grant such a request by the Contractor employee-inventor.

 

(6)       Government assignment of rights in Government employees’ subject inventions.  If a Government  employee is a joint inventor of a subject invention or of an exceptional circumstance subject invention to which the Contractor has rights, the Government may assign or refuse to assign to the Contractor any rights in the subject invention or exceptional circumstance subject invention acquired by the Government from the Government  employee, in accordance with 48 CFR 27.304-1(d).  The rights assigned to the Contractor are subject to any provision of this clause that is applicable to subject inventions in which the Contractor retains title, including reservation by the Government of a nonexclusive, nontransferable, irrevocable, paid-up license, except that the Contractor shall file its initial patent application claiming the subject invention or exceptional circumstance invention within one (1) year after the assignment of such rights.  The Contractor shall share royalties collected for the manufacture, use or sale of the subject invention with the Government employee, as DOE deems appropriate. 

(c)             SUBJECT INVENTION DISCLOSURE, ELECTION OF TITLE AND FILING OF PATENT APPLICATION BY CONTRACTOR.

 

(1)              Subject invention disclosure.  The contractor will disclose each subject invention to the Patent Counsel within two months after the inventor discloses it in writing to contractor personnel responsible for patent matters.  The disclosure to the agency shall be in the form of a written report and shall identify the contract under which the invention was made and the inventor(s) and all sources of funding by B&R code for the invention.  It shall be sufficiently complete in technical detail to convey a clear understanding to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological or electrical characteristics of the invention.  The disclosure shall also identify any publication, on sale or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure.  The disclosure shall include a written statement as to whether the invention falls within an exceptional circumstance field.  DOE will make a determination and advise the Contractor within 30 days of receipt of an invention disclosure as to whether the invention is an exceptional circumstance subject invention.  In addition, after disclosure to the Patent Counsel, the Contractor will promptly notify the agency of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the contractor.  The Contractor shall obtain approval from Patent Counsel prior to any release or publication of information concerning any nonelectable subject invention such as an exceptional circumstance subject invention or any subject invention related to a treaty or international agreement.

 

            (2)            Election by the Contractor.  Except as provided in paragraph (b)(2) of this clause, the Contractor will elect in writing whether or not to retain title to any such invention by notifying the Federal agency within two years of disclosure to the Federal agency.  However, in any case where publication, on sale or public use has initiated the one year statutory period wherein valid patent protection can still be obtained in the United States, the period for election of title may be shortened by the agency to a date that is no more than 60 days prior to the end of the statutory period.            

 

            (3)             Filing of patent applications by the Contractor.  The Contractor will file its initial patent application on a subject invention to which it elects to retain title within one year after election of title or, if earlier, or prior to the end of any 1-year statutory period wherein valid patent protection can be obtained in the United States after a publication, on sale, or public use.  The Contractor will file patent applications in additional countries or international patent offices within either ten months of the corresponding initial patent application or six months from the date permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications where such filing has been prohibited by a Secrecy Order.

 

            (4)             Contractor’s request for an extension of time.  Requests for an extension of the time for disclosure, election, and filing under subparagraphs (c)(1), (2) and (3) may, at the discretion of Patent Counsel, be granted.

 

(5)             Publication Approval.  During the course of the work under this contract, the Contractor or its employees may desire to release or publish information regarding scientific or technical developments conceived or first actually reduced to practice in the course of or under this contract.  In order that public disclosure of such information will not adversely affect the patent interest of DOE or the Contractor, approval for release or publication shall be secured from the Contractor personnel responsible for patent matters prior to any such release or publication.  Where DOE’s approval of publication is requested, DOE’s response to such requests for approval shall normally be provided within 90 days except in circumstances in which a domestic patent application must be filed in order to protect foreign rights.  In the case involving foreign patent rights, DOE shall be granted an additional 180 days with which to respond to the request for approval, unless extended by mutual agreement.

 

(d)            CONDITIONS WHEN THE GOVERNMENT MAY OBTAIN TITLE.

 

The Contractor will convey to the DOE, upon written request, title to any subject invention --

 

(1)            If the Contractor fails to disclose or elect title to the subject invention within the times specified in paragraph (c) of this clause, or elects not to retain title; provided, that DOE may only request title within sixty (60) days after learning of the failure of the Contractor to disclose or to elect within the specified times.

 

(2)            In those countries in which the Contractor fails to file a patent application within the times specified in subparagraph (c) of this clause; provided, however, that if the Contractor has filed a patent application in a country after the times specified in subparagraph (c) above, but prior to its receipt of the written request of the DOE, the Contractor shall continue to retain title in that country.

 

(3)            In any country in which the Contractor decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in a reexamination or opposition proceeding on, a patent on a subject invention.

 

(4)            If the Contractor requests that DOE acquire title or rights from the Contractor in a subject invention to which the Contractor had initially retained title or rights, or in an exceptional circumstance subject invention to which the Contractor was granted greater rights, DOE may acquire such title or rights from the Contractor, or DOE may decide against acquiring such title or rights from the Contractor, at DOE’s sole discretion.

 

(e)            MINIMUM RIGHTS OF THE CONTRACTOR AND PROTECTION OF THE CONTRACTOR’S RIGHT TO FILE.

 

            (1)            Request for a Contractor license.  The Contractor may request the right to reserve a revocable, nonexclusive, royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the Contractor fails to disclose the invention within the times specified in paragraph (c) of this clause.  DOE may grant or refuse to grant such a request by the Contractor.  When DOE approves such reservation, the Contractor’s license will normally extend to its domestic subsidiaries and affiliates, if any, within the corporate structure of which the Contractor is a party and includes the right to grant sublicenses of the same scope to the extent the Contractor was legally obligated to do so at the time the contract was awarded.  The license is transferable only with the approval of DOE, except when transferred to the successor of that part of the contractor’s business to which the invention pertains.

 

(2)       Revocation or modification of a Contractor license.  The Contractor’s domestic license may be revoked or modified by DOE to the extent necessary to achieve expeditious practical application of the subject invention pursuant to an application for an exclusive license submitted in accordance with applicable provisions at 37 CFR Part 404 and DOE licensing regulations at 10 CFR Part 781.  This license will not be revoked in the field of use or the geographical areas in which the Contractor has achieved practical application and continues to make the benefits of the subject invention reasonably accessible to the public.  The license in any foreign country may be revoked or modified at the discretion of DOE to the extent the Contractor, its licensees, or the domestic subsidiaries or affiliates have failed to achieve practical application of the subject invention in that foreign country.

 

(3)       Notice of revocation of modification of a Contractor license.  Before revocation or modification of the license, DOE will furnish the Contractor a written notice of its intention to revoke or modify the license, and the Contractor will be allowed thirty days (or such other time as may be authorized by DOE for good cause shown by the Contractor) after the notice to show cause why the license should not be revoked or modified.  The Contractor has the right to appeal, in accordance with applicable regulations in 37 CFR Part 404 and DOE licensing regulations at 10 CFR Part 781 concerning the licensing of Government owned inventions, any decision concerning the revocation or modification of the license.

 

(f)            CONTRACTOR ACTION TO PROTECT THE GOVERNMENT’S INTEREST.

 

(1)       Execution of delivery of title or license instruments.  The Contractor agrees to execute or to have executed, and promptly deliver to the Patent Counsel all instruments necessary to accomplish the following actions:

 

                        (i)            establish or confirm the rights the Government has throughout the world in those subject inventions to which the Contractor elects to retain title, and

 

(ii)            convey title to DOE