ML23156A478

PR-MISC. Notice - 54FR40420 - Acquisition Regulation (Nrcar): Debarment

ML23156A478
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Issue date:	10/02/1989
From:	Norry P Office of Administration
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PR-MISC. NOTICE, 54FR40420
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ADAMS Template: SECY-067 DOCUMENT DATE: 10/02/1989 TITLE: PR-MISC. NOTICE - 54FR40420 - ACQUISITION REGULATION (NRCAR): DEBARMENT CASE

REFERENCE:

PR-MISC. NOTICE 54FR40420 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF 1 PROPOSED RULE: PR-MISC. NOTICE OPEN ITEM (Y/N) N RULE NAME: ACQUISITION REGULATION (NRCAR): DEBARMENT PROPOSED RULE FED REG CITE: 54FR40420 PROPOSED RULE PUBLICATION DATE: 10/02/89 NUMBER OF COMMENTS: 4 ORIGINAL DATE FOR COMMENTS: 12/01/89 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 57FR61152 FINAL RULE PUBLICATION DATE: 12/23/92 NOTES ON: FINAL RULE INCORPORATED CHANGES ON ORGANIZATIONAL CONFLICT OF STATUS : INTEREST (SEE PR ON COI PUB. AT 57FR37140 ON 8/18/92) AND F RULE: DEBARMENT (SEE FR ON DEBARMENT PUB. AT 57FR29220). FILE LOC. P-1.

PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR (S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PR-MISC. NOTICE RULE TITLE: ACQUISITION REGULATION (NRCAR): DEBARMENT OPOSED RULE PROPOSED RULE DATE PROPOSED RULE ECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: 09/22/89 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: 12/09/92 STAFF CONTACTS ON THE RULE CONTACTl: EDWARD HALMAN MAIL STOP: P-1114 PHONE: 492-4347 CONTACT2: MAIL STOP: PHONE:

PRESS PAGEUP TO SEE STATUS OF RULEMAKING PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR (S) TO STOP DISPLAY

ET NO. PR-MISC. NOTICE (48 C 20)

R40420)

In the Matter of ACQUISITION REGULATION {NRCAR): DEBARMENT E DATE OF TITLE OR

~KETED DOCUMENT DESCRIPTION OF DOCUMENT

/ 28/89 09/22/89 FEDERAL REGISTER NOTICE - PROPOSED RULE

/ 01/89 11/20/89 COMMENT OF UNIV. OF CA. RESEARCH ADMINISTRATION

{DAVID MEARS, DIRECTOR OF RESEARCH) ( 1) 06/90 03/01/90 COMMENT OF OFFICE OF FEDERAL PROCUREMENT POLICY

{DAV ID F. BAKER, ASSOCIATE ADM. FOR) ( 2)

/ 28/90 03/23/90 COMMENT OF SCIENCE APPLICATIONS INTERNATIONAL CORP.

(EDWARD A. STRAKER, SECTOR V.P.) ( 3) 29/90 03/23/90 COMMENT OF SCIENCE APPLICATIONS INTERNATIONAL CORP.

{THOMAS J. RODEHAU) ( 4)

/ 25/92 06/22/92 FINAL RULE (DEBARMENT) PUBLISHED ON 7/1/92 AT 57 FR 29220

/ 10/92 12/09/92 FINAL RULE ON ACQUISITION REGULATION (INCLUDING

• l / 27/93 04/26/93 DEBARMENT AND ORGANIZATIONAL CONFLICTS OF INTEREST) PUBLISHED ON 12/23/92 AT 57 FR 61152 MINOR AMENDMENTS TO THE FINAL RULE.

5/3/93 AT 58 FR 26253.

PUBLISHED ON 31/93 08/31/93 AMENDMENTS TO FINAL RULE PUBLISHED IN THE FEDERAL REGISTER ON 9/8/93 AT 58 FR 47220.

- J'{r~sc.;;,_N ot,~~ 4 t-c 2-0

(_S t-j FR.. 'i Ot../ )1) [7590 P]

NUCLEAR REGULATORY COMMISSION 48 CFR Parts 2017 AND 2052 31 P3 :25

• 93 I"'

RIN 3150 - AE78 Nuclear Regulatory commission Acquisition Regulation; Minor Amendments AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule; Miscellaneous amendments.

SUMMARY

This final rule makes a number of minor corrective and conforming amendments to the NRC's acquisition regulation. The

• final rule is necessary to correct the errors and inform the public of the corrections.

EFFECTIVE DATE: (Upon publication).

FOR FURTHER INFORMATION CONTACT: Edward L. Halman, Director, Division of Contracts and Property Management, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 492-4347.

SUPPLEMENTARY INFORMATION:

• On December 23, 1992 (57 FR 61152), the Nuclear Regulatory commission (NRC) published a final rule which expanded the existing Nuclear Regulatory Commission Acquisition Regulation (NRCAR) to implement and supplement the government-wide Federal Acquisition Regulation. The final rule established requirements for the procurement of goods and services within the NRC that were necessary to satisfy the particular needs of the agency.

This document makes minor corrections and conforming changes to the NRCAR. The necessary changes are as follows:

Section 2017.204 is Amended-~o revise the duration of contract extensions that the Head of the Contracting Activity may approve.

In Part 2052, the "Security" clause is revised to identify the Changes Clause as the authority under which changes to the

_____C_ollll!l:if:ls,t~11 ~§. _s_~~ur_i ty_!,"_e_g!J._1_ati_o!}~ and_ requirements __ will be _____________________ _

incorporated into a contract.

Administrative Procedure Act: Waiver Because these amendments make minor corrections to an existing regulation pertaining to the acquisition of goods and services by contract, the NRC has determined pursuant to 5 u.s.c.

553(a) (2), that the rulemaking provisions of the Administrative Procedure Act do not apply.

Environmental Impact: Categorical Exclusion The NRC has determined that this rule is the type of action

- described in the categorical exclusion set forth in 10 CFR 51.22(c) (5) and (6). Therefore, neither an environmental impact

• statement nor an environmental assessment has been prepared for this final rule.

Paperwork Reduction Act statement This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C.3501 et seq.). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0169.

2

Regulatory Analysis This final rule is administrative in that it corrects and conforms the text of an existing regulation. These amendments will not have a significant impact. Therefore, the NRC has not prepared a regulatory analysis for this final rule. The

______ r~gu atory analysis for_the_NRCAR was contained in_the _final rule published December 23, 1992 (57 FR 61152).

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule, and therefore, that a backfit

• analysis is not required for this final rule because these amendments do not .involve any provision which would impose backfits as defined in 10 CFR 50.109(a) (1).

List of Subjects 48 CFR Part 2017 - Government procurement, Nuclear Regl_llatory Commission Acquisition Regulation.

48 CFR Part 2052 - Government procurement, Nuclear

• Regulatory Commission Acquisition Regulation, Reporting and recordkeeping requirements.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 u.s.c. 552 and 553, the NRC is adopting the following corrective amendments to 48 CFR Parts 2017 and 2052.

PART 2017 - SPECIAL CONTRACTING METHODS 3

1. The authority citation for Part 2017 continues to read as follows:

Authority: 42 u.s.c. 2201; 42 u.s.c. 5841; and 41 u.s.c.

418 (b) .

2017.204 [Amended]

2. In 2017.204(b), the word "one" is revised to read "ft ve. u-PART 2052 - SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. The authority citation for Part 2052 continues to read as follows:

Authority: 42 u.s.c. 2201; 42 U.S.C. 5841; and 41 U.S.C.

• 418 (b) .

4.

follows:

In 2052.204-70 paragraph (d) is revised to read as 2052.204-70 Security.

(d) Regulations. The contractor agrees to conform to all security regulations and requirements of the Commission which are subject to change as directed by the NRC Division of Security and the Contracting Officer. These changes will be under the authority of the changes clause.

1993.

Dated at Rockville, Maryland, this 3- (:! day of 4<..}C)u.

f ti' Secretary

~:~:::::::~

k, )

he Commission.

4

DOCKET NUMBER P:10PosEo RULE PR itc 20 (5LJ F-Rl-/0~2-Q) OOCKEiED

[759 0-ij~NilJ>]

NUCLEAR REGULATORY COMMISSION

• 93 A R 27 A11 :l 4 48 CFR Parts 2012, 2015, 2030, AND 2052

,..r .

RIN 3150 - ACOl , '

Nuclear Regulatory Commission Acquisition Regulation; Minor Amendments AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule: Minor corrective and conforming amendments.

SUMMARY

This final rule makes a number of minor corrective and conforming amendments to the NRC's acquisition regulation. The

• final rule is necessary to correct recently discovered errors in the text of the acquisition regulation and to conform portions of regulatory text to recodified regulations of the Cost Accounting Standards Board.

EFFECTIVE DATE: (Upon publication).

FOR FURTHER INFORMATION CONTACT: Edward L. Halman, Director, Division of Contracts and Property Management, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 492-

• 4347.

SUPPLEMENTARY INFORMATION:

On December 23, 1992 (57 FR 61152), the Nuclear Regulatory Commission (NRC) published a final rule which expanded the existing Nuclear Regulatory Commission Acquisition Regulation (NRCAR) to implement and supplement the government-wide Federal Acquisition Regulation. The final rule established requirements for the procurement of goods and services within the NRC that were necessary to satisfy the particular needs of the

This document makes minor corrections and conforming changes to the NRCAR. The necessary changes are as follows:

Section 2012.104-70 is amended to correct a typographical error.

Section 2015.407-70 is revised to correct and expand the references to appropriate contract clauses.

Section 2030.201-5 is revised to reflect the authorization contained in the recodified regulations of the Cost Accounting

- Standards Board.

In Part 2052, a number of contract clauses are redesignated

• to correct inconsistencies in the contract provisions numbering system. Clauses are added concerning "Project Officer Authority

- Alternate 2" and "Travel Reimbursement - Alternate 1. 11 The clause concerning "Proposal Presentation and Format - Alternate 1 (language for negotiated task order contracts)" is revised to correct references to other contract provisions.

Administrative Procedure Act: Waiver Because these amendments make minor corrective and

• conforming changes to an existing regulation pertaining to the acquisition of goods and services by contract, the NRC has determined pursuant to 5 u.s.c. §553(a) (2), that the rulemaking provisions of the Administrative Procedure Act do not apply.

Environmental Impact: Categorical Exclusion The NRC has determined that this rule is the type of action described in the categorical exclusion set forth in 10 CFR 51.22(c) (5) and (6). Therefore, neither an environmental impact 2

statement nor an environmental assessment has been prepared for this final rule.

Paperwork Reduction Act Statement This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 u.s.C.3501 et seq.). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0169.

- Regulatory Analysis This final rule is administrative in that it corrects and

• conforms the text of an existing regulation.

will not have a significant impact.

These amendments Therefore, the NRC has not prepared a regulatory analysis for this final rule. The regulatory*analysis for the NRCAR was contained in the final rule published December 23, 1992 (57 FR 61152).

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule, and therefore, that a backfit

• analysis is not required for this final rule because these amendments do not involve any provision which would impose backfits as defined in 10 CFR S0.1~9(a)(l).

List of Subjects 48 CFR Part 2012 - Government procurement, Nuclear Regulatory Commission Acquisition Regulation.

3

48 CFR Part 2015 - Government procurement, Nuclear Regulatory Commission Acquisition Regulation, Reporting and recordkeeping requirements.

48 CFR Part 2030 - Government procurement, Nuclear Regulatory Commission Acquisition Regulation.

48 CFR Part 2052 - Government procurement, Nuclear Regulatory Commission Acquisition Regulation, Reporting and recordkeeping requirements.

- For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the

• Energy reorganization Act of 1974, as amended, and 5 u.s.c.

and 553, the NRC is adopting the following corrective and 552 conforming amendments to 48 CFR Parts 2012, 2015. 2030, and 2052.

PART 2012 - CONTRACT DELIVERY AND PERFORMANCE

1. The authority citation for Part 2012 continues to read as follows:

Authority: 42 u.s.c. 2201; 42 u.s.c. 5841; and 41 o.s.c.

418(b) *

• 2012.104-70 [Amended)

"or."

2. In 2012.104-?0(b) (1), the word "and" is revised to read PART 2015 - CONTRACTING BY NEGOTIATION

3. The authority citation for Part 2015 continues to read as follows:

Authority: 42 o.s.c. 2201; 42 u.s.c. 5841; and 41 u.s.c.

418(b).

4

4. Section 2015.407-70 is revised to read as follows:

2015.407-70 Solicitation provisions and contract clauses.

{a) The contracting officer shall insert in Requests for Proposals {RFPs) the provisions at:

(1) Section 2052.215-70, Key Personnel; (2) {i) Section 2052.215-71, Project Officer Authority (for solicitations for cost-reimbursement, cost-plus-

)

fixed-fee, cost-plus-award-fee, cost-sharing, labor-hour or time-

- and-materials, including task order contracts);

(ii) Section 2052.215-72, Project Officer

• Authority - Alternate 1 (for solicitations for issuance of delivery orders for specific products/services).

{iii) Section 2052.215-73, Project Officer Authority - Alternate 2 with paragraph (b) (1) deleted and the remainder of the clause renumbered (for solicitations for firm fixed price contracts);

- (iv) The provision, 2052.215-71, and Alternates 1 and 2 are intended for experienced, trained project officers,

• and may be altered to delete duties where appropriate.

(3)

(4)

Section 2052.215-74, Timely Receipt of Proposals; Section 2052.215-75, Award Notification and commitment of Public Funds; and (5) Section 2052.215-76, Disposition of Proposals.

(b) The contracting officer shall insert in all solicitations for negotiated procurements for cost type contracts that do not provide for task orders or delivery orders, the provision at 5

2052.215-77, Proposal Presentation and Format, except that:

(1) For-all solicitations for negotiated task order contracts, paragraphs (e) (4) (xi) and (xii) must be deleted (and the remainder renumbered), and the paragraph found at 2052.215-78

- Alternate 1, must be substituted for paragraph (d) (2).

(2) 2052.215 Alternate 2. For all negotiated procurements for a fixed-price, labor-hour, or time-and-materials contract, paragraph (d) (2} shall be deleted from the' provision 2052.215-77.

These provisions must be tailored to assure that all

- sections, but in particular paragraph (e), Tech~ical and

• Management Proposal, reflect a one-to-one relationship to the evaluation criteria.

(c) The contracting officer shall insert the provision at 2052.215-80, Preproposal Conference, in RFPs where there will be a preproposal conference. This provision may be altered to fit the circumstances of the requirement.

(d) The contracting officer shall insert the clauses at

- 2052.215-81, Travel Reimbursement, and 2052-215-83, Travel Approvals, in RFPs where there will be travel. For contracts where there is no ceiling amount on domestic travel, the provision found at 2052.215-82, Travel Reimbursement - Alternate 1 shall be used with paragraph (a) deleted and th~ remainder of the clause renumbered.

5. Section 2015.670 is revised to read as follows:

2015.670 Contract provisions.

(a) The contracting officer shall include the provision found at 2052.215-84, Contract Award and Evaluation of Proposals, in all solicitations where technical is more important than cost:

6

(1) The contracting officer shall substitute the paragraph found at 2052.2~5-85 for paragraph (b) in all solicitations for negotiated competitive procurements where cost is more important than technical merit.

(2) The contracting officer shall substitute the paragraph found at 2052.215-86 for paragraph (b) in all solicitations for negotiated competitive procurements where cost and technical merit are of equal significance.

- (b) The contracting officer may make appropriate changes to the provision to accurately reflect other evaluation procedures,

• such as evaluation of proposals against mandatory criteria and benchmarking criteria for ADP procurements.

PART 2030 - COST ACCOUNTING STANDARDS

6. The authority citation for Part 2030 continues to read as follows:

Authority: 42 u.s.c. 2201; 42 u.s.c. 5841; and 41 u.s.c.

418(b).

7. Section 2030.201-5 is revised to read as follows:

• 2030.201-5 Waiver.

Requests ~o waive Cost Accounting Standards (CAS) requirements must be submitted to the Chairman, CAS Board, by the Procurement Executive. The requests for waivers must be forwarded through the Head of the Contracting Activity with supporting documentation and rationale.

7

PART 2052 - SOLICITATION PROVISIONS AND CONTRACT CLAUSES

8. The authority citation for Part 2052 continues to read as follows:

Authority: 42 u.s.c. 2201; 42 u.s.c. 5841; and 41 u.s.c.

418(b).

2052.212-72 [Amended]

9. In 2052.212-72, in the first paragraph under the "Financial Status Report" heading, the phrase "Financial Identification Number (FIN)" is revised to read "Job Code."

2052.215 2052.215-84 [Redesignated]

10. Sections 2052.215-81 through 2052.215-84 are redesignated as 2052.215-83 through 2052.215-86 respectively.

2052.215 2052.215-80 [Redesignated]

11. Sections 2052.215-73 through 2052.215-80 are redesignated as 2052.215-74 through 2052.215-81 respectively.

12. A new 2052.215-73 is added to read as follows:

2052.215-73 Project officer authority - Alternate 2.

As prescribed at 2015.407-70(a) for solicitations for fixed price contracts, the clause at 2052.215 Alternate 1 must be used with paragraph (b) (1) deleted and the remainder of the clause renumbered.

2052.215-77 [Amended]

13. In 2052.215-77, paragraph (d) (1) under the heading "Proposal Presentation and Format" the word "Contracting" is revised to read "Contract."

14. Section 2052.215-78 is revised to read as follows:

8

2052.215-78 Proposal presentation and format - Alternate 1 (language for negotiated task order contracts).

As prescribed at 2015.407-70(b) (1), paragraphs e(4) (xi) and 2(xii) must be deleted (and the remainder renumbered) and the following paragraph must be substituted for (d)(2) in provision 2052.215-77.

(d) Cost proposal.

(2) The offeror shall provide a cost proposal based on the estimated level of effort. The total estimated cost proposed by the offerer is used for evaluation purposes only. Any resultant contract, except a requirements contract, contains an overall cost ceiling whereby individual task orders may be issued. The cost and fee, if any, for each task order is individually negotiated and also contains a cost ceiling.

(End of Provision)

15. A new 2052.215-82 is added to read as follows:

2052.215-82 Travel reimbursement - Alternate 1.

16. Section 2052.215-83 is revised as follows:

2052.215-83 Travel approvals.

As prescribed in 2015.407-70(d), insert the following clause in applicable solicitations and contracts:

Travel Approvals (a) All domestic travel requires the prior approval of the project officer.

(b) All foreign travel must be approved in advance by the NRC on NRC Form 445 and must be in compliance with FAR 52.247-63, Preference for U.S. Flag Air Carriers. Foreign travel approval must be communicated in writing through the contracting officer.

(End of Clause) 9

As prescribed at 2015.407-70{d) for contracts where there is no ceiling amount on domestic travel, delete paragraph (a) of 2052.215-81 and renumber the remainder of the clause.

(End of Provision)

~

Dated at Rockville, Mar land, this4iA,- day of April , 1993.

For ____:::::::_ :=~~:::::n.

Chi k, of the Commission.

10

OOCKLi EO J US NHC

• 92 OEC 10 P 1 :44

[7590-01]

NUCLEAR REGULATORY COMMISSION 48 CFR Chapter 20 RIN 3150-ACOl Acquisition Regulation (NRCAR)

AGENCY: Nuclear Regulatory Comnission.

- ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Con111ission (NRC) is revising its Nuclear Regulatory Commission Acquisition Regulatioh (NRCAR) to establish requirements for the procurement of goods and services within the NRC to satisfy the particular needs of the agency. This rule expands the existing NRCAR to implement and supplement the government-wide Federal Acquisition Regulation

- (FAR). This rule applies to all contracts, including small purchases, where specified, awarded on or after the effective date, and to modifications awarded on or after the effective date which require a justification for other than full and open competition.

EFFECTIVE DATE: The final rule wil l become effective 30 days after the date of publication.

FOR FURTHER INFORMATION CONTACT: Edward L. Halman, Director, Division of Contracts and Property Management, Nuclear Regulatory Co11111ission, DC 20555. Telephone: (301) 492-4347.

1

SUPPLEMENTARY INFORMATION: l

Background

The policies and procedures of the Federal Government regarding the procurement of supplies and services have been developed in a largely independent fashion. Many statutes bearing on Federal contracting have been directed toward specific agencies. Federal agencies traditionally have developed their own contracting procedures with limited attention to uniformity among agencies. The result was a system of procurement policies that varied fr om agency to agency, causing confusion within the contracting -

community. As long ago as 1972, the Co11111ission on Government Procurement recommended that there be a standard Government-wide procurement regulatory system. The Office of Federal Procurement Policy, created in 1974, has worked with the agencies and the public to create a uniform procurement regulation known as the Federal Acquisition Regulation (FAR).

The FAR has been promulgated as the uniform, simplified acquisition regulation called for by Executive Order 12352, Federal Procurement Reforms.

The FAR, which was issued by the General Services Administration, Department of Defense, and National Aeronautics and Space Administration, superseded the Defense Acquisition Regulation (DAR), the Federal Procurement Regulation (FPR), and the National Aeronautics and Space Administration Procurement Regulation (NASAPR) on April 1, 1984. The FAR was published in the Federal Register on September 19, 1983 (48 FR 42102) with an effective date of April 1, 1984. The FAR is codified as Chapter 1 of Title 48 of the Code of Federal Regulations.

2

Because of differing statutory author;ties among Federal agencies, the FAR authorizes agencies to issue regulations to implement FAR policies and procedures internally and to include additional policies and procedures,

,solicitation provisions or contract clauses to satisfy the specific needs of the agency. The regulations being published today represent the NRC's necessary implementation and supplementation of the FAR.

Debarment, Suspension and Ineligibility A single provision of the NRCAR was published as a final rule July 1, 1992 (57 FR 29220). That provision only contained agency debarment, suspension and ineligibility procedures. This rule publishes the NRCAR in its entirety, including the debarment procedures.

Organizational.Conflicts of Interest The prop~sed rule, which was published for public coR111ents on October 2, 1989 {54 FR 40420), contained organizational conflicts of interest {COi) provisions which prohibited.contractors from doing work for others that fell within the broad-scope of the underlying contract.

On August i's, 1991, the CoR111issfon approved a revision to its proposed NRCAR modifying the Agency's COi policy. The thrust of this revision limited COi restrictions to the relatively narrow scope and shorter duration of individual task 'orders rather than to the entire scope and term of the basic contract. While the NRC believed that the revised policy would increase

, ,competition for NRC technical *assi.stance and research work, additional 3

restrictions were added to (a) avoid the potential for unfair competitive advantage that could result if NRC contractors were permitted to market their services while working for NRC at a licensee site, and {b) ensure that NRC contractors do not have divided financial interests while working at a licensee site.

Two of NRC's major technical assistance and research contractors commented that the COI provision, approved on August 15, 1991, was overly restrictive and would impede rather than enhance NRC's ability to increase competition in the technical assistance marketplace. Therefore, the NRC held a public meeting on March 26, 1992, in order that all interested parties could provide further conrnents on the proposed revision of the Connnission's COi policy or provide alternatives that would achieve an equivalent level of* COi protection (57 FR 4652; February 6, 1992).

The nature of the corrments received in connection with the March 26, 1992, meeting varied with respect to how the co1T111enters viewed the restrictiveness reflected in the proposed revision to the COi policy. While a number of co1T111enters found the existing COi language adequate, others stated e the policy was overly restrictive and lacking in flexibility.

The Co1T111ission has considered the co1T111ents concerning the substantial restrictions against performing any work at an NRC licensee site where the contractor performs on-site work for NRC, coupled with the lack of flexibility in applying this restriction, and agrees that exceptions to the blanket restriction may be permitted in appropriate cases. Thus, the Co1T111ission has modified the restriction to authorize the NRC contractor to perform work for NRC licensees at the site of work performed for NRC if:

4

(a) The work is not in the same technical area as the work performed for NRC; and (b) The contracting officer determines that the specific situation will not pose a potential for technical bias or unfair competitive advantage.

In making the determination, the contracting officer will consider factors such as: the relative value of the work for NRC; whether there has been an on-going contractual or financial relationship between the NRC contractor and the NRC licensee that predates the NRC contract; whether the NRC contractor gained information about the availability of work for the NRC licensee as a result of contractor access to the site under the NRC contract; the relative*amount of time spent at the site by the NRC contractor's personnel; whether the work for NRC at the site is specific or is a part of a generic task or contract; and any other factors that may indicate financial ties or competitive advantage.

Another section of the proposed COi policy on which the Commission received objections related to the requirement to disclose all other work proposed to be done by the contractor for others that may give rise to a COi situation. The specific objection related to the requirement that the NRC be informed of the work at least 15 days in advance of undertaking the work.

Some companies complained that it is difficult for diversified firms to ensure that the division performing the work for NRC would be aware of the wor'k by other divisions 15 days in advance in all cases. Giving due consideration to these connents, the Co1T1Dission has modified the provision to require.that the contractor use due diligence to identify and obtain information about work for others that would fall within the scope of the NRC contract, and report the information to NRC 15 days in advance of undertaking the work. The Commission has also added a corresponding provision which indicates that the contracting officer may approve reporting not in accordance with this 5

provision in cases where the contractor justifies the deviation on the grounds

• of urgency or by showing that despite the exercise of due diligence, the contractor's officials responsible for the NRC contract were not aware of the work for others falling within this provision.

The above revision to the Comission's COi policy was published as a proposed rule August 18, 1992 (57 FR 37140). The final draft rule which was not changed from the proposed rule was approved by the Comission November 2, 1992. This final rule incorporates the November 2, 1992, COi language.

Administrative Procedure Act Section 553 of the Administrative Procedure Act (5 U.S.C. 551 et seq) exempts rules relating to public contracts from the prior notice and coment procedure normally required for informal rulemaking. However, the Office of Federal Procurement Policy (OFPP), Office of Management and Budget, has established procedures to be used by all Federal agencies in the promulgation of procurement regulations. OFPP Policy Letter 83-2 states that an agency must provide an opportunity for public comment before adopting procurement 4t regulation if the regulation is "significant.*

This regulation is issued principally to create one body of guidance incorporating previously cleared procedures, to exercise delegations established by the FAR and to adopt other procedures that will not have a cost or administrative impact on contractors. The NRC issued its acquisition regulation proposed rule for public coment on October 2, 1989 (54 FR 40420).

The section on organizational conflicts of interest was issued for public comment on August 18, 1992 (57 FR 37140).

6

Public Coments A proposed rule was published in the Federal Register on October 2, 1989 (54 FR 40420). Three organizations comented and all corrments were considered in the development of this final rule. The conunents and responses are sumnarized below, in the order of the NRCAR text with the exception of organizational conflicts of interest which is contained in a separate subsection.

One convnenter suggested that NRCAR 2001.402, concerning policies for deviations from the FAR and the NRCAR, is instructional language that should be excluded from the NRCAR and issued through an NRC internal issuance. This policy, as much as any other internal concurrence or appr~val, affects the flow of the procurement process. Just as the FAR has a parallel Subpart 1.4, and numerous other specified internal concurrences and approvals, this section is an important part of the NRCAR. In addition, the place to specify the policies for deviating from any requirement is in the policy itself. This section remains in the NRCAR.

One conunenter suggested that NRCAR 2001.602-3, Ratification of Unauthorized C0111111tments, is unnecessary. However, this provision specifies which officials within NRC may approve ratifications. It also specifies the information which must be provided to seek approval of a ratification. The contracting comunity can be profoundly affected by these policies.

Therefore, this section remains in the NRCAR.

One comnenter asked if NRCAR 2009.l, Responsible Prospective Contractors, provides special treatment to a firm predominantly staffed by former NRC employees, none of whom were employed by the NRC within the last 7

two years. It does not. NRCAR 2009.1 is designed to prevent preferential treatment under the nrevolving door* concept. To extend this restriction beyond two years is not practical in terms of recordkeeping and would be unduly restrictive for individuals whose firms have either survived or formed after a reasonable hiatus from government employment.

One commenter suggested that the NRCAR requirement found at §2009.405-2(a) for a certification of debarment status is inconsistent with FAR clause 52.209.5. FAR clause 52.209-5 was added to the FAR in 1989m Therefore, the NRCAR clause is no longer necessary and has been removed from the final rule.

One corrmenter suggested that NRCAR 2009.570-3(c) contains instructional

\

language that should be excluded from the NRCAR and promulgated through.one of the NRC internal issuances. This section contains examples of conflicts for the information of potential contractors, as well as NRC staff and therefore, belongs in the survey. These examples are formatted to be similar to those in FAR 9.508, Examples, but the examples are specific to the NRC. The guidance provided after each example is used to illustrate, for potential contractors, as well as NRC staff, the possible resolution of each situation. Therefore, e this section remains in the NRCAR.

One corrmenter questioned why §2014.201-670(b)(l) requires that past experience be described in all bids. This requirement has been edited to make it optional to fit circumstances. In some instances there is little or no procurement history available, the information requested concerning bidder qualifications and past experience enables the contacting officer to query the contacts identified and ascertain the offeror's performance record, integrity and business ethics.

a

One comnenter suggested moving paragraphs (d) and (e) of NRCAR 2052.214-72, Bid Evaluations, to a new section NRCAR 2014.404-2. This information on materially unbalanced bids and separate charges'remains in the provision because knowledge of this information can affect acceptance of the bid. These situations have occurred enough to merit including this information in the provision.

One convnenter expressed concern that the requirement for all proposed work to be considered as stated in NRCAR 2019.705-2, Determining the Need for a Subcontracting Plan, is inconsistent with FAR 19.705-2. Both texts state that all proposed contract actions must be considered when determining whether a subcontracting plan will be required. NRCAR 2019.705-2 is therefore an unnecessary duplication and has been removed from the final rule.

One co1TV11enter suggested that NRCAR 2019.705-4, Reviewing the Subcontracting Plan, duplicates the FAR (19.7). However, the NRCAR text provides additionally that subcontracting plans may be requested from all concerns in the competitive range, and clarifies conditions for acceptance of e mpster subcontracting plans. Because these provisions are not in the FAR, the NRCAR text is necessary to provide consist'ent treatment of proposers.

One coll11l8nter suggested that NRCAR 2020.102 duplicates the FAR (20.3).

However, the NRCAR text identifies the office that needs to be contacted for labor surplus area set-asides.

A co0111enter stated that the additional patent reporting requirements stated in NRCAR 2027.305-3 go beyond those required by the FAR. FAR 27.305-3(a) states that Agencies shall maintain appropriate procedures to protect the Government's interest and to check that subject inventories are identified and 9

disclosed. The reporting described in the NRCAR simply requires the contractor to certify that no patent or similar activities took place under the contract. This response is necessary to document that the contractor has not generated work to which the Federal government might have technical or economic rights. This requirement remains in the NRCAR.

One commenter suggested that NRCAR 2035.71, Broad Agency Announcements, duplicates FAR 35.016, Broad Agency Announcement. The duplicative text has been removed from the final rule.

One c0l11'11enter suggested that NRCAR 2042.803(b) be revised to state that audit cost issues will be resolved within 30 days when payment has not already been made to the contractor. The period in other situations would remain at six months. Contractors who have a need to receive payment due to a hardship currently can offer to help expedite the decision making process. Otherwise, six months is a reasonable period of time for receiving and reviewing audit reports, preparing positions and correspondence, and conducting negotiations.

Because the process is dependent on a number of inputs, including the contractor's, the language has been clarified to indicate that "within six e monthsM is a goal, not a deadline.

One corrmenter suggested that a standard for technical performance reports, 0MB Circular A-110, Attachment H, Monitoring and Reporting Program Performance, be used, and took exception to monthly reporting requirements in NRCAR clause 2052.212-71, Technical Progress Report. The requirements of 0MB Circular A-110 are applicable only to certain financial assistance awards; and are not appropriate for NRC contracts. However, the prescription for the NRCAR clause 2052.212-71 states that the contracting officer may alter the clause. This prescription has been strengthened to clarify that the frequency 10

of reporting is set at whatever frequency is meaningful and productive for

• each contract, considering the size and complexity of the particular project or program.

One comenter suggested that a standard for financial assistance, 0MB Circular A-110, Attachment 6.3.a, Financial Status Report, should be used to set the frequency of submission for Financial Status Reports under NRC contracts. The prescription for NRCAR 2052.212-72, Financial Status R~port, states that the contracting officer may alter the clause. This prescription has been strengthened to clarify that the frequency of reporting is set* at

• • whatever frequency is meaningful and productive for each contract.

Paragraph (a) of NRCAR provision 2052.214-72 is duplicative of FAR clause 52.214-4, False Statements, and has been removed from the final rule.

It was suggested by one comenter that NRCAR clause 2052.215-7~ be modified to require that cost related information on proposed subcontracts be included in the cost proposal, rather than the technical and management 4t proposal. This change has been made to the final rule.

The same c011111enter recomended that paragraph (e)(4) of NRCAR clause 2052.215-76 permit offerors to address the criteria enumerated under ..

paragraphs (e)(4)(1) through (e)(4)(xix) in other than the manner and sequence outlined. This would lead to inconsistences and difficulties in evaluating proposals. The comenter suggests that the proposed cha~ge would provide offerors-with flexibility to develop and structure their respective technical and management proposals in a format consistent with the stated evaluation criteria contained in an NRC solicitation. However, NRCAR 2015.407-70 (b)(2) already states that the provision must be tailored to assure that all sections 11

reflect the evaluation criteria. Therefore, no change has been made to the final rule.

One co11111enter suggested that the NRCAR clause 2052.215-76 should be expanded to include guidance for completion of the referenced Contractor Spending Plan. NRC's internal instructions provide only a suggested format which must, as the internal guidance states, be modified to meet each situation. The plan format developed for each specific proposed contract will appear in the Request for Proposal. While a Contractor Spending Plan is required for each applicable contract, the degree of flexibility permitted to the contracting officer is such that guidance for completion of each plan is not appropriate in this regulation.

this purpose.

No change is made to the provision for *-

Subpart 4.603, Solicitation Provision, which requires in provision

§52.204-4 that contractors provide Data Universal Numbering System (DUNS) information, was added to the FAR by Federal Acquisition Circular 84-50.

Therefore, NRCAR clause §2052.215-73, Data Universal Numbering System (DUNS),

is no longer required and has been removed from the final rule.

A corrment was made that Section 24, Pub. L. 100-679, exempts universities from having to comply with the Federal Travel Regulations if they follow their own travel policies in accordance with 0MB Circular A-21, Cost Principles for Educational Institutions. Therefore, the colTlll8nter stated, NRCAR clause 2052.215-79, (formerly §2052.215-75) Travel Reimbursement, should be modified in accordance with Part 31 of the FAR, and several 0MB Circulars, including A-21 (cost principles applicable to universities). A second corrmenter suggested that the clause be amended to be consistent with 12

FAR Part 31.205-46. NRCAR clause 2052.215-79 has been modified to make these clarifications. With these changes and the deletion of the word 11 domesticu from the first sentence of paragraph (c), paragraph (d) is no longer necessary and has been removed from the final rule.

One co1m1enter states that NRCAR clause 2052.215-80, Travel Approvals, is inconsistent with 0MB Circular A-21, when it says that aall domestic travel requires the prior approval of the project officer.u 0MB Circular A-21, Paragraph J.43.f of A-21, ,which is applicable to both direct and indirect costs, states that udomestic travel costs are allowable when permitted by the

• - sponsoring agreement.* Paragraph C.2 of A-21, Factors Affecting Allowability of Costs, states that in order for costs to be allowable, 11 they must conform to any limitations or exclusions set forth in these principles or in the sponsored agreement as to types or amounts of cost items.* The NRC has reserved to project officers, whose role includes monitoring work and associated costs, the ability to determine that domestic travel costs are necessary and prudent expenditures under the contract. No change to this provision has been made in the final rule.

One co1m1enter suggested that provision §2052.216-74, Task Order Procedures, should specify the task order proposal due date which has been set by mutual agreement. Task ordering contracts are negotiated for needs that are not clearly defined and which will need to be provided for quickly. The NRC contract administrator is responsible for setting a due date which reflects the agency's needs. If circumstances arise which prevent it from meeting the due date, the contractor should alert the contract administrator at the earliest opportunity. Therefore, no change is made to the provision of the final rule.

13

NRCAR clause 2052.235-70, Publication of Research Results, has been revised to clarify the requirements for the use of NRC Management Directives.

NRCAR clause 2052.245-71, Private Use of Contract Information and Data is deleted, since NRCAR clauses 2052.235-70 and 2052.235-71 provide adequate coverage.

Organizational Conflicts of Interest Comments on the COI language contained in the proposed rule published on October 2, 1989 (54 FR 40420):

One commenter suggested that NRCAR 2009.570-5 and the additions to the general organizational conflicts of interest clause set forth under contract clauses §§2052.209-76 and 2052.209-77 conflicts restrictions should only be applied to work which is the same or similar to NRC work. The commenter stated that this would protect the NRC against situations which may (a) result in providing an offeror or contractor with an unfair competitive advantage, or (b) impair the offeror's or contractor's objectivity in performing work for the NRC. Paragraph (2) of §2052.209-76, which would have required prior approval of the contracting officer to perform same or similar services; has been deleted and a new paragraph (§2052.209.73(c)(3)) has been added to the final rule. The paragraph prohibits the contractor from performing any of the following activities for a period of one year upon completion of work at a licensee or applicant site: 1) soliciting work at that site; 2) performing work at that site; and 3) performing work in the same technical area for the licensee or applicant organization regardless of location. While the deletion may lead to some situations whereby NRC will not be able to issue some task orders to a contractor because of the contractor's other work for licensees 14

started after the beginn1ng of the. NRC contract, the NRC bel1eves that other alternatives exist to get the work accomplished. The new paragraph will minimize situations of unfair competitive advantage. Language.has been added to NRCAR 2052.209-73(d)(3) to limit denial of approval under task order

'contracts to situations where NRC has issued or plans to issue a task order in the same technical area or at the site *

. A conmenter suggested that paragraph (d), Disclosure After Award, be deleted in its* entirety from NRCAR clause 2052.209-74 (currently §2052.209-73(d)(3)). The commenter states that NRCAR 2052.209-74(c) already requires contractors to make irrmediate and full di~closure. However, paragraph (d)(l) also requires the contractor to provide a negative response. Paragraph (d)(3) additionally requires that any d1sclosure must include a description of' action taken to avoid or mitigate such conflicts.

• NRCAR 2052.209-77 (currently

§2052.209.73(d)) requires that additional text be added to paragraph (d)(3),

to clarify the applicability to task orders. Therefore, paragraph (d) is not deleted .

• - One conmenter proposed that NRCAR clause 2052.209-77 (currently

§2052.209.73(d}{3, Contractor Organizational Conflicts of Interest-Language for Task ~rder Contracts, imposes a burdensome information reporting requirement. Paragraph (d)(3) provides that the contractor will disclose all proposed new work of any type involving NRC licensees or applicants. The commenter suggested a change in the wording to "the same as, or substantially similar to.'1 The conwnenter states correctly that this disclosure is necessary regardless of whether the proposed activities represent a ,,potential or actual conflict of interest with work being performed for the NRC. Additionally, circumstances other than the nature of a contractor's work, such as its 15

financial ties to *a licenesee could constitute a conflict of interest. Consequently, the disclosure requirements in paragraph (d)(3) remain unchanged in order that the Contracting Officer be provided with all requisite information in reaching a determination on organizational conflicts of interest. Therefore, no change is made to paragraph (d)(3) of this clause. One conunenter suggested that the contracting officer should be permitted to alter any conflict of interest clause. The clauses currently provide for basic policies to be applied in all or designated cases. Waivers or contracting officer decisions would provide flexibility in policy application. Open-ended altering of the basic policies would cause inequities and unnecessary delays to the procurement process. Therefore, the language is not changed for this purpose.* Coments on the COi language on the August 18, 1992 proposed rule (57 FR 37140): Only one conment was received. It endorsed the proposed rule changes. The co111Denter also provided certain conments on implementation of the rule change. The commenter indicated that implementation of the rule should permit an NRC contractor to discuss and reach agreement with the NRC contracting officer concerning the application of the proposed restrictions to certain types of work for others which the contractor may wish to solicit in advance of such solicitation. The rule proposed would permit such discussion provided that the-contractor can provide the contracting officer with the information, outlined above, to enable the contracting officer to determine that the situation will not pose a potential for technical bias or unfair competitive advantage. The coU111enter also indicated that it expected that, in instances in which the contractor expresses an interest in pursuing totally unrelated 16

activities, a determination permitting an exception to the work for others restrictions would be a timely and routine matter. Under the propose,d rule, exceptions from the work for others restrictions is a matter of discretion of the contracting officer, provided that contracting officer is able to reach a determination, on the basis of the factors discussed above, that the proposed work for others wi 11 not pose a potent1a l for techn1 ca 1 bias or unfair competitive advantage. The fact that the proposed work is totally unrelated to work being done for NRC would be an important factor in such a determinatfon, but the other factors outlined above would also need to be considered *

• - Other Revisions Since the proposed rule was published (October 2, 1989; 54 FR 40420) other amendments to proposed NRCAR text have been made as a result of internal review, changes in the Federal Acquisition Regulation, and coordination wi\h other agencies. The amended sections are:

Section 2015.604 which incorporates the Procurement Integrity Act'.

• Section 2015.610 which provides more specific guidance on the conduct of written and oral discussions.

Section 2015.611 which clarifies the Source Evaluation Panel's basic role as one of fact-finding and scoring. Section 2009.405-2, in which paragraph (a) has been deleted to be consistent with FAR 9.404. Section 2009.570-8 which exempts supply subcontractors and includes the

  $10,000 threshold requiring offerers and contractors to have subcontractor and
  ~onsultants submit a COI representation.

Section 2012.104-70 which gives the Contracting Officer more discretion in determining tne reporting schedule.

                    ,                     17

Section 2014.201-670(b)(l) which makes the inclusion of this section optional to fit the circumstances. Section 2052.214-72, in which paragraph (a) has been removed because it duplicated FAR 14.201-6(b)(4) and the clause cite has been changed to 11 FAR Subpart 1 11 Section 2019.705-2 which has been removed because it duplicated FAR. Section 2035.71 in which paragraphs (a) and (b)(4) and (2) have been removed because they duplicated FAR. Section 2052.215-73, which has been removed because it duplicated FAR 4.603. years. Section 2052.216-70, which segregates professional and clerical staff Section 2052.235-71 which has been removed because it was inconsistent with Executive Order No. 12591. Environmental Impact: Categorical Exclusion The NRC has determined that this regulation is the type of action described in the categorical exclusion set forth in 10 CFR 51.22(c)(5) and (6). Therefore, neither an environmental impact statement nor an environmental assessment is required for this rule. Paperwork Reduction Act Statement This final rule amends information collection requirements that are subject to the paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq). These requirements were approved by the Office of Management and Budget approval number 3150-0169. 18

The information collection requirements were submitted to 0MB at the proposed rule stage. At that time, 0MB denied approval. 0MB believed that rather than promulgating an NRC regulation, NRC should forward those provisions appropriate for inclusion in the FAR to the FAR Councils for consideration in accordance with FAR 1.304(c). 0MB further requested that publication of provisions relating to Conflict of Interest Policies Applicable to Consultants await implementation in the FAR. It is the NRC's position that because we are required by law to have separate procurement regulations implementing the FAR and these provisions only apply to the special circumstances of the NRC, the provisions of the NRCAR are not appropriate for

• inclusion in the FAR for government wide usage. In addition, in accordance with Sec. 8, Pub. L. 95-601, adding Sec. 170A to Pub. L. 83-703, 68 Stat. 919, as amended (42 U.S.C. 2210a), NRC's organizational conflicts of interest provision takes precedence over the FAR 9.5, Organizational and Consultant Conflicts of Interest. However, where non-conflicting guidance appears in FAR 9.5, the NRC.shall follow that guidance. With *these considerations, NRC therefore requested 0MB approval of the information collection requi.rements at the final rule stage and 0MB subsequently approved these requirements.

The public reporting burden for this collection of information- is estimated to average 10.7 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Information and Records Management Branch (MNBB-7?14), U.S. Nuclear Regulatory Connnission, Washington, DC 20555, and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-3019, (3150-0169), Office of Management and Budget, Washington, DC 20503. 19

Regulatory Analysis This final rule establishes the procedures and requirements necessary to implement and supplement the FAR. The final rule presents the regulations necessary to ensure that the regulations governing the procurement of goods and services within the NRC satisfy the particular needs and requirements of the NRC. This final rule constitutes an administrative action governing the procurement activities of the NRC. These provisions would not have an adverse economic impact on any contractor or potential contractor because they merely supplement the requirements applicable to the acquisition of goods and , services by the agency. By clearly and explicitly implementing the FAR and presenting those additional provisions necessary to reflect the needs of the NRC, the final rule would allow a contractor or potential contractor to understand more easily the regulations to be used in soliciting, evaluating and awarding contracts for the provision of goods and services. This constitutes the regulatory analysis for this final rule. Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. The final rule establishes the procedures and requirements necessary to implement and supplement the FAR which will govern the acquisition of goods and services by the NRC. To the extent that the final rule effects a small entity, it sets out provisions applicable to small business and to small, disadvantaged business concerns. 20

Backfit Analysis The NRC has determined that a backfit analysis is not required for this final .~ule because it does not involve any provision which would impose

    \

backfits as defined in 10 CFR Part 50.109(a)(l). List of Subjects in 48 CFR Chapter 20

• Government procurement, Nuclear Regulatory Commission Acquisition Regulations, Reporting and recordkeeping requirements.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy* Reorganization Act of 1974, a~ amended, 5 U.S.C. ~52 and 553, and FAR Subpart 1.3, the NRC is adding C~apter 20 to Title 48 of 'the Code of Federal Regulations .

• - 1. Chapter 20 to Title 48 is revised to read as follows:

CHAPTER 20 - NUCLEAR REGULATORY COMMISSION SUBCHAPTER A - GENERAL I: Part 2001 - NUCLEAR REGULATORY COMMISSION ACQUISITION REGULATION SYSTEM Subpart 2001.1 - Purpose, Authority, Issuance 21

                                        'I

2001.101 Purpose. 2001.102 Authority. 2001.1'03 App 1 i.cabi 1 i ty. 2001.104 Issuance. 2001.104-1 Publication and code arrangement. 2001.104-2 Arrangement of the regulations. 2001.104-3 Copies. 2001.105 Information collection requirements: 0MB approval. Subpart 2001.3 - Agency Acquisition Regulations Sec. 2001.301 Policy. 2001.303 Public participation. Subpart 2001.4 - Deviations from the FAR and the NRCAR ~ 2001.402 Pol icy. 2001.403 2001.404 Individual deviations. Class deviations. *- Subpart 2001.6 - Contracting Authority and Responsibilities Sec. 2001.600-70 Scope* of subpart. 2001.601 Genera 1 .

• 2001.602-3 Ratification of unauthorized commitments.

2001.603 Selection, *appointment, and termination of appointment. 22

AUTHORITY: *Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841; 41 U.S.C. 418{b). Subpart 2001.1 - Purpose, Authority, Issuance

   §2001.101     .Purpose.
          ~his subpart establishes Chapter 20, the Nuclear Regulatory Commission Acquisition Regulation (NRCAR), and provides for the codification and

• - publication of uniform policies and procedures for acquisitions by the NRC.

The NRCAR is not, by itself, a complete document. It must be used in conjunction with the Federal Acquisition Regulation (FAR) (48 CFR Chapter 1).

   §2001.102      Authority.

The NRCAR and the amendments to it are issu~d by the Director, Office of Administration, under a delegation from the Executive Director for Operations

*- in accordance with.the authority of the Atomic Energy Act of 1954, as amended (42. U.S.C. 161), the.Energy Reorganization Act of 1974 (42 U.S.C. 5841, 5872), ;he Federal Property and Administrative Services Act of 1949 (40 U.S.C.

486 (c) ) , as amended, FAR Subpart 1. 3, and other app 1i c_ab1e 1aw.

    §2001.103     Applicability.

The FAR and NRCAR apply to all NRC acquisitions of supplies and services which obligate ~ppropriated funds, except as exempted by Sections 31 and 161 of the Atomic Energy.Act of 1954 as amended, and Sect~on 205 of the Energy 23

Reorganization Act of 1974 as amended. For procurements made from nonappropriated funds, the Director, Division of Contracts and Property Management, shall determine the rules and procedures that apply. §2001.104 Issuance. §2001.104-1 Publication and code arrangement. (a) The NRCAR and its subsequent changes are: (1) (2) Published in the daily issue of the Federal Register; and Codified in the Code of Federal Regulations (CFR). (b) The NRCAR is issued as 48 CFR Chapter 20. §2001.104-2 Arrangement of the regulations. (a) General. Chapter 20 is divided into parts, subparts, sections subsections, paragraphs, and further subdivisions as necessary. (b) Numbering. The numbering system and part, subpart and section titles used in this Chapter 20 conform with those used in the FAR as follows: (1) Where Chapter 20 implements the FAR or supplements a parallel part, subpart, section, subsection, or paragraph of the FAR, that implementation or supplementation is numbered and captioned to the FAR part, subpart, section, or subsection being implemented or supplemented, except that 24

the implementation or supplementation is preceded with a 20 or 200 so that there will always be four numbers to the left of the decimal. For example, NRC's implementation of FAR 1.104-1 is shown as §2001.104-1 and the. NRC's implementation of FAR 24.1 is shown as §2024.1. (2) When NRC supplements material contained in the FAR, it is given a unique number containing the numerals "70" or higher. The rest of the number parallels the FAR part, subpart, section, subsection, or paragraph it is supplementing. For example, Section 170A of the Atomic Energy Act of 1954, as amended, requires a more comprehensive organizational conflict of interest review for NRC than is contemplated by FAR 9.5. This supplementary material is identified as §2009.570. (3) Where material in the FAR requires no implementation or supplementation, there is no corresponding numbering in the NRCAR. Therefore, there may be gaps in the NRCAR sequence of numbers where the FAR requires no further implementation .

• - (c) Citation. The NRCAR will be cited in accordance with Federal Register Standards approved for the FAR.

in the NRCAR is cited as §2001.104-2(c). Thus, this section when referred to When this section is referred to formally in official documents, such as legal briefs, it should be cited as "48 CFR 2001.104-2(c)." Any section of the NRCAR may be formally identified by the section number, e.g., "NRCAR 2001.104-2." In the NRCAR, any reference to the FAR will be indicated by "FAR" followed by the section number, for example FAR 1-104.

   §2001.104-3 Copies.

25

Copies of the NRCAR in Federal Register and CFR form may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402. §2001.105 Information collection requirements: 0MB approval. (a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (0MB) for approval as required by the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). (b) The information collection requirements contained in this part appear in §§2009.570-3(b)(l)&(2), 2009.570-3(c), 2009.570-3(c)(4)(ii), 2009.570-5(b), 2009.570-8, 2014.201-670, 2015.607, 2019.705-4(a), 2027.305-3(a), 2042.803(a)(b), 2052.204-70(b)(j)&(k) , 2052.204-71, 2052.204-72, 2052.209-71, 2052.209-72, 2052.209-73(d)(2)&(3)&(f) 2052.210-70(b), 2052.210-71, 2052.212-70, 2052.212-71, 2052.212-72, 2052.213-73, 2052.214-71, 2052.214-72(e), 2052.214-74, 2052.214-75, 2052.215-70, 2052.215-7l(f), 2052.215-76, 2052.215-77, 2052.216-74, 2052.235-70, 2052.235-71, and 2052.235-72. Subpart 2001.3 Agency Acquisition Regulations

§2001.301    Policy.

Policy, procedures, and guidance of an internal nature will be promulgated through internal NRC issuances such as Management Directives, or Division of Contracts and Property Management Instructions.

 §2001.303    Public participation.

26

 , . FAR 1.301 and Section 22 of the Office of Federal Procurement Policy Act, as amended (41 U.S.C. 418b) require rulemaking for substantive acquisition rules, but allow discretion in the matter for other than significant issues meeting the stated criteria.        Accordingly, the NRCAR has been promulgated and may be revised from time to time in accordance with FAR 1.301. This procedure for significant subject matter generally involves issuing a notice of proposed rulemaking, inviting public comment, review and analysis of coJ1V11ents received, and publi~ation of a final rule. The final rule includes a discussion of the public comments received and describes any changes made as a result of the comments.

Subpart 2001.4 - Deviations from the FAR and the NRCAR §2001.402 Policy. (a) Requests for authority to deviate from the provisions of the FAR or the NRCAR must be signed by the requesting office and submitted to the Di rector, Di vi s*i on of Contracts and Property Management, in writing as far in advance as possible. Each request for deviation must contain the following: (1) A statement of the deviation desired, including identification of the specific paragraph number(s) of the FAR or NRCAR from which a deviation is requested; (2) The reaso~ why the d~viation is considered necessary or would be in the best interest of the Government; (3) If applicable, the name of the contractor and identification of the contract affected; 27

(4) A statement as to whether the deviation has been requested previously and, if so, circumstances of the previous request (including the result of that request); (5) A description of the intended effect of the deviation; (6) A statement of the period of time for which the deviation is needed; and (7) Any pertinent background information which will contribute to a full understanding of the desired deviation. §2001.403 Individual deviations. In individual cases, deviations from either the FAR or the NRCAR will be authorized only when essential to effect a necessary acquisition or where special circumstances make the deviations clearly in the best interest of the Government. Individual deviations must be authorized in advance by the Director, Division of Contracts and Property Management. §2001.404 Class deviations. Where deviations from the FAR or NRCAR are considered necessary for classes of contracts, requests for authority to deviate must be submitted in writing to the Director, Division of Contracts and Property Management, who will consider the submission jointly with the Chairperson of the Civilian Agency Acquisition Council, as appropriate. 28

Subpart 2001.6 - Contracting Authority and Responsibilities §2001.600-70 Scope of subpart. This subpart deals with the placement of contracting authority and responsibility within the agency, the selection and designation of contracting officers, and the authority of contracting officers. §2001.601 General. (a) Contracting authority vests in the Chairman. The Chairman has delegated this authority to the Executive Director for Operations (EDO). The EDO has delegated this authority to the Director, Office of Administration (ADM). The Director, ADM, has delegated the authority to the Director, Division of Contracts and Property Management, who, in turn, makes contracting officer appointments within the Headquarters and the Regional Offices. All of the above delegations are formal written delegations containing dollar limitations .and conditions. (b) The Director, Division of Contracts and Property Management, establishes contracting policy throughout the agency; monitors the overall effectiveness and efficiency of the agency's contracting office; establishes controls to assure compliance with laws, regulations, and procedures; and delegates contracting officer authority. §2001.602-3 Ratification of unauthorized commitments. (a) The Government is not bound by agreements or contractual commitments made to prospective contractors by persons to whom contracting 29

authority has not been delegated. Any unauthorized co1T111itment may be in violation of the Federal Property and Administrative Services Act, other Federal laws, the FAR, the NRCAR, and good acquisition practice. Certain requirements of law and regulation necessary for the proper establishment of a contractual obligation may not be met under an unauthorized co11111itment; for example, the certification of the availability of funds, justification for other than full and open competition, competition of sources, determination of contractor responsibility, certification of current pricing data, price/cost analysis, administrative approvals, and negotiation of appropriate contract clauses. (b) The execution of otherwise proper contracts made by individuals without contracting authority, or by contracting officers in excess of the limits of their delegated authority, may later be ratified. To be effective, the ratification must be in the form of a written procurement document clearly stating that ratification of a previously unauthorized connnitment is intended. All ratifications must be approved by the Competition Advocate except that ratifications of procurement actions valued at $2,500 or less may be approved by the appropriate Regional Administrator or at a level above the appropriate Headquarters Contracting Officer. For any such action approved by the Regional Administrator, all other terms of Subpart 2001.6 are applicable, and a copy of all documentation must be submitted within two working days to the Competition Advocate. (c) Requests received by contracting officers for ratification of connnitments made by personnel lacking contracting authority must be processed as follows: 30

(1) The Designating Official, responsible for the office request, shall furnish the contracting officer all records and documents concerning the commitment and a complete written statement of facts, including, but not limited to: (i) A statement as to why the contracting office was not used including the name of the employee who made the conunitment; (ii) A statement as to why the proposed contractor was selected; (iii) A list of other sources considered;_ (iv) A description of work to be performed or products to be furnished; (v) The estimated or agreed upon contract price; (vi) A certification of the appropriated funds available; , (vii) A statement of whether the contractor has commenced performance; and (viii) A d~scription of how unauthorized co11111itments in similar circumstances will be avoided in the future. (2). The contracting officer shall review and forward the written statement of facts for a determination of approval to the* Competition Advocate DCPM, with any comments or information which should be considered in evaluating the request for ratification. 31

(3) The NRC legal advisor may be asked for an opinion, advice, or concurrence if there is concern regarding the propriety of the funding source, appropriateness of the expense, or when some other legal issue is involved. §2001.603 Selection, appointment, and termination of appointment. The Director, Division of Contracts and Property Management, is authorized by the Director, Office of Administration, to select and appoint contracting officers and to terminate their appointment as prescribed in FAR 1.603. Delegations of contracting officer authority are issued by memorandum which includes a clear statement of the delegated authority, including responsibilities and limitations in addition to the "Certificate of Appointment"; SF 1402. PART 2002 - DEFINITIONS Subpart 2002.1 - Definitions 2002.100 Definitions AUTHORITY: 42 U.'S.C. 2201; 42 U.S.C. 5841, and 41 U.S.C. 418(b). Subpart 2002.1 - Definitions §2002.100 Definitions. Agency means the Nuclear Regulatory Commission (NRC). 32

Agency Head or Head of the Agency means the NRC Executive Director for Operations, for the purposes specified in this regulation and the FAR. This delegation does not extend to internal NRC requirements such as clearance levels and Convnission papers which specify higher levels of authority. Commission means the NRC Commission of five members, or a quorum thereof, sitting as a body, as provided by Section 201 of the *Energy Reorganization Act of 1974 (42 U.S.C. 5841). Competition Advocate means the individual appointed as such by the Agency Head as required by Pub. *L. 98-369. The Director, *Division of Contracts and Property Management, has been appointed the Competition Advocate for the NRC. Day means calendar day unless otherwise specified. If the last day of the designated period of time is a Saturday, Sund_ay, or legal :holiday under Federal law, the period includes the next business day. Head of the Contracting Activity {HCA) means the Director, Division of [ I

• Contracts and Property Management.

Procurement Executive means the individual appointed as such by the Agency Head pursuant to Executive Order 12352. The Director, Office of Administration, has been appointed the NRC Procurement Executive. PART 2003 - IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST Subpart 2003.l*- Safeguards 33

2003.101 Standards of conduct. 2003.101-3 Agency regulations. Subpart 2003.2 - Contractor Gratuities to Government Personnel 2003.203 Reporting of suspected violation of the gratuities clause. AUTHOR1TY: 42 U.S.C. 2201; Sec. 201, 88 Stat. 1242, as amended; 42 U. S. C. 5841 ; and 41 U. S. C.. 418 ( b) . Subpart 2003.l - Safe~uards §2003.101 Standards of conduct. §2003.101-3 ,: Agency regulations. NRC standards of conduct for its employees are published in 10 CFR Part O. The standards of conduct include requirements for financial disclosure (§0.735-28}. Subpart 2003.2 - Contractor Gratuiti~s to Government Personnel

§2003.203     Reporting suspected violations of the gratuities clause.

34

      * (a)    S,uspected violations of the 11 Gratuities 11 clause, FAR 52.203.3, must be reported orally or in*writing directly to the NRC Office of the Inspector General.

• A report must include all facts and circumstance$ related to the* case. Refer to 10 CFR 0.735-42, Gifts, Entertainment and Favors, for an expl?nation regarding what is prohibited and what is permitted.

(b) When appropriate, discussions with the contracting officer or a higher procurement official, procuremeni policy staff, and the-procurement* . legal advisor prior to filing a report afe encouraged. PART 2004 - ADMINISTRATIVE*MATTERS I Subpart 2004.4 - Safeguarding Classified Information Within Industry

 §2004.404     Contract clauses.

I AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 48l(b). Subpart 2004.4 - Safeguarding Classified Information Within Industry

 §2004.404     Contract clauses.

The security clauses used in NRC contracts are found at §2052.204. They are: 35

(a) Security, §2052.204-70. This clause will be used in all contracts during the performance of which the contractor may have access to, or contact with classified information, including National Security information, restricted data, formerly restricted data, and other classified data. (b) Site Access Badge Requirements, §2052.204-71. This clause will be used in all contracts under which the contractor will require access to Government facilities. The clause may be altered to reflect any special conditions to be applied to foreign nationals. SUBCHAPTER B - COMPETITION AND ACQUISITION PLANNING Part 2005 - PUBLICIZING CONTRACT ACTIONS Subpart 2005.5 Paid Advertisements 2005.502 Authority. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 {41 U.S.C. 401 et seq.). Subpart 2005.5 Paid Advertisements

§2005.502 Authority.

36

Before placing paid advertisements in newspapers and trade journals to publicize contract actions, written authority must be obtained from the Director, Division of Contracts and Property Management, for Headquarters activities, or the Director, Division of Resource Management and Administration, within each regional office for a regional procurement. Part 2009 - CONTRACTOR QUALIFICATIONS Subpart 2009.1 - Responsible Prospective Contractors Sec. 2009.100 NRC policy. 2009.105-70 Contract provisions. Subpart 2009.4 - Debarment, Suspension, and Ineligibility 2009.403 Definitions. 2009.404 Consolidated lists of parties excluded from Federal -- 2009.405 procurement or non-procurement programs. Effect of listing. 2009.405-1 Continuation of current contracts. 2009.405-2 Restrictions on subcontracting. 2009.406 Debarment. 2009.406-3 Procedures. 2009.407 Suspension. 2009.407-3 Procedures. 2009-470 Appeals. Subpart 2009.5 Organizational Conflicts of Interest 37

2009.500 Scope of subpart. 2009.570 NRC organizational conflicts of interest. 2009.570-1 Scope of policy. 2009.570-2 Definitions. 2009.570-3 Criteria for recognizing contractor organizational conflicts of interest. 2009.570-4 Representation. 2009.570-5 Contract clauses. 2009.570-6 Evaluation, findings, and contract award. 2009.570-7 Conflicts identified after award. 2009.570-8 Subcontracts. 2009.570-9 Waiver. 2009.570-10 Remedies. AUTHORITY: 42 U.S.C. 2201; Sec 201, 88 Stat. 1242; as amended; 42 U.S.C. 5841; and 41 U.S.C 418(b). Subpart 2009.1 - Responsible prospective contractors. §2009.101- NRC policy. (a) It is NRC policy that contracts will not normally be placed on a noncompetitive basis with an individual who was employed by the NRC within two - years of the date of the request for procurement action. This policy also pertains to any firm in which a former NRC employee is a partner, principal officer, majority stockholder, or which is otherwise controlled or predominantly staffed by former NRC employees and for granting consent of subcontracts. An exception to this policy will be made if it is determined by the agency Procurement Executive to be in the best interest of the Government to do so. This restriction also applies to former NRC employees acting as a principal under a task order type contract or as a principal under a contract 38

awarded non~competitively under the S~all Business Administration's S{a) Program. This policy is also applied when reviewing.subcontracts for the w purpose of granting consent under NRC prime contracts. (b) The term NRC employee includes special Government employees I

• performing services for NRC as e;xperts, advisors, consul tan ts., or members of advisory committees, if--.

(1) The contract arises directly out of the individual's activity as a special employee; (2) The individual. is in a position to .influence th~ award of the contract; or (3) The Contracting Officer determines that another conflict of interest exists. (c) ; A justification explai~ing why it is in the best,interest of the Government to contract with an individual or f.irm described -in paragraph (a) of this s~ction on a noncompetitive b~sis may be approved by the Procurement Executive after consulting with the Executive Director for Operations or his designee. This is in addition to any justification and .approvals which may be required by the FAR for use of *other than full and open competition. (d) Nothing in this policy statement shall be construed as relieving

• former employees from o_bligations prescribed by law, such as 18 U.S.C., 207, .

Disqualification of Form~r Officers and Employees.

  §2009.105-70       Contract provisions

• 39,

The contracting officer shall insert the following provisions in all solicitations: (a) 2052.209-70, Qualifications of Contract Employees. (b) 2052.209-71, Current/Former Agency Employee Involvement. Subpart 2009.4 - Debarment, Suspension, and Ineligibility §2009.403 Definitions. As used in §2009.4: Debarring official means the Procurement Executive.

• Initiating official means the contracting officer, the Head of the Contracting Activity (HCA), the Procurement Executive, or the Inspector General.

Suspending official means the Procurement Executive.

§2009.404   Consolidated list of parties excluded from Federal procurement or -

non-procurement programs. The contracting officer responsible for the contract affected by the debarment or suspension shall perform the actions required by FAR 9.404(c)(l)- (3). 40

§2009.405 Effect of listing. Compelling reasons are considered to be present where failure to contract with the debarred or suspended contractor would seriously harm the agency's programs and prevent accomplishment of mission requirements. The Procurement Executive is authorized to make the determinations under FAR 9.405. Requests for these determinations must be submitted through the HCA to the Procurement Executive. §2009.405-1 Continuation.of current contracts. The HCA is authorized to make the determinations under FAR 9.405-1. §2009.405-2 Restrictions on subcontracting. The HCA is authorized to approve subcontracts with debarred or suspended subcontractors under FAR 9.405-2. §2009.406 Debarment.

§2009.406-3        Procedures.

{a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for debarment, the case must be referred through the HCA to the Procurement Executive immediately. The case must be accompanied by a complete statement of the facts (including a copy of any criminal indictments, if applicable) along with a reco11111endation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for 41

any other reason further investigation is considered necessary, the matter must first be referred to the HCA who will consult with the Office of the Inspector General to determine if further investigation is required prior to referring to the debarring official. (b) Decision-making process. If, after reviewing the recommendations and consulting with the Office of the General Counsel and, if appropriate, the Office of the Inspector General, the debarring official determines debarment is justified, the debarring official shall initiate the proposed debarment in accordance with FAR 9.406-3(c) and notify the HCA of the action taken. If the contractor fails to submit a timely written response within 30 days after receipt of the notice, the debarring official may notify the contractor in accordance with FAR 9.406-3(d) that the contractor is debarred. (c) Fact-finding proceedings. For actions listed under FAR 9.406-3(b)(2), the contractor shall be given the opportunity to appear at an informal hearing. The hearing should be held at a location and time that is convenient to the parties concerned, and no later than 30 days after the contractor received the notice, if at all possible. The contractor and any specifically named affiliates may be represented by counsel or any duly authorized representative. Witnesses may be called by either party. The proceedings must be conducted expeditiously and in such a manner that each party will have an opportunity to present all information considered pertinent to the proposed debarment.

§2009.407   Suspension.
§2009.407-3  Procedures.

42

(a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for suspension, the case must be referred through the HCA ~o the Procurement Executive immediately. The case must be accompanied by a complete statement of the facts along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for any other reason further investigation is considered necessary, the matter must first be referred to the HCA who will consult with the Office of the Inspector General to determine if further investigation is required prior to referring the matte~ to the suspending official. (b) Decision-making process. If, after _reviewing the recommendations and consulting with the Office of the General Counsel, and if appropriate, the Office of the Inspector General, the suspending official determines suspension is justified, the suspending official shall initiate the proposed suspension in accordance with FAR 9.407-3(b)(2) .. The contractor shall be given the opportunity tQ appear at an informal hearing, similar in nature to the hearing for debarments as discussed in FAR 9.406-3(b)(2). If the contractor fails to submit a timely written response within 30 days iafter receipt of the notice, the suspending official may notify the contractor in accordance with 9.407-3(d) that the contractor is suspended.

§2009.470   Appeals.

A debarred or suspended contractor may appeal the debarrini/suspending official's* decision by mailing or otherwise furnishing a written notice within 90 days from the date of the decision to the Executive Director for 43

Operations. A copy of the notice of appeal must be furnished to the debarring/suspending official from whose decision the appeal is taken. Subpart 2009.5 Organizational Conflicts of Interest §2009.500 Scope of subpart. In accordance with 42 U.S.C. 2210a., NRC acquisitions are processed in accordance with §2009.570, which takes precedence over FAR 9.5 with respect to organizational conflicts of interest. Where non-conflicting guidance appears in FAR 9.5, that guidance must be followed. §2009.570 NRC organizational conflicts of interest. §2009.570-1 Scope of policy. (a) It is the policy of NRC to avoid, eliminate, or neutralize contractor organizational conflicts of interest. The NRC achieves this objective by requiring all prospective contractors to submit information describing relationships, if any, with organizations or persons (including those regulated by the NRC) which may give rise to actual or potential conflicts of interest in the event of contract award. (b) Contractor conflict of interest determinations cannot be made automatically or routinely. The application of sound judgment on virtually a case-by-case basis is necessary if the policy is to be applied to satisfy the overall public interest. It is not possible to prescribe in advance a specific method or set of criteria which would serve to identify and resolve 44

all of the contractor conflict of interest situations which might arise. However, examples are provided in these regulations to guide application of this policy guidance. The ultimate test is as follows: Might the contractor, if awarded the contract, be placed in a position where its judgment may be biased, or where it may have an unfair competitive advantage? (c)

• The conflict of interest rule contained in this subpart* applie's to contractors and offerors only. Individuals or firms who have other relationships with the NRC (e.g., parties to a licensing proceeding) are not covered by 'this regulation. This rule does not apply to ~he acquisition of consulting services through the personnel appointment process, NRC agreements with other government agencies, international organizations, or state, local, or foreign governments. Separate procedures for avoiding conflicts of interest will be employed in these agreements, as appropriate.

§2009.570-2        Definitions.

As used in §2009.570: Affiliates means business concerns which are affiliates of each other when either directly or indirectly one concern or individual controls or has the power to control another, or when a thi~d party controls or has the power to control both. Contract means any contractual agreement*or other arrangement with the NRC except as provid~d in §200~.570-l(c). 45

Contractor means any person, firm, unincorporated association, joint venture, co-sponsor, partnership, corporation, affiliates thereof, or their successors in interest, including their chief executives, directors, key personnel (identified in the contract), proposed consultants or subcontractors, which. are a party to a contract with the NRC. Evaluation activities means any effort involving the appraisal of.a technology, process, product, or policy. Offerer or prospective contractor means any person, firm, unincorporated association, joint venture, co-sponsor, partnership, corporation, or their affiliates or successdrs in interest, including their chief executives, directors, key personnel, proposed consultants, or subcontractors, submitting a bid or proposal, solicited or unsolicited, to the NRC to obtain a contract. Organizational conflicts of interest means that a relationship exists whereby a contractor or prospective contractor has present or planned interests related to the work to be performed under an NRC contract which: (1) May diminish its capacity to give impartial, technically sound, objective assistance and advice, or may otherwise result in a biased work product; or* (2) ,May result in its being given an unfair competitive advantage. Potential conflict of interest means th~t a factual situation exists that suggests that an actual conflict of interest may arise from award of a proposed contract. The term potential conflict of interest is used to signify those situations that--: 46

(l} Merit investigation before contract award to ascertain whether award would give rise to an actual conflict; or (2} Must be r~ported to the contracting officer for investigation if they arise during contract performance. Research means any scientific or technical work involving theoretical analysis, exploration, or experimentation. Subcontractor means any subcontractor of any tier who performs work

• under a contract with the NRC except subcontracts for supplies and subcontracts in amounts not exceeding the small purchase threshola.

Technical consulting and management support services means internal assistance to a component of the NRC in the formulation or administration of its programs, projects, or policies which normally require that the contractor be given access to proprietary information or to information that has not been made. available to the public. These services typically include assistance in the preparation of program plans, preliminary designs, specifications, or statements of work.

§2009.570-3     Criteria for *recognizing contractor organizational conflicts of interest.

(a} Genera]. (I) Two questions will be asked in determining whether actual or potential organizational conflicts of interest exist: 47

(i) Are there conflicting roles which might bias an offerer's or contractor's judgment in relation to its work for the NRC? (11) May the offeror or contractor be given an unfair competitive advantage based on the perfonnance of the contract? (2) NRC's ultimate detennination that organizational conflicts of interest exist will be made in light of common senSl! and good business judgment based upon the relevant facts. While it is difficult to identify and to prescribe in advance a specific method for avoiding all of the various situations or relationships that might involve potential organizational conflicts of interest, NRC personnel will pay particular attention to proposed contractual requirements that call for the rendering of advic~, consultation or evaluation activities, or similar activities that directly lay the* groundwork for the NRC's decisions on regulatory activities, future procurements, and research programs. Any work performed at an applicant or licensee site will also be closely scrutinized by the NRC staff. (b) Situations or relationships. The following situations or relationships may give rise to organizational conflicts of interest: (1) The offerer or contractor sha~l disclose infonnation, that may give rise to organizational conflicts of interest under the following circumstances. The information may include the scope of work or specification for the requirement, being performed, the period of performance, and the name and telephone number for a point of contact at the organization knowledgeable about the convnercial contract. 48

(i) Where the offeror or contractor provides advice and ~ecorrmendation to the NRC in the same technical area where it is also providing consulting assistance to any organization regulated by the NRC. (ii) Where the offeror or contractor provides advice to the NRC on the same or similar matter on which it is also providing assistance to any organization regulated by the NRC. (iii) Where the offeror or contractor evaluates its own products or services, or has been substantially involved in the development or marketing of the products or services of another entity. (iv) Where the award of a contract would result in placing the offerer or contractor in a conflicting role in which its judgment may be biased in relation to its work for the NRC, or would result "in an unfair competitive advantage for the offeror or contractor. (v) Where the offerer or contractor solicits or performs work at an applicant or licensee site while performing work in the same technical area for the NRC at the*same site. (2) The contracting officer may request specific information from an offerer or contractor or may require special contract clauses such ~s provided in §2009.570-S(b) in the following circumstances: (i) Where the offeror or contractor prepares specifications that are to be used in competitive procurements of products or services covered by the specifications. 49

(ii) Where the offerer or contractor prepares plans for specific approaches or methodologies that are to be incorporated into competitive procurements using the approaches or methodologies. (iii) Where the offerer or contractor is granted access to information not available to the public concerning NRC plans, policies, .or programs that could form the basis for a later procurement action. (iv) Where the offerer or contractor is granted access to proprietary information of its competitors. (v) Where the award of a contract might result in placing the offerer or contractor in a conflicting role in which its judgment may be biased, in relation to its work for the NRC or might result in an unfair competitive advantage for the offerer or contractor. (c) Policy application guidance. The following examples are illustrative only and are not intended to identify and resolve all contractor organizational conflict of interest situations. (l)(i) Example. The ABC Corp., in response to a Request For Proposal (RFP), proposes to undertake certain analyses of a reactor component as called for in the RFP. The ABC Corp. is one of several companies considered to be technically well qualified. In response to the inquiry in the RFP, the ABC Corp. advises that it is currently performing similar analyses for the reactor manufacturer. (ii) Guidance. An NRC contract for that particular work normally would not be awarded to the ABC Corp. because the company would be placed in a 50

I position in which .its judgment could ,be biased in relationship to its work for the NRC.

• Because there are other well-qualified companies available, there would be no rea~on for considering a waiv.er of the policy.

(2)(i) Example. The ABC Corp., in response to an RFP, proposes to*, r perform certain analyses of a reactor component tha.t is unique to one type of advanced reactor. As is the case -with other technically qualified companies . ) ._responding to the RFP., the ABC Corp. is performing various projects for several different utility clients. None of the ABC Corp. projects have .any relationshjp to the work called for in the RFP. Based on the NRC evalua~ion, the ABC Corp. is considered to be the best qualified company to perform the work outlined in the RFP.' (ii), Guidance. An NRC contract normally could be awarded to the ABC Corp. because no conflict of interest exists which could motivate bias* I with respect to the work .. An appro~riate clause would be included in the contract to preclude the ABC Corp. from subsequently contracting for work with the private sector that could create a conflict during the performance of the NRC contract. For example, ABC Corp. would be precluded from the perfor.mance of similar work for the company developing the advanced reactor mentioned in the example. (3)(i) Example. The ABC Corp., in response to a competitive RFP, submits a proposal to assist the NRC,in revising NRC's guidance documents on the respiratory protection requirements of 10 CFR Part 20. ABC Corp. is the

• only firm _determined to be technically acceptiibl*e.* ABC Corp. has performed substantial work for regulated utilities in the past and is expected to c9ntinue similar efforts in the ~uture. The work has and will cover the writing,. implementatior:i, and administration of compliance respjratory I **

protection programs for n~clear po~e~ plants. 51

(ii) Guidance. This situation would place the finn in a role where its judgment could be biased in relationship to its work for the NRC. Because the nature of the required work is vitally important in tenns of the NRC's responsibilities and no reasonable alternative exists, a waiver of the policy, in accordance with §2009.570-9 may be warranted. Any waiver must be fully documented in accordanc~ with the waiver provisions of this policy with particular attention to the establishment of protective mechanisms to guard against bias. (4)(i) Example. The ABC Corp. submits a proposal for a new system to evaluate a specific reactor component's performance for the purpose of developing standards that are important to the NRC program. The ABC Corp. has advised the NRC that it intends to sell the new system to industry once its practicability has been demonstrated. Other companies* in this business are using older systems for evaluation of the specific reactor component. (ii) Guidance. A contract could be awarded to the ABC Corp. if the contract stipulates that no information produced under the contract will be used in the contractor's private activities unless this information h~s been reported to the NRC. Data on how the reactor component performs, which is reported to the NRC by contractors, will nonnally be disseminated by the NRC to others to preclude an unfair competitive advantage. When the NRC furnishes information about the reactor component to the contractor for the performance of contracted work, the information may not be used in the contractor's private activities unless the information is generally available to others. Further, the contract will stipulate that the contractor will inform the NRC contracting officer of all situations in which the information, 52

developed about the performance of the reactor component under the contract, is proposed to be used. (S)(i) Example. The ABC Corp., in response to a RFP, proposes to assemble a map showing certain s~ismological features of the Appalachian fold belt. In accordance with the representation in the RFP and §2009.570-3(b)(l)(i), ABC Corp. informs the NRC that it is presently doing seismological studies for several utilities in the eastern United States, but none of the sites are within the geographic area contemplated by the NRC study. (ii ) Guidance. The contracting officer would normally conclude that award of a contract would not place ABC Corp. in a conflicting role where, its judgment might be biased. Section 2052.209-73(c) Work for Others, would preclude AB~ Corp. from accepting work which could create a conflict of interest during the term of the NRC contract. (6)(i-) Example. AD Division of ABC Corp., i.n response to a RFP, submits a proposal to assist the NRC in the safety and environmental review of applications for licenses for the construction, operation, an'd decommissioning of fuel cycle facilities. ABC Corp. is divided into two ~eparate and d1itinct di.visions, AD and BC. The BC Division performs the same or similar services for industry. The BC Division is c~rrently providing the same or similar services required under the NRC's contract 'for an applicant or licensee. (ii) Guidance. An NRC contract for that particular work would not be awarded to the, ABC Corp. The AD Division could be placed in a position to pass judgment on work performed by the BC Division, which could bias its work for NRC. Further, the Conflict of Interest provisions apply to ABC Corp. and not to separate or distinct divisions within the company. If no reasonable 53

alternative exists, a waiver of the policy could be sought in accordance with §2009.570-9. 7(1) EXAMPLE The ABC Corp. completes an analysis for NRC of steam generator tube leaks at one of a utility's six sites. Three months later, ABC Corp. is asked by this utility to perform the same analysis at another of its sites. (ii) GUIDANCE 2052.290-73(c)(3) would prohibit the contractor from beginning this work for the utility until one year after completion of the NRC work at the first site. B(i) EXAMPLE ABC Corp. is assisting NRC in a major* on-site analysis of a utility's redesign of the common areas between its twin reactors. The contract is for two years with an estimated value of $5 million. Near the completion of the NRC work, ABC Corp. requests authority to solicit for a $!DOK contract with the same utility to transport spent fuel to a disposal site. ABC Corp. is performing no other work for the utility. (ii) GUIDANCE The Contracting Officer, would allow the contractor to proceed with the solicitation because 1) it is not in the' same technical area as the NRC work and 2) the potential for technical bias by the contractor because of financial ties to the utility is slight due to the relative value of the two contracts. 54

9(i) EXAMPLE The ABC Corp. is constructing a turbine building and installing new turbines at a reactor.siie. The contract with the utility is for five years and has a total value of

                  $100 million. ABC Corp. has responded to an NRC Request For' Proposal requiring the contractor to participate in a major team inspection unrelated to the turbine work at the same site. The estimated value of the contract is $75K.

(ii) GUIDANCE An NRC contract would not normally be awarded to ABC Corp. since these factors create the potential for financial loyalty to the utility that may bias the technical judgement of the contractor. (d) Other considerations. (1) The fact that the NRC can identify and later avoid, eliminate, or neutralize any potential organizational conflicts arising from the performance of a contract is not relevant to a determination of the existenc~ of conflicts prior to the award of a contract. (2) It is not relevant that the contractor has the professional reputation of being able to resist temptations which arise from organizational conflicts,.of interest, or that a follow-on procurement is not involved, or that a contract is awarded on a competitive or a sole source basis. §2009.570-4 Representation. (a) The following procedures are designed to assist the NRC contracting*officer in determining whether situations or relationships exist 55

which may constitute organizational conflicts of interest with respect to a particular offerer or contractor. The procedures apply to small purchases meeting the criteria stated in the following paragraph (b) of this section. (b} The organizational conflict of interest representation provision at §2052.209-72 must be included in solicitations and unsolicited proposals, {including those for task orders and modifications for new work) for: (1) Evaluation services or activities; (2) Technical consulting and management support services; (3) Research; and (4) Other contractual situations where special organizational conflicts of interest provisions are noted in the solicitation and would be included in the resulting contract. This representation requirement also applies to all modifications for additional effort under the contract except those issued under the "Changes" clause. Where, however, a statement o~*the type required by the organizational conflicts of interest representation provisions has previously been submitted with regard to the contract being modified, only an updating of the statement is required. (c) The offerer may, because of actual or potential organizational conflicts of interest, propose to exclude specific kinds of work contained in a RFP unless the RFP specifically prohibits the exclusion. Any such proposed exclusion by an offerer will be considered by the NRC in the evaluation of proposals. If the NRC considers the proposed excluded work to be an essential 56

or integral part of the required work and its exclusion would be to the detriment of the competitive posture of the other offerers, the NRC shall reject the proposal as unacceptable. (d) The offerer's failure to execute the representati<>n required by paragraph (b) of this section with respect to an invitation for bids is considered to be a minor informality. The offerer will be permitted to correct the omission. §2009.570-5 Contract clauses. (a) General contract clause. All contracts and small purchases of the types set forth in §2009.570-4{b) must include 'the clause entitled, "Contractor Organizational Conflicts of Interest," set forth in §2052.209-73. (b) Other special contract clauses. If it is determined from the nature of the proposed contract that an organizational confliGt of interest exists, the contracting officer may determine that the conflict can be avoided, or, after obtaining a waiver in accordance with §2009.570-9, neutralized through the use of an appropriate special contract clause. If a*ppropri ate, the off eror may negotiate the terms and conditions of these clauses, including the extent and time period of any restriction. These clauses include but are not limited to: (1) Hardware exclusion clauses which prohibit the acceptance of production contracts following a related non-production contract previously performed by the contractor; (2} Software exclusion clauses; 57

(3) Clauses which require the contractor (and certain of its key personnel) to avoid certain organizational conflicts of interest; and (4) Clauses which provide for protection of confidential data and guard against its unauthorized use. §2009.570-6 Evaluation, findings, and contract award. The contracting officer shall evaluate all relevant facts submitted by an offeror and other relevant information. After evaluating this information against the criteria of §2009.570-3, the contracting officer shall make a finding of whether organizational conflicts of interest exist with respect to a particular offerer. If it has been determined that real or potential conflicts of interest exist, the contracting officer shall: (a) Disqualify the offerer from award;

    . (b}   Avoid or eliminate such conflicts by appropriate measures; or (c)   Award the contract under the waiver provision of §2009.570-9.

§2009.570-7 Conflicts identified after award. If potential organizational conflicts of interest are identified after award with respect to a particular contractor, and the contracting officer determines that conflicts do exist and that it would not be in the best interest of the government to terminate the contract, as provided in the clauses required by §2009.570-5, the contracting officer shall take every reasonable action to avoid, eliminate, or, after obtaining a waiver in 58

accordance with §2009.570-9, neutralize the effects Of the identified ' conflict.

 §2009.570-8 Subcontracts.

The contraGting officer shall require offerers and contractors to submit a represe~~ation statement from all subcontractors (other than a supply subcontractor} and consultants performing services in excess of $10,000 in accordance with §2009.570-4(b). The contracting officer shall require the contractor to include contract clauses in accordance with §2009.570-5 in consultant agreements or subcontracts invol~ing performance of work under a prime contract.

 §2009.570-9 Waiver.

(a) The contracting officer determines the need to seek a waiver for 1 I specific contract ~wards, with the advice and concurrence of the prografil office director and legal counsel. Upon the recommendation of the Procurement

• 1 '

Ex~cutive, and after consultation with legal couns~l, the Executiv~ Director for Operations may waive the policy in specific cases if he determines that it is in'the*best interest of the United States to do so. (b) Waiver action is strictly limited to those situations in which: (1)

• The work to be performed under contract is vital to the NRC program.

(2) The work cannot be satisfactorily performed except by**a contractor whose interests give rise to a question of conflict *Of interest. 59

(3} Contractual and/or techDical review and surveillance methods can be employed by the NRC to neutralize the conflict. (c} For any waivers, the justification and approval documents must be placed in the NRC Public Document Room, 2120 L Street, NW. (Lower Level}, Washington, DC. §2009.570-10 Remedies. In addition to other remedies permitted by law or contract for a breach of the restrictions in this subpart or for any intentional misrepresentation or intentional nondisclosure of any relevant interest required to be provided for this section, the NRC may debar the contractor from subsequent NRC contracts. PART 2010 - SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE DESCRIPTIONS 2010.004 - Brand name products or equal. 2010.011 - Solicitation provisions and contract clauses. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201}; Sec. 201, 88 Stat.- 1242, as amended (42 U.S.C. 5841; 41 U.S.C. 418(b}.

§2010.004 - Brand name products or equal.

(a} Acquisitions will generally not be based on a specifically identified product or feature(s} ther~of. However, under unusual circumstances this type of approach may be used as described below. 60

(b) Brand name or equal purchase descriptions must cite all brand name products known to be acceptable and of current manufacture. If the use of a brand name or equal purchase description results in the purchase of' an acceptable brand name product which was not listed as an equal" product, a 11 reference to that brand name product should be included in the purchase description for later acquisitions. If a brand name product is no longer applicable, the reference to that brand name must be deleted from any subsequent purchase description. (1) It is imperative that brand name or equal purchase descriptions specify each physical or functional characteristic of the product that is essential to the intended use. Fai1ure to do so may result .in a defective solicitation and the necessity to resolicit the requirement. Care must be taken to avoid. specifying characteristics that ~annot be shown to materially affect the intended end use and which unnecessarily restrict competition.* (2) When describing essential characteristics, permissible tolerances should be indicated. A characteristic (e.g., a specific dimension) of a brand name product may not be specified unless it is essential to the Government's need. The contracting officer shall be able to justify the requirement. (c) The clause found at §2052.210-70 must be inserted in all solicitations citing a brand name or equal, except when samples are requested'. (d) An offer may not be rejected for failure of the offered product to equal a characteristic of a brand name product if it was not specified in the brand name or equal description. However, if it is clearly established that the unspecified characteristic is essential to the intended end use, the 61

solicitation is defective and no award may be made. In these cases, the contracting officer should resolicit the requirements, using a purchase description that sets forth the essential characteristics. (e) In small purchases within the open market limitations, brand name policies and procedures are applicable to the extent practicable. §2010.011 - Solicitation provisions and contract clauses. The contracting officer shall insert the clause at §2052.210-71, Drawings, Designs, Specifications, and Data, in all contracts in which drawings, designs, specifications, or other data will be developed and the NRC must retain full rights to them (except for the contractor's right to retain a copy for its own use). When any of the clauses prescribed at FAR 27.409, Solicitation Provisions and Contract Clauses, are included in the solicitation/contract, this clause will not be used. *., PART 2012 - CONTRACT DELIVERY OR PERFORMANCE AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2012.104 - Contract 'clauses §2012.104-70 NRC clauses. (a) The contracting officer shall insert the clause at §2052.212-70, Preparation of Technical Reports, when deliverables include a technical report. 62

(b) The contracting officer shall insert the clause jt §2052~212-7l, Technical Progress Report,* in all solicitations and contracts except-- (1) Firm fixed price; and (2) Indefinite-delivery contracts to be awarded on a time and materials or* lab~r-hour basis, or which.provide for issuance of delivery orders for specific products/services (line items). (m) The contracti~g officer shall insert the clause at §2052.212-72, Financial Status Report, in all solicitations and contracts (except Fixed Price) when *detailed assessment of costs is warranted and a Contractor,

             '                    ' ~                       ' I Spending Plan is required; use the clause at §2052.212-73 Financial Status Report - Alternate_ 1 when no Contr~ctor Spending Plan is required.

I ' (d) The coptracting officer may alter these clauses prior to issuance of the solicitation or dur.ing competition by solicitation amendment:* Reporting requirements should be set a~ a meaningful and productive frequency. Insignificant changes may also be made by the contracting officer on a case-by-case basis during negotiations, without solicitation amendment. SUBCHAPTER C - CONTRACTING METHODS AND CONTRACT TYPES PART 2013 - SMALL PURCHASE AND OTHER SIM~LIFIED PURCHASE PROCEDURES AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2013.5 - Purchase Orders 63

§2013.505-2 Agency order forms in lieu of Optional Forms 347 and 348. NRC Form 103, Purchase Order, is prescribed for use by the NRC in lieu of Optional Forms 347 and 348. PART 2014 - SEALED BIDDING Subpart 2014.2 Solicitation of Bids Sec. 2014.201 Preparation of invitation for bids. 2014.201-670 Solicitation provisions. Subpart 2014.4 Opening of Bids and Award of Contract 2014.406 Mistakes in bids. 2014.406-3 Other mistakes disclosed before award. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2014.2 Solicitation of Bids §2014.201 Preparation of invitation for bids. §2014.201-670 Solicitation provisions. (a) The contracting officer shall insert the provision at §2052.214-70, Prebid Conference, in Invitations for Bids (IFB) where there will be a 64

prebid conference. This provision may be altered by the contracting officer to fit circumstances. {b) The cognizant contracting officer shall insert in all invitations for bids, except as noted, the provisions at: (1) Section 2052.214-71, Bidder Qualifications and Past Experienc~s. (optional, to fit circumstances) (2) Section 2052.214-72, Bid Evaluation (paragraph f. is optional). - (3) (4) Section 2052.214-73, Timely Receipt of Bids. Section 2052.214-74, Disposition of Bids. Subpart 2014.4 Opening of Bids and Award of Contract

  §2014.406  Mistakes in bids.
  §2014.406-3 Other mistakes disclosed before award.

(a) The Director, Division of Contracts and Property Management, is delegated the authority to make the determinations concerning mistakes i~ bids, including those with obvious clerical errors, discovered prior to award. These determinations will be concurred in by legal counsel prior to notification of the bidder. 65

(~) The cognizant contracting officer is delegated the authority to make determinations concerning mistakes disclosed after award in accordance with FAR 14.406-4. Part 2015 - CONTRACTING BY NEGOTIATION Subpart 2015.4 - Solicitation and Receipt of Proposals and Quotations 2015.407-70 Solicitation pr_ovisions and contract clauses. 2015.413 o*isclosure and use of information before award. 2015.413-2 Alternate II. Subpart 2015.5 - Unsolicited Proposals 2015.506 Agency procedures. 2015.506-1 Receipt and initial review. 2015.506-2 Evaluation. 2015.507 Contracting methods. Subpart 2015.6 - Source Selection 2015.602 Applicability. 2015.604 Responsibilities. 2015.605 Evaluation factors. 2015.607 Disclosure of mistakes before award. 2015.608 Proposal evaluation. 2015.610 Written or oral discussions. 2015.611 Best and final offers. 2015.612 Source Evaluation Panel structure. 66

2015.670 Contract provisions. AUTHORITY: . 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2015.4 - Solicitation and Receipt of Proposals and Quotations

 §2015.407-70 Solicitation provisions and contract clauses.

(a) The contracting officer shall insert in Requests for Proposals e (RFPs) the provisions at: - (1) Section 2052.215-70, Key Personnel; * (2){i) Section 2052.215-71, Project Officer Authority {for solicitations for cost reimbursement, cost plus fixed fee, cost plus award fee, cost sharing labor hour or time and materials, including task order contracts); - (ii.) Section 2052.215-72, Project Officer Authority - Alternate 1 (for

• solicitations for issuance of delivery orders for specific products/services).

{iii) Section 2052.215-72, Project Officer Authority - Alternate 2 with par~graph (b)(l) deleted and the remainder of the clause renumbered {for solicitations for firm fixed price contracts); (iv) This provision §2052.215-70 and Alternate 1 are intended for experienced, trained project officers, and may be altered to delete duties where appropriate. 67

(3) Section 2052.215-73, Timely Receipt of Proposals; (4) Section 2052.215-74, Award Notification and Corm1itment of Public Funds; and (5) Section 2052.215-75, Disposition of Proposals. (b) The contracting officer shall insert in all solicitations for negotiated procurements for cost type contracts that do not provide for task orders or delivery orders, the provision at §2052.215-76, Proposal Presentation and Fonnat except that: (1) For all solicitations for negotiated task order contracts, paragraphs (e)(4)(xi) and (xii) must be deleted (and the remainder renumbered), and the paragraph found at §2052.215-77 must be substituted for paragraph (d)(2}. (2) For all negotiated procurements for a fixed price, labor hour, or time and materials contract, paragraph (d){2) shall be deleted from the provision §2052.215-76. The provision must be tailored to assure that all sections, but in particular paragraph (e), Technical and Management Proposal, reflect a one-to-one relationship to the evaluation criteria. (c) The contracting officer shall insert the provision at §2052.215-78, Preproposal Conference, in RFPs where there will be a preproposal 68

conference. This provision may be altered to fit the circumstances of the requirement. (d) The contracting officer shall insert the clauses ~t §2052.215-79, Travel Reimbursement, §2052-215-79, Travel Reimbursement - Alternate 1 with paragraph (a) deleted and the remainder of the clause renumbered (for I contracts when there is no ceiling amount on domestic travel), and 2052-215-80, Travel Approvals, in RFPs where there will be travel. §2015.413 - Disclosure and use of information before award. §2015.413-2 Alternate II. The procedures discussed at FAR 15.413-2 may be used if approved at a level above the contracting officer. Subpart 2015.5 - Unsolicited Proposals §2015.506 Agency procedures. (a) The Division of Contracts and Property Management, Policy Branch (PB), is the point of contact for the receipt, acknowledgement, and handling of unsolicited proposals. (b) Unsolicited proposals in original and two copies, and requests for additional information regarding their preparation must be submitted to: Chief, Policy Branch 69

Division of Contracts and Property Management Mail Stop P-1118 U.S. Nuclear Regulatory Commission Washington, DC 20555 This will ensure that the proposal is logged into the unsolicited proposal tracking system. §2015.506-1 Receipt and initial review. (a) PB shall acknowledge receipt of an unsolicited proposal, complete a preliminary review, assign a docket number, and send copies of the unsolicited proposal to the appropriate program office Director(s) or designee for evaluation. (b) PB shall be responsible for controlling reproduction and distribution of proposal material by notifying evaluators of their responsibilities and tracking the number of proposals received and forwarded to evaluators. (c) An acknowledgment letter will be sent to the proposer by the PB, providing an estimated date for a funding decision or identifying the reasons for non-acceptance of the proposal for review in accordance with FAR 15.503 and 15.505.

§2015.506-2        Evaluation.

70

Directors of NRC offices shall conduct comprehensive technical evaluations of proposals submitted to them ~y the PB, in accordance with the criteria discussed in FAR 15.506-2(a).

  §2015.507     Contracting methods.

If a noncompetitive contract is recommended, the Director of the recommending NRC office shall submit to the Division of Contracts and Property Management a written evaluation, Request for Procurement Action (RFPA) and

• 'Justification for Other Than Full and Open Competition in accordance with FAR 15.507(b)(5).

Subpart 2015.6 - Source Selection

   §2015.602   Applicability.

Thi~ subpart does not apply to contracts awarded to the Small Business Administration under Section 8(a) of the Small Business Act.

  §2015.604    Responsibilities.

(a) All persons participating in the evaluation process may not discuss or reveal information concerning the evaluations except to an individual participating in the same*evaluation proceeding, and then only to the extent that the information is required in connection with the proceeding. Divulging information during evaluation, selection, and negotiation phases of the acquisition to offerers or to other persons not having a need to know could jeopardize the resultant award and violates the information-disclosure 71

provisions of FAR 3.104, Procurement Integrity. These provisions carry criminal as well as civil and administrative penalties. Only the contracting officer (or authorized representative within the Division of Contracts and Property Management) may release source selection information to others during the selection process. The contracting officer (or authorized representative) shall instruct all participants in the evaluations to observe the prohibitions of the Procurement Integrity Act. A procurement official certification must be signed for each agency employee personally and substantially involved in preparing or approving the advance procurement plans, statement of work and participating in the source evaluation process [i.e. serving as a member of the Source Evaluation Panel (SEP)]. (b) All persons participating in the evaluation process shall declare any financial or other relationships which may create conflict of interest problems with their evaluation duties. A form for this purpose must be signed prior to receipt of any proposals or participation in discussion of proposals. (c) Only the contracting officer (or authorized representative within the Division of Contracts and Property Management) may conduct discussions with offerers relative to any aspect of the acquisition. The contracting officer may include other personnel in discussions, as necessary.

§2015.605   Evaluation factors.

The evaluation criteria included in the solicitation serve as the standard against which all proposals are evaluated, and are the basis for the development of proposal preparation instructions, in accordance with

§2015.407-?0(b). Indication in the solicitation of the relative importance of 72

evaluation factors and subfactors is accomplished by the assignment of a numerical weight to each. For those factors that will not be numerically weighted, only their relative importance will be stated in the solicitation. Examples of factors which may not be numerically weighted*are conflict of interest, *estimated cost, and business evaluations, and "go/no go" evaluation factors. §2015.607 Disclosure of mistakes before award. {a) The contracting officer shall require that the offerer's clarification{s) provided in accordance with FAR 15.607 be in writing. {b) A correction of a mistake in a proposal may be made only after a written determination to permit it has been made by the contracting officer. §2015.608 Proposal evaluation. {a) A Source Evaluation Panel {SEP) shall evaluate technical pr.oposals in accordance with the solicitation technical evaluation criteria. The SEP prepares and signs the Competitive Range Report with the SEP's findings and scoring for each technical proposal together with its analysis of cost and other factors and forwards the report for the review and approval of the Designating Official. The contracting officer uses this technical evaluation and analysis of costs and other factors in determining the*competitive range. (b) The Designating Official (Office Director or designee) is responsible for appointing the SEP and is responsible for conducting an independent review and evaluation of the SEP's two primary products ~fter 73

proposal evaluation: the Competitive Range Report and the Final Evaluation Report. Any cancellation of solicitations and subsequent rejection of all proposals must be approved by the Head of the *Contracting Activity. §2015.610 Written or oral discussions. The contracting officer shall point out to each offeror within the competitive range any deficiencies including ambiguities or uncertainties in its proposal. The discussions are intended to assist the SEP in understanding the proposals and their strengths and weaknesses based upon the individual efforts of each offerer to ensure that the meaning and emphasis of solicitation provisions have been adequatel~ conveyed to the offerors so that all offerors are competing equally on the basis intended by the Government. §2015.611 Best and final offers. The SEP evaluates the technical proposal portion of the best and final offers. Technical proposals will be recorded and rescored by the SEP, as appropriate, and a Final Evaluation Report of the SEP's findings and scoring for each technical proposal will be prepared and forwarded to the Designating Official for review and approval prior to submission to the contracting officer for final approval. The report will include a summary of the technical analysis of costs as a part of the analysis of the technical proposals. The SEP's individual evaluation worksheets and summary score sheet must accompany the Final Evaluation Report and will become part of the official file.

§2015.612    Source Evaluation Panel structure.

(a) For all proposed contracts with' total estimated values in excess of $25,000 and exp~cted to res~lt from competitive technical-and price/cost negotiations, the cooperative review efforts of technical, contracting, and other administrative personnel are formalized through the establishment of a SEP. (b)(l) The SEP includes: (i) At least three technical members (one of whom serves as the chairperson) who participate in the scoring of proposal~ using weighted - evaluation criteria and evaluating proposals' using other unweighted factors;

• and (ii) A contract negotiator who ensures that procurement rules and regulations are foilowed, ensures that the integrity of the process is maintained, and negotiates the contract on behalf of the NRC.

(2) Except in unusual cases, the SEP should not exceed five members

-   including.the Chairperson.       The technical members are usually employees*of the NRC pro.gram office initiating the request or other NRC employees with expertise in areas related to the solicitation Stat~ment of Work.        Appointment of a technical member from other than t~e office initiating the request is encouraged .. Employees of other agencies with expertise in a specific area may also serve as SEP technical members not withstanding the fact that they are not employees of the NRC.       Evaluators need not be Federal employees, but the potential for ~onflict of inter~st must be carefully considered in these cases and the solicitation should notify offerers of the NRC's intent to use non-Federal evaluators .. The CO will make a det'ermi**

nation whether orr not a non-

   *federal evaluator will b~ a voting*SEP member.        For proposed-procurements. with 75

a total estimated cost of less than $500,000 over a performance period of three years or less, a single technical member may be appointed to evaluate proposals with the contracting officer's approval. Designation of SEP members is accomplished by memorandum initiated by the director of the program office or the director's designee. This official is referred to as the Designating Official (DO). (c} The SEP chairperson may obtain the services of advisors (e.g., legal, financial, etc.) to assist the SEP. Advisors who serve on technical evaluation committees are appointed in writing by the DO. Advisors are not SEP members, and therefore do not score proposals. Advisors need not be Federal employees, but the potential for conflict of interest must be carefully considered in these cases, and the solicitation should notify offerers of the NRC's intent to use non-Federal advisors. (d) The contracting officer shall establish the competitive range on all acquisitions. This is accomplished by approval of the SEP's written recommendation transmitted by the DO. (e) The source selection official is the contracting officer. Selection is made based on review of the SEP's reco1T1T1endations as endorsed by the DO, together with all supportfng data to ensure that award is in accordance with sound procurement principles and directly related to the evaluation criteria as set forth in the solicitation. Any proposed selection not endorsed by the DO will be concurred in by the Head of the Contracting Activity.

§2015.670   Contract provisions.

76

(a) The contracting officer shall include the provision found at

 §2052.215-81, Contract Award and Evaluation of Proposals, in all solicitations, where technical is more important than cost:

(1) The contracting officer shall substitute the paragraph found at

 §2052.215-82 for paragraph (b) in all solicitations for negotiated competitive procurements where cost is more important than technical merit.

(2) The contracting officer shall substitute the paragraph found at

 §2052.215-83 for paragraph (b) in all solicitations for negotiated competitive procurements where cost and technical merit are of equal significance.

(b) The contracting officer may make appropriate changes to the provision to accurately reflect other evaluation procedures, such as evaluation of proposals against mandatory criteria and benchmarking criteria for ADP procurements. Part 2016 - TYPES OF CONTRACTS Subpart 2016.3 - Cost Reimbursement Contracts Sec. 2016.307-70 Contract provisions and clauses. Subpart 2016.5 - Indefinite-Delivery Contracts 2016.506-70 Contract provisions and clauses. 77

AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2016.3 - Cost Reimbursement Contracts §2016.307-70 Contract provisions and clauses. (a) The contracting officer shall insert the clause at §2052.216-70, Level of Effort, in solicitations for negotiated procurements containing labor costs other than maintenance services, to be awarded on a cost reimbursement, cost sharing, cost-plus-award fee, cost-plus-fixed fee, time and materials, or labor hour basis. (b) The contracting officer shall insert the following provisions and clauses in all cost reimbursement contracts: (1) Section 2052.216-71, Indirect Cost Rates (where provisional rates without ceilings apply).

     *(2)   Section 2052.216-72, Indirect Cost Rates - Alternate 1 (where predetermined rates apply}.

(3) Section 2052.216-73, Indirect Cost Rates - Alternate 2 (where provisional rates with ceilings apply). (c) The contracting officer may make appropriate changes to these clauses to reflect different arrangements. Subpart 2016.5 - Indefinite-Delivery Contracts. 78

2016.506-70 Contract provisions and clauses. The contracting officer shall insert the following provisions in all solicitations and contracts that contain task order procedures: (a) Section 2052.216-74, Task Order Procedures; (b) Section 2052.216-75, Accelerated Task Order Procedures. SUBCHAPTER D - SOCIOECONOMIC PROGRAMS Part 2107 - SPECIAL CONTRACTiNG METHODS AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 48l{b). Subpart 2017.2 - Options §2017.204 - Contracts {a) The contracting officer may approve extensions to five year contracts for up to a total of an additional six months, for the purpose of completing the competitive process for a follow on contract, provided that the competitive requirement was received in DCPM not less than six months before the end of the fifth year. (b) The Head of the Contracting Activity may approve extensions for up to a total of one year. 79

Part 2019 - SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS Subpart 2019.7 - Subcontracting with small business and small disadvantaged business concerns. 2019.705 Responsibilities of the contracting officer under the subcontracting assistance program. 2019.705-4 Reviewing the subcontracting plan. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2019.7 - Subcontracting with Small Business and Small Disadvantaged Business Concerns §2019-705 Responsibilities of the contracting officer under the subcontracting assistance program. §2019.705-4 Reviewing the subcontracting plan. (a) During the source selection process, subcontracting plans may be requested from all concerns required to submit them and determined to be in the- competitive range, for negotiation with the apparent successful offeror. (b) The contracting officer may accept the terms of an overall or "master" company subcontracting plan incorporated by reference into a specific subcontracting plan submitted by the apparent successful offeror/bid for a specific contract, if: 80

{l) The master plan contains all of the elements required by FAR 19.704; (2) Subcon~racti~~ goals for small and small disadvantaged business concerns are specifically set forth in each contract or modification over the statutory threshold; {3) Any chang~s to the plan deemed necessary and required by the contracting officer in areas other than goals are specifically set forth in the contract or modificatioQ; and {4) The contracting officer has copies of the entire plan. Part 2020 - LABOR SURPLUS AREA CONCERNS Subpart 2020.1 . General

     §2020.102 - General* policy *.

AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2020.l - General Subpart 2020.102 General Policy Acquisitions that are in excess of $25,000 must be reviewed for potential labor surplus area set-aside consideration in accordance with FAR 81

20.104 using publications and other information identifying labor surplus areas obtained from: U.S. Department of Labor Employment and Training Administration U.S. Employment Service Office of Labor Market Information 200 Constitution Ave., NW., Room N4456 Washington, DC 20510 Telephone Number: (202) 535-0157 Part 2022 - APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS Subpart 2022.1 Basic Labor Policies. 2022.101-1 General 2022.103-4 Approvals. Subpart 2022.9 Nondiscrimination because of Age 2022.901-70 Contract provisions. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 4186 (b) Subpart 2022.1 Basic Labor Policies.

§2022.101-1   General.

The Head of Contracting Activity shall designate programs or requirements for which it is necessary that contractors be required to notify the Government of actual or potential labor disputes that are delaying or threaten to delay the timely contract performance. 82

• §2022.103-4 Approvals.

The agency approving official for contract.or overtime shall be the contracting officer. Subpart 2022.9 ~ Nondiscrimination Because of Age.

 §2022.901-70        Contract provisions.

The contracting officer shall insert the provision found at §2052.222-70, Nondiscrimination Because of Age, in all solicitations. Part 2024 - PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION Subpart 2024.l Protection of In~ividual Privacy 2024.103 Procedures. Subpart 2024.2 ~ Freedom of Information Act

      ' 2024. 202    Policy.

AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418{b). Subpart 2024.1 - Protection of Individual Privacy.

 §2024.103     Procedures.

83

The provisions at 10 CFR Part 9, Subpart B, Privacy Act Regulations, are applicable to the maintenance or disclosure of information for a system of records on individuals. Subpart 2024.2 - Freedom of Information Act §2024.202 Policy. The provisions at 10 CFR Part 9, Subpart A, Freedom of Information Act Regulations, are applicable to the availability of NRC records to the public. Part 2025 - FOREIGN ACQUISITION Subpart 2025.1 - Buy American Act - Supplies 2025.102 Policy. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b}. Subpart 2025.1 - Buy American Act - Supplies

§2025.102    Policy.

Contracting officers may make the determination required by FAR 25.102(a)(4), provided the determination is factually supported in writing. 84

For contracts exceeding $1 million, the Head of the Contracting Activity shall approve the determination. SUBCHAPTER E - GENERAL CONTRACTING REQUIREMENTS Part 2027 - PATENTS, DATA, AND COPYRIGHTS Subpart 2027.3 - Patent Rights Under Government Contracts. Sec. 2027.305 Administration of patent rights clauses. 2027.305-3 Follow-up by Government. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2027.3 - Patent Rights Under Government Contracts. §2027.305 Administration of patent rights clauses. The contracting officer shall ensure that each contractor report is in writing on whether any patent rights are being claimed, before final payment and closeout of the contract.

§2027.305-3   Follow-up by Government.

(a) The contracting officer shall, as a part of the closeout of a contract, require each contractor to report on any patents, copyrights, or 85

royalties attained using any portion of the contract funds. The contractor shall, if no activity is to be reported, certify that in connection with the performance of the contract: (1) No inventions or discoveries were made, (2) No copyrights were secured, produced, or composed, (3) No notices or claims of patent or copyright infringement have been received by the contractor or its subcontractors, and (4) No royalty payments were directly involved in the contract or reflected in the contract price to the Government, nor ~ere any royalties or other payments paid or owed directly to others. (b) The contracting officer may waive any of the requirements paragraphs (a) (1)-(4) of this section, after documenting the file to indicate the - (1) Impracticality of obtaining the document(s); and (2) Steps taken to attempt to obtain them. (c) The contracting officer shall notify agency legal counsel responsible for patents whenever a contractor reports any patent, copyright, or royalty activity, and shall document the official file with the resolution to protect the Government's rights prior to making any final payment and closing out the contract. 86

Part 2030 - COST.ACCOUNTING STANDARDS Subpart 2030. 2 _CAS Program* Requ,i rements ~ 2030.201-5 Waiver AUTHORITY: 42 u.s.c. 2201; 42 u.s.c. 5841; and 41 u.s~c. 418(b). 2030.201-5 Waiver Subpart 2030.2 - CAS Program Requirements In accordance with the FAR 30.201-S(c), the Head of the Contracting Activity may waive CAS requirements. Part 2031 - CONTRACT COST PRINCIPLES AND PROCEDURES Subpart 2031.1 - Applicability 2031.109-70 Contract classes. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2031.1 - Applicability §2031.109-70 Contract clauses. The contracting officer shall insert the clause at §2052.231-70, Precontract Costs, in all*cost type contracts w~en costs in connection with work under the contract wi 11 be i n*curred by the *contractor before the

                                       , l 87

effective date of the contract. Approval for use of this clause must be obtained at one level above the contracting officer. Part 2032 - CONTRACT FINANCING Subpart 2032.4 - Advance Payments Sec. 2032.402 General. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2032.4 - Advance Payments §2032.402 General. (a) The contracting officer shall have the responsibility and authority for making findings and determinations, and for approval of contract terms concerning advance payments. (b) Before authorizing any advance payment agreements except for subscriptions to publications, the approving official shall coordinate with the Office of the Controller, Division of Accounting and Finance, to ensure completeness of contractor submitted documentation. Part 2033 - PROTESTS, DISPUTES, AND APPEALS Subpart 2033.l - Protests 88

2033.103 Protests to the agency. 2033.203 Appli~ability. 2033.211 Contracting officer's decision. 2033.214 Contract clause. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2033.l Protests §2033.103 Protests to the agency. The agency may not process, or shall cease processing; agency level protests that are protested outside the agency unless and until such time that a proper determination is made authorizing the agency to proceed under the applicable protest procedures. §2033.203 Applicability. Pursuant to an interagency agreement between the NRC and the Department of Energy Board of Contract Appeals (EBCA), the EBCA will hear appeals from final decisions of NRC contracting officers issued pursuant to the Contract Disputes Act. The EBCA rules appear in 10 CFR Part 1023. §2033.211 Contracting officer's decision. 89

Contracting officers shall alter the paragraph at FAR 33.21l(a)(4)(iv) to identify the Energy Board of Contract Appeals and include its address: Webb Building, Room 1006, 4040 N. Fairfax Drive, Arlington, Virginia 22203, when preparing a written decision. §2033.214 Contract clause. The contracting officer shall use the clause at FAR 52.233-1, Disputes, with its Alternate I where continued performance is vital to National Security, the public health and safety, critical and major agency programs, or other essential supplies or services whose timely reprocurement from other sources would be impractical. SUBCHAPTER F - SPECIAL CATEGORIES OF CONTRACTING Part 2035 - RESEARCH AND DEVELOPMENT CONTRACTING 2035.70 Contract clauses. 2035.71 Broad agency announcements. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).

§2035.70    Contract clauses.

90

(a) The contracting officer shall insert the following .clauses in all RFPs for Research,and Development or in Requests for Proposals (RFPs) for other technical services as appropriate: (b) Section 2052.235-70, Publication of Research Results, except that in the case of universities, the contracting officer shall substitute the paragraph found at §2052.235-71 for paragraph c. (c) Section 2052.235~72 Safety, Health and Fire Protection. §2035.71 Broad agency announcements. (a) Criteria for selecting contractors will include such factors as: (1)

• Unique and innovative methods, approaches, or concepts demonstrated by the proposal.

(2) . Overall scientific, technical, or economic merits of the proposal. (3) The offerer's capabilities, related experience,facil~ties, techniques, or unique combinations of these which are integral factors for achieving the proposal objectives. (4) The qualifications, capabilities, and experience of the proposed principal investigator, team leader, or key personnel who are critical in achieving the proposal objectives. (5) Potential contribution of .the effort to NRC's mission. 91

(6) Overall standing among similar proposals available for evaluation and/or evaluation against the known state-of-the-art technology. (b) Once a proposal is received, coIT111unication between the agency's scientific or engineering personnel and the principal investigator is permitted for clarification purposes only and must be coordinated through the Division of Contracts and Property Management. (c) After evaluation of the proposals, the Designating Official shall submit a comprehensive evaluation report to the contracting officer which recommends the source(s) for contract award. The report must reflect the basis for the selection or nonselection of each proposal received. Part 2039 - ACQUISITION OF INFORMATION RESOURCES 2039.001 Policy. 2039.002 Delegations of procurement authority. AUTHORITY: 42 U.S.C 2201; 42 U.S.C. 5841; AND 41 U.S.C. 418(b).

§2039.001   Policy.

In accordance with the Federal Information Resources Mana_gement Regulation (41 CFR Ch. 201), and appropriate NRC Management Directives, the Office of Information Resources Management will be responsible for development and/or approval of requirements analysis including information needs, justification for specific make and model, analysis of alternatives, and 92

Delegations of Procurement Authority for information resources management procurements in excess of $25,000 (automated data processing, telecommunications, and records), when required. These dpcuments must be. submitted to the Division of Contracts and Prope~ty Management with the Request for Procurement Action (RFPA) for. which these documents are required. §2039.002 Delegations of procurement authority. The NRC official authorized to sign Agency Procurement Requests and A~ency Telecorm1unications Requests for Delegations of Procurement Authority is the Deputy Executive Director for Nuclear Materials Safety, Safeguards and Operations Support or designee. SUBCHAPTER G - CONTRACT MANAGEMENT Part 2042 - CONTRACT ADMINISTRATION Subpart 2042.8 - Disallowance of Costs Sec. 2042.803 Disallowing costs after incurrence. AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 418(b). Subpart 2042.8 ~ Disallowance of Costs

§2042.803 Disallowing costs after incurrence.

93

(a) Vouchers ~nd invoices submitted to NRC must be submitted to the contracting officer or designee forcreview and approval for payment. If the examination of a voucher or invoice raises a question regarding the allowability of a cost submitted, the contracting officer or designee shall*: (1) Hold informal discussions with the contractor as appropriate. (2) If the discussions do not resolve the matter, the contracting officer shall issue a.notice advising the contractor of costs disallowed. The notice must advise the contractor that it may: (i) If in disagreement with the disallowance, submit a written claim to the contracting officer for payment of the disallowed cost and explain why the cost should be reimbursed; or (ii) If the disagreement(s) cannot be settled, file a claim under the disputes clause which will be processed in accordance with disputes procedures found at FAR Subpart 33.2; and (3) Process the voucher or invoice for payment and advise the NRC Division of Accounting and Finance to deduct the disallowed costs when scheduling the voucher for payment. (b) When audit reports or other notifications question costs or consider them unallowable, the.contracting officer shall resolve all cost issues through discussions with the contractor and/or auditor, whenever possible, within six months of receipt of the audit report. (1) One of the following courses of action must be pursued: 94

(i) Accept and implement audit recommendations as submitted; (ii) Accept the principle of the audit reco1T111endation but adjust.the amount of the questioned costs; (iii) Reject audit findings and recorrmendations. (2) When implementing the chosen course of action, the contracting officer shall: (i) Hold discussions with the auditor and contractor, as appropriate; (ii) If the contracting officer agrees with the auditor concerning the questioned costs, attempt to negotiate a mutual settlement of questioned costs; (iii) Issue a final decision, including any disallowance of questioned. cost.s; in.form the contractor of his/her right to *appeal the decision under the disputes procedures found at FAR Subpart 33.2; and provide a copy of the final decision to the Office of the Inspector General; and (iv) Initiate immediate recoupment actions for all *disallowed costs owed the government by one or more of the following methods: (A) Request :that the co~tractor provide a credit adjustment (offset) against amounts billed the government on the next or-other.future invoice(s) submitted under the contract for which the disallowed costs apply; 95

{B) Deduct the disallowed costs from the next invoice submitted under the contract; {C) Deduct the disallowed costs on a schedule determined by the contracting officer after discussion with the contractor (if the contracting officer determines that an immediate and complete deduction is inappropriate); and (D) Advise the contractor that a refund is immediately payable to the ~overnment (in situations where there are insufficient payments owed by the government to effect recovery from the contract). PART 2045 - GOVERNMENT PROPERTY Subpart 2045.3 - Providing Government Property to contractors 2045.370 Providing government property (in general). AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2045.3 - Providing Government Property to Contractors

§2045.370 Providing government property (in general).

{a) Unless otherwise provided for in FAR 45.302-l(d), applicable to Government facilities with a unit cost of less than $10,000, a contractor may be provided Government property or allowed to purchase the property at 96

Government expense upon determination made by the contracting officer with the advice of the agency property official that: (1) No practicable or economical alternative exists; e.g., acquisition from other sources, utilization of subcontractors, rental of property, or modification of program project requirements;

        -- ~  -       --- --- -*- --

( 2} Furnishing Government prope-rty is -fikely-fo reiult-in - -- r substantially lower costs to the Government for the items produced or services rendered when all costs involved {e.g., transportation, installation, ' modification, maintenance, etc.) are compared with the costs to the Government of the contractor's use of privately-owned property; and (3) The Government receives adequate consideration for proiiding the property. (b) If the program office is aware before the submis'sion of the RFPA that it will be necessary to provide prospective contractors with Government property, a written justification must accompany the RFPA to the Diyision of Contracts: and Property Management. SUBCHAPTER H - CLAUSES AND FORMS Part 2052 - SOLICITATION PROVISIONS AND CONTRACT CLAUSES Subpart 2052.2 Text of Provisions and Clauses 97

2052.200 Authority. 2052.204-70 Security. 2052.204-71 Site access badge requirements. 2052.209-70 Qualifications of contract employees. 2052.209-71 Current/former agency employee involvement. 2052.209-72 Contractor organizational conflicts of interest (representation). 2052.209-73 Contractor organizational conflicts of interest. 2052.210-70 Brand name products or equal. 2052.210-71 Drawings, designs, specifications, and other data. 2052.212-70 Preparation of technical reports. 2052.212-71 Technical progress report. 2052.212-72 Financial status report. 2052-212-73 Financial status report - Alternate 1 2052.214-70 Prebid conference. 2052.214-71 Bidder qualifications and past experiences. 2052.214-72 Bid evaluation. 2052.214-73 Timely receipt of bids. 2052.214-74 Disposition of bids. 2052.215-70 Key personnel. 2052.215-71 Project officer authority. 2052.215-72 Project officer authority - Alternate 1. 2052.215-73 Timely receipt of proposals. 2052.215-74 Award notification and commitment of public funds. 98

2052.215-75 Disposition of proposals.

   ' , I 2052.215-76        Proposal presentation and format.

2052.215-77 Proposal presentat1o~ and form~t - Alternate 1 (language for negotiated task order contracts.). 2052. 215'. 78 Proposal presentation and format - Alternate 2 (language for negotiated fixed prices, labor hour, or time and materials contracts.) 2052.2'15-79 Preproposal conference. 2os~.2is-ao Travel *reimbursement. 2052.215-81 Travel approvals. 2052.215-82 Contract award and evaluation*of proposals - technical merit more important than cost. 2052.215-83 Contract award and evaluation of proposals - cost more important than technical merit. 2052.215-84 Contract award and evaluation of proposals -

                             **cost and technical merit of equal value.

2052.216-70 Level of effort.

         "2052.216.:..71     Indirect cost rates.

-e. 2052.216-72 2052.216-73 2052.21~-74 Indirect cost rates - Alternate 1. Indirect cost rates - Alternate 2. Task order procedures. 2052.216-75 Accelerated task order procedures. 2052.222-70 Nondiscrimination because of age. 2052.231-70 Precontract costs. 2052.235-70 Publication of research results. 2052.235.71 Publication of research results~ universities. 2052.235-72 Safety, health, and fire protection. 99

AUTHORITY: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b). Subpart 2052.2 Text of Provisions and Clauses §2052.200 Authority. §2052.204-70 Security. As prescribed ~t §2004.404(a), insert the following clause in applicable solicitations and contracts: security (a} Security/Classification Requirements Form. The attached NRC Form 187 (See Section J for List of Attachments) furnishes the basis for providing security and classification requirements to prime contractors, subcontractors, or others (e.g., bidders} who have or may have an NRC contractual relationship that requires access to classified information or matter, access on a continuing basis (in excess of 90 or more days} to NRC Headquarters controlled buildings, or otherwise requires NRC photo identification or card-key badges. (b} It is the contractor's duty to safeguard National Security Information, Restricted Data, and Formerly Restricted Data. The contractor shall, in accordance with the Convnission's security regulations and requirements, be responsible for safeguarding National Security Information, Restricted Data, and Formerly Restricted Data, and for protecting against sabotage, espionage, loss, and theft, the classified documents and material in 100

the contractor's possession in connection with the performance of work under this contract. Except as otherwise expressly provided in this contract, the contractor shall, upon completion or termination of this contract, 'transmit to the Commission any classified matter in the possession of the contractor or any person under the contractor's control in connection with performance of this contract. If retention by the contractor of any classified matter is required after the completion or termination of the contract and the retention

               ~- -  -..---

is approved by the contracting officer, the contractor shall complete a certificate of possession to be furnished to the Co11111ission specifying the , classified matter to be retained. The certification must identify the items and types or categories of matter retained, the conditions governing the retention of the matter and their period of retention, if known. If the retention is approved by the contracting officer, the security provisions of the contract continue to be applicable to the matter retained. (c) In connection with the performance of the work under this contract, the contractor may be furnished,, or may develop or acquire, proprietary data {trade secrets) or confidential or privileged technical, business, or financial information, including Commission plans, policies, reports, financial plans, internal data protected by the Privacy.Act of 1974 (Pub. L. 93-579), or other information which has not been released to the public or has been determined by the Convnission to be otherwise exempt from disclosure to the public. The contractor agrees to hold.the information in confidence and not to directly or indirectly duplicate, disseminate, or disclose the information in whole or in part to any other person or organization except as may be necessary to perform the work under this contract. The contractor agrees to return the information to the Commission or otherwise dispose of it at. the direction of the contracting officer *. ,. 101

Failure to comply with this clause is grounds for tennination of this contract. (d) Regulations. The contractor agrees to conform to all security regulations and requirements of the Co111T1ission. (e) Definition of National Security Information. The term National Security Information, as used in this clause, means information that has been determined pursuant to Executive Order 12356 or any predecessor order to require protection against unauthorized disclosure and that is so designated. (f} Definition of Restricted Data. The term Restricted Data, as used in this clause, means all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but does not include data declassified or removed from the Restricted Data category pursuant to Section 142 of the Atomic Energy Act of 1954, as amended. (g} Definition of Formerly Restricted Data. The term Formerly Restricted Data, as used in this clause, means all data removed from the Restricted Data category under Section 142-d of the Atomic Energy Act of 1954, as amended. (h} Security clearance personnel. The contractor may not permit any individual to have access to Restricted Data, Formerly Restricted Data, or other classified information, except in accordance with the Atomic Energy Act of 1954, as amended, and the Commission's regulations or requirements applicable to the particular type or category of classified information to which access is required. The contractor shall also execute a Standard Form 102

312, Classified Information Nondisclosure Agreement, when access to classified information ls required. (i) Criminal liabilities. It is understood that disclosure of National Security Information, Restricted Data, and Formerly Restricted Data, relating to the work or services ordered hereunder to any person not entitled to receive it, or failure to safeguard any Restricted Data, Formerly Restricted Data, or any other classified matter that may come to the contractor or any person under the contractor's control in con_nection with work under this contract, may subject the contractor, its agents, employees,

• - or subcontractors to criminal liability under the laws of the United States.

(See the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq.; 18 U.S.C. 793 and 794; and Executive Order 12356.) (j) Subcontracts and purchase orders. Except as otherwise authorized in writing by the contracting officer, the contractor shall insert provisions similar to the foregoing in all subcontracts and purchase orders under this contract. (k) In performing the contract work, the contractor shall classify all documents, material, and equipment originated or generated by the contractor in accordance with guidance issued by the Comnission. Every subcontract and purchase order issued hereunder involving the origination or generation of classified documents, material, and equipment must provide that the subcontractor or supplier assign classification to all documents, material, and equipment in accordance with guidance furnish.ed by the contractor. (End of Clause} 103

§2052.204-71 Site access badge requirements. As prescribed at §2004.404(b), insert the following clause in applicable solicitations and contracts: Site Access Badge Requirement During the life of this contract, the rights of ingress and egress for contractor personnel must be made available as required. In this regard, all contractor personnel whose duties under this contract require their presence on-site shall be clearly identifiable by a distinctive badge furnished by the Government. The Project Officer shall assist the contractor in obtaining the badges for the contractor personnel. It is the sole responsibility of the contractor to ensure that each employee has proper identification at all times. All prescribed identification must be immediately delivered to the Security Office for cancellation or disposition upon.the termination of employment of any contractor personnel. Contractor personnel must have this identification in their possession during on-site performance under this contract. It is the contractor's duty to assure that contractor personnel enter only those work areas necessary for performance of contract work, and to assure the safeguarding of any Government records or data that contractor personnel may come into contact with. (End of Clause)

§2052.209-70      Qualifications of contract employees.

104

As prescribed at §2009.105-70, insert the following provision in applicable solicitations: Qualifications of Contract Employees The offerer hereby certifies by submission of ,this offer that all representations made regarding *its empioyees, proposed subcontractor . personnel, and consultants are accurate .. (End of Provision) §.2052.209-71 Current/former agency employee involvement. As prescribed*at §2009.105-70, insert the following provision in applicable solicitations: Current/Former Agency Employee Involvement

     . (a)   The following representation is required by the NRC Acquisition Regulation 2009.105-70(b). It is not NRC policy to encourage offerers and contractors to propose current/former agency employees to perform work under NRC contracts, and as set forth in the above cited provision, the use of such employees may, under certain conditions, adversely affect NRC's consideration of non-competitive proposals and task orders.

(b) The offerer hereby certifies that there ( ) are (,) are no current/former NRC employees (including special Government employees performing services as ~xpe~ts, advisors, consultants, or members of advisory

                                                   .. I 

105

committees) who have been or will be involved, directly or indirectly, in developing the offer, or in negotiating on behalf of the offeror, or in managing, administering, or performing any contract, consultant agreement, or subcontract re~ulting from this offer. For each individual so identified, the Technical and Management proposal must contain, as a separate attachment, the name of the individual, the individual's title while employed by the NRC, the date individual left NRC, .and brief description of the individual's role under this proposal. (End of Provi~ion) §2052.209-72 Contractor organizational conflicts of interest (representation}. As prescribed in §2009.570-4(b) and 2009.570-8, insert the following provision in applicable solicitations: Contractor Organizational Conflicts of Interest Representation I represent to the best of my knowledge and belief that: The award to

             -----------------of a contract                            or the modification of an existing contract does/ / does not/ / involve situations or relationships of the type set forth in 48 CFR 2009.570-J(b).

(a) If the representation, as completed, indicates that situations or relationships of the type set forth in 48 CFR 2009.570-J(b) are involved, or the contracting officer otherwise determines that potential organizational 106

conflicts of interest exist, the offeror shall provide a statement in writing which describes in a concise *manner all relevant factors bearing on his representation to the contracting officer. If the contracting officer determines that .organizational conflicts exist, the following actions may be taken: (1) Impose appropriate conditions which avoid such conflicts, (2) Disqualify the offeror, or (3) Determine that it is otherwise in the best interest of the United States to seek award of the contract under the waiver provisions of 48 CFR 2009-570-9. (b) The refusal to provide the representation required by 48 CFR 2009.570-4{b), or upon request of the contracting officer, the facts required by 48 CFR 2009.570-3{b), must result in disqualification of the offeror for award. {End of Provision)

§2052.209-73      Contractor organizational conflicts of interest.

As prescribed at §2009.570-S(a) and 2009-570-8, insert the following clause in all applicable solicitations and contracts: 107

Contractor Organizational Conflicts of Interest (a) Purpose. The primary purpose of this clause is to aid in ensuring that the contractor: (1) Is not placed in a conflicting role because of current or planned interests (financial, contractual, organizational, or otherwise) which relate to the work under this contract; and (2) Does not obtain an unfair competitive advantage over other parties by virtue of its performance of this contract. (b) Scope. The restrictions described apply to performance or participation by the contractor, as defined in 48 CFR 2009.570-2 in the activities covered by this clause. {c) Work for others. (1) Notwithstanding any other provision of this contract, during the term of this contract the contractor agrees to forego entering into consulting or other contractual arrangements with any firm or organization, the result of which may give rise to a conflict of interest with respect to the work being performed under this contract. The contractor shall ensure that all employees under this contract abide by the provision of this clause. If the contractor has reason to believe with respect to itself or any employee that any proposed consultant or other contractual arrangement with any firm or organization may involve a potential conflict of interest, the contractor shall obtain the I 108

written approval of the contracting officer before the execution of such contractual arrangement. (2) The contractor may not represent, assist, or otherwise support an NRC licensee or applicant undergoing an NRC audit, inspection, or review where the activities that are the subject of the audit, inspection or review are the same as or substantially similar to the services within the scope of this contract (or task order as appropriate), except where the NRC licensee or applicant.requires the contractor's support to explain or defend the contractor's prior work for the utility or other entity which NRC questions. (3) When the contractor performs work for the NRC under this contract at any NRC licensee or applicant site, the contractor shall neither solicit nor perform work in the same or similar technical area for that licensee or applicant org~nization *for a p'erfod _commencing with the award of the task order or beginning of work on the site (if not a task order contract) and ending one year after completion of all work under the associated task order, or last time at the site (if not a task order contract). J (4) When the contractor performs work for the NRC under this contract at any NRC licensee or applicant ~ite, (i) The contractor may not solicit work at that site for that* licensee or<applicant during the period of performance of the task order or the contract, as appropriate.

           *(ii). The contractor may not perform work at that site for that 1-fcensee or applicint *during the period of performance of the task order or the contract, as appropriate, and for one year thereafter.

(iii) Notwithstanding the foregoing, the contracting officer may authorize the contractor to solicit or perform this type of work (except'work in the -same or similar technical area) if the contract~ ng officer determines 109

that the situation will not pose a potential for technical bias or unfair competitive advantage. (d) Disclosure after award. (1) The contractor warrants that to the best of its knowledge and belief, and except as otherwise set forth in this contract, it does not have any organizational conflicts of interest as defined in 48 CFR 2009.570-2. (2) The contractor.agrees that, if after award, it discovers organizational conflicts of interest with respect to this contract, it shall make an immediate and full disclosure in writing to the contracting officer. This statement must include a description of the action which the contractor has taken or proposes to take to avoid or mitigate such conflicts. The NRC may, however, terminate the contract if termination is in the best interest of the government. (3) It is recognized that the scope of work of a task-order-type contract necessarily ~ncompasses a broad spectrum of activities. Consequently, if this is a task-order-type contract, the contractor agrees

• that it will disclose all proposed new work involving NRC licensees or applicants which comes within the scope of work of the underlying contract.

Further, if this contract involves work at a licensee or applicant site, the contractor agrees to exercise diligence to-.discover and disclose any new work at that licensee or applicant site. This disclosure must be made before the submission of a bid or proposal to the utility or other regulated entity and must be received by the NRC at least 15 days before the proposed award date in any event, unless a written justification demonstrating urgency and due diligence to discover and disclose is provided by the contractor and approved by the contracting officer. The disclosure must include the statement of work, the dollar value of the proposed contract, and any other documents that are needed to fully describe the proposed work for the regulated utility or 110

other regulated entity. NRC may deny approval of the disclosed work only when the NRC has issued a task order which includes the technical area and, if site-specific, the site, or ha~ plans to issue_a task order which includes the technical area and, if site-specific, the site, or when the work violates paragraphs (c}(2), {c)(3) or {c){4) of this section. (e) Access to and use of information. (1) If in the performance of this contract, the contractor obtains access to information, such as NRC plans, policies, reports, studies, financial plans, internal data protected by the Privacy Act of 1974 (5 U.S.C. Section 552a (1988)), or the Freedom of Infonnation Act (5 U.S.C. Section 552 (1986)), the contractor agrees not to: (i) Use this information for any private purpose until the information has been re 1eased to the pub l i c,; (ii) Compete for work for the Commission based on the information. for a period of six months after either the completion of this contract or the release of the information to the public, whichever is first; (iii) Submit an unsolicited proposal to the Government based on the information until o~e year after the release of the information to the public; or (iv) Release the information without prior written approval by the contracting officer unless the* information has previously been released to the public by the NRC. 111

(2) In addition, the contractor*agrees that, g to the extent it receives or is given access to proprietary data, data protected by the Privacy Att of 1974 {5 U.S.C. Sect'ion 552a (1988)), or the Freedom of Information Act (5 , u:s.c. Section '552 (1986)), or other confi,dential or priviieged tech~ical, _business, or financial information under this cqntract, the contractor shall treat the information in accordance with restrictions placed on use of the i nfprmat ion. . ' (3) . Subject to patent and security provj~ions of this contract, the contractor shall have the right to use technicar data it produces under this contrac~ for private purpos*es provided that all requirements of this contract

• have been met.

(f) Subcontracts. Except as. , provided in 48 CFR'2009.570-2, the contractor shall include this clause; includin~ this paragraph, in

.subcontracts of any tier.       The terms contract, contractor, and contractjng officer, must be appropriately modified to preserve the Government's rights.
                                                                                 ~

(g) Remedies. For breach of any of the above restrictions, or for

                                      * 'I intentional nondisclosure or.misrepresentatio~ of any relevant interest required to be disclosed concerning this contract or for such erroneous
  -   I t    '  *

• representations that necessarily imply bad faith, the Government .may terminate the contract f~r ~efault, disqualify the contractor*from subsequent contractual efforts; and pursue 'other r~medi es permi tte'd by law or this contract:

(h) Waiver. A.\equest for waiver,µnder this clause must be. directed in writing to the contracting offi~er in accordance with the proced~res outlined in 48 CFR 2009.570-9. 112

                                                     'I

(i) Follow-on effort. The contractor shall be ineligible to participate in NRC contracts, subcontracts, or proposals therefor (solicited or unsolicited), which stem directly from the contractor's performance of work under this contract. Furthermore, unless so directed in writing by the contracting officer, the contractor may not perform any technical consulting or management support services work or evaluation activities under this contract on any of its products or services or the products or services of

                     -  . ~ - --

another firm if the contractor has been substantially involved in the development or marketing of the products or services. (1) If the contractor, under this contract, prepares a complete or essentially complete statement of work qr specifications, the contractor is not eligible to perform or participate in the initial contractual effort which is based on the statement of work or specifications. The contractor may not incorporate its products or services in the statement of work or specifications unless so directed in writing by the contracting officer, in which case the restrictions in this paragraph do not apply. (2) Nothing in this paragraph precludes the contractor from offering or selling its standard corrmercial items to the Government. (End of Clause} §2052.210-70 Brand name products or equal. As prescribed at §2010.004, insert the following clause in applicable solicitations and contracts: 113

Brand Name Products or Equal Offerers {proposers) offering other than brand name items identified herein should furnish with their offers' adequate information to ensure that a

*determination can be made as to quality of the produGt(s) offered.
 §2052.210-71 Drawings, designs, specifications, and other data.

As prescribed at §2010.011, the following clause shall be submitted in applicable solicitations and contracts: Drawings, Designs, Specifications, and Other Data All drawings, sketches, designs, design data, specifications, notebooks, technical and scientific data, and all photographs, negatives, reports, findings, recommendations, other data and memoranda of every description

• relating thereto, as well as all copies of the foregoing relating to the work or any part thereto, are subject to inspection by the Commission at all reasonable times.

             ,*      Inspection of the proper facilities must be afforded the Commission by the contractor and its subcontractors. These data are the property of the Government and may be used by the Government for any purpose whatsoever without any claim on the part of the contractor and its subcontractors and vendors for additional compeosation and must, subject to the right of the contractor to retain a copy of the material for its own use, be delivered to the Government, or otherwise disposed of by the contractor as the contracting officer may direct during the progress of the work or upon completion or termination of this contract. The contractor's right of 114

retention and use is subject to the security, patent, and use of information provisions, if any, of this contract. (End of Clause) §2052.212-70 Preparation of technical reports.

     -As prescr16ed--a*f                       ---               - -

r2012.to4.:70Ta>, insert the clause in applicable

                                                                            ~

solicitations and contracts: Preparation of Technical Reports All technical reports required by Section C and all Technical Progress Reports required by Section Fare to be prepared in accordance with the attached Management*Directive 3.8, "Unclassified Contractor and Grantee Publications in the NUREG Series." Management Directive 3.8 is not applicable to any C'ontractor Spending Plan (CSP) and any Financial Status Report that may be included in this contract. (See Section J for List of Attachments). {End of Clause) §2052.212-71 Technical progress report. As prescribed at §2012.104-70{b), insert the following clause in applicable solicitations and contracts: Technical Progress Report 115

The contractor shall' provide a *monthly Technical Progress Report to the l project office~ and the contracti~g officer. The report is due* within 15 calendar days after the end of the report period and must identify the title of the project, the contract number, Financial Identification Number (FI~), project manager and/or principal investigator, the contract period of performance,, and the period covered by the report. Each report must include the following for each discrete t~sk/task order: I

    * (a)   A li~ting of the efforts completed during the period, and milestones reached or, if missed, an explanation provided; (b)   An1 problems or delays encountered or anticipated and recommendations for reso l ut i,on. If the recommended resolution involves a contract modiftcation, e.g., change in work require~ents, level of effo~t (cost) or schedule delay, the contractor* shall submit a separate letter to the I

contracting officer jdentifying the re9uired change and estimated cost impact. l {c} A summary of progress to date; and (d) Plans for the next reporting period. {End of Clause}

§2052.212-72       Financial status report.

As prescribed *at §2012.104-70{c), insert the foil owing clause in applicable solicitations and contracts. 116

Einanci~J status Report The contractor shall provide a monthly Financial Status Report to the project officer and the contracting officer. The report is due within 15 calendar days after the end of the report period and must identify the title of the project, the contract number, Financial Identification Number {FIN), project manager and/or principal investigator, the contract period of performance, and the period covered by the report. Each report must include the following for each discrete task: (a) Provide total estimated cost (value) of the project as reflected in the contract, the amount of funds available in the contract to date, and the balance of funds required to complete the work as follows: (1) Total estimated contract amount. (2) Total funds obligated to date. (3) Total costs incurred this reporting period. (4) Total costs incurred to date. {5) Provide a detail of all direct and indirect costs incurred during the reporting period for the entire contract or each task, if it is a task ordering contract. (6) Balance of obligations remaining. (7) Balance of funds required to complete contract/task order. 117

**I.-

(8) .Contractor Spending Pl an (CSP)* status:

                   ~  '

Ci) ,Projected percentage.of completi'on cumulative through the report

      * ;   " I                                              ¥ period for the project/task order.as reflected in the £urrent*CSP. * '

(11) Indicate if there has been a significant change in the original CSP projection in either dollars or.percentage of _completion. Identify the. change; the* rea'sons for the change,* whether there *is any projected over,:-un, and when additional funds would be required.

                                                                   . If ther~ ~a.v~   ,been no changes to l
      , , th~ original NRC-approved_ CSP projections, a .written statement to that effect

'I' f ii sufficient io lieu of submitting.a detailed response to item 8.

                    -~(9)       A re,vised CSP is requir~d with the Financial' Status Report whenever th~ ~ontractor or the contracting officer has reason to believe that the tot a1' cost for performance of this contract ~i 11 be. either g:eafer or substantially less than wh~t had been previously estimated.                                   'l
                         ~  '                                                                                I,

{b) . If the data in this report indicates a need for additional funding beyond that al'ready obligated, thi~ ir;iformation may only be u,sed. ,as ..support to

       . I         \

• the official

                      .          request for funding required in accordance with  '

the Limitation of Cost {LOC) Clause (FAR 52.232-20) or the Limitation of Funds (LOF) Clause FAR 5'2.232..'.22.'. (End of Claus_e) 2052.212.73 Fina'ncial Status Report - Alter~ate 1 .. Financial Status Report - 'Alternate 1

              .  .                                             118                    '  '.

As prescribed in §2012.104-70(c), insert the following provision in applicable solicitations: The Contractor shall provide a monthly Financial Status Report to the Project Officer and the Contracting Officer. The report is due within 15 calendar days after the end of the report period and shall identify the title of the project, the contract number, project manager and/or principal investigator, the contract period of performance, and the period covered by the report. Each report shall include the following for each discrete task: (a) Provide total estimated cost (value) of the project as reflected in the contract, the amount of funds available in the contract to date, and the balance of funds required to complete the work as follows: (1) Total Estimated Contract Amount. (2) Total Funds Obligated To Date. - (3) Total Costs Incurred This Reporting Period.

• (4}

{5) Total Costs Incurred to Date. Balance of Obligations Remaining. (6) Balance of Funds Required To Complete Contract. (b) Detail of all direct and indirect costs incurred during the reporting period for each task. 119

[End of Clause] I. '

            §-2os2.214..:70,            PreQid conference.

As prescribed at *§2014.201-670(a), insert the following provision in

              ' I applicable solicitations:

Prebid Conference

 '   '                 (a)      A.prebid conference is scheduled for:*

If Date: Location: Time: (b) This conference is to afford interested parties_ an opp.o.rtunity to I

• present question~. ~nd. clarify uncerta1nties: 'regarding this solicitation. You are requested to mail written questions concerning those areas of uncertainty

                                                                        \

I * ' ~ * \. .. : ., whi£h, in your o~inion, require clarification or correction. You*are encouraged to s~bmi~ your questions in writi~g not later than* working day(s) prio~ to the conference date. Receipt of , late qu~stions may result in. the quest.ions not being answered at the conference al~hough they will be cbn'si'dered in preparing any necessary amendment to the solicitation. If you pl' an .to attend the *conference, not,i f,y

• by letter or* te 1ephone * , no later
• I than close of business*. Notification of your intention to attend is

                                                              , ..   ,.                               ,I essential in,the event the conference.is rescheduled or cancel~d.

1' .. ' (Optional statem~nt: Due to space limitations, each potential bidder is limiied to*

        ~ . _representatives at the conf ere nee.}

) I 120

(c) Written questions must be submitted to: U.S. Nuclear Regulatory Colllllission Division of Contracts and Property Management ATTN:

• Mail Stop
• Washington, DC 20555 (d) The envelope must be marked "Solicitation No. * /Prebid Conference."

(e) A transcript of the conference will be furnished to all prospective offerers through the issuance of an amendment to the solicitation.

              *To be incorporated into the solicitation.

(End of Provision) - §2052.214-71 Bidder qualifications and past experiences.

• As prescribed in §2014.201-670(b), insert the following provision in applicable solicitations:

Bidder Qualifications and Past Experiences (a) The bidder shall list* previous/current contracts for the same or similar products/services. This information will assist the contracting officer in his/her Determination of Responsibility. Lack of previous/current 121

contracts for same or similar products/services or failure to submit this information will not necessarily result in an unfavorable Determination of Res pons i bil i ty. (1) Contract No.: Name and address of Government agency or commercial entity: Point of Contact and Telephone Number: (2) Contract No.: Name and address of Government agency or commercial entity: Point of Contact and Telephone Number: (3) Contract No.: Name and address of Government agency or commercial entity: 122

Point of Contact and Telephone Number: (b) The bidder shall also provide the name, title and full telephone number for its technical representative and contracts/business representative: (1) Technical Representative Name ____________ Title Te 1ephone No *..1,,___,J._ _ _ _ _ __ (2) Contracts/Business Representative Name Title Telephone No. ( }

                  *To be incorporated into the solicitation (End of Provision)

§2052.214-72 Bid evaluation. As prescribed at §2014.201-670(b}, insert the following provision in applicable solicitations: Bid Evaluation 123

(a) Award will be made to th.~.t ~esponsive, responsible .. biqder within the meaning* *of .FAR Subpart 9 .1 whose total bid amount, as set forth .by the

bidder in Sect1on B of th~s Invitatio~ f?r Jid, constitutes the lowest overall evaluated final contract price to the Government based upon the requirement~ *

    .as set*forth in the schedule.                     Bids will be ?~aJuated for purposes of award by first ascertai~ing the sum of the total amount for ea*ch of* the items specified i.11 Section B of this solicitation. This w-i'll con'st1tute the bidder's "Total Bid Amount\"
            .(b)        Bidders shall insert a definite prite or indicate "no chirge~ in

• l the blank space provided for each item and/or sub-item listed in Section B.
• Unl~ss expressly provided ~or herein, no additional charge will be iilowed_for work performed-under the contract other.than the unit prices " stipulated for each such item and/or sub-item.
• 7 I

{c) Any bid whi~h ts materiaily unbalanced as to price for the ( -4 ' \ ~ separate items specified {~ Section B of this IFB may be *rejected as nonresponsive. An unbal~nced bid is defined'as on~ which is based on prices

      ~      *     *  :   '                         j.

which, in the opinion of the NRc. , are significa.ntly less than cost *for some work and/or,,prices that may be significantly overstate~ for other work.,, (d) . Separation charges, in ~ny form,* are not solicited. Bids contai'n*in'g charges for discontinuan*ce, termination, failure to e~ercise an option, or for any other purpose*~;)1 'cause . the bid to be ~eiect~d as nonresponsive. , r ' (e) A preaward on-*site survey of the bidder's facilities, equipment, etc.,.in accordance with:fAR 9.105 and9.'106 may be made by representatives of 1 the Comrnj ss.i on, ,for the purpose of determi nJ ng whether the> bidder is

• 124 I*

responsible within the meaning of FAR 9.1, and whether the bidder possesses qualifications that are conducive to the production of work that will meet the requirements, specifications, and provisions of this contract. Also, if requested by the Commission, the prospective contractor may be required to submit statements within* hours after receiving the request: {I) Concerning their ability to meet any of the minimum standards set forth in FAR 9.104, (2) Samples of work, and (3) Names and addresses of additional clients, Government agencies and/or commercial firms which the bidder is now doing or had done business with. (f) Notwithstanding paragraph (b) of this section, the award of any contract resulting from this solicitation will be made on an "all or none" basis. Thus, bids submitted on fewer than the items listed in Section B of this IFB, or on fewer than the estimated quantity, will cause the bid to be* rejected as nonresponsive.

                  *To be inserted into solicitation.

(End of Provision) §2052.214-73 Timely receipt of bids. 125

As prescribed at §?Ol4.670(b), insert the following provision in

• applicable solicitations:

Timely Receipt of Bids

     , , I i' ,

Because the NRC is a secure facility with perimeter access control, bidders shall allow additional time for hand delivery (including express mail and delivery services) of bids to ensure that they are timely received in the depository at the address shown in Item 9 on the Standard Form 33. (Enq of'Provision)

 §2052.214-74         Disposition of bids.

As prescribed at §2014.670(b), insert the following provision in appli~able*solicitations: Disposition of Bids After award of the contract, one copy of each unsuccessful bid will be retained by NRC's, Division of Contracts and Property Management, in accordance with the General Records Schedule 3(5Y(b). Unless retur*n of the additional

• copie's of the bid *is *requested by the bidder upon submission*of th~. bid, all other copies will be destroyed. This.request should appear in a cover letter accompanying the bid.

(End of Provision) I' 126

§2052.215-70 Key personnel. As prescribed at §2015.407-70(a), insert the following clause in applicable solicitations and contracts: Key Personnel (a) The following individuals are considered to be essential to the successful performance of the work hereunder: The contractor agrees that personnel may not be removed from the contract work or replaced without compliance with paragraphs (b) and (c) of this section. (b) If one or more of the key personnel, for whatever reason, becomes, or is expected to become, unavailable for work under this contract for a continuous period exceeding 30 work days, or is expected to devote substantially less effort to the work than indicated in the proposal or initially anticipated, the contractor shall immediately notify the contracting officer and shall, subject to the concurrence of the contracting officer, promptly replace the personnel with personnel of at least substantially equal ability and qualifications. (c) Each request for approval of substitutions must be in writing and contain a detailed explanation of the circumstances necessitating the proposed substitutions. The request must also contain a complete resume for the 127

proposed sub~titute and other information requested or needed by the contracting officer to evaluate the proposed substitution. Th~ contracting officer or his/her authorized representative shall evaluate the, request and promptly notify the contractor of his or her approval or disapproval in* writing. (d) If the contract~ng officer determines that suitable and timely replacement of k~y personnel who have been reassigned, terminated, or have otherwise becom~ unavailable for the contract work is not reasonably forthcoming, or that the resultant reducti~n of productive effort would be so substantial as to impair the successful completion of the contract or the service order, the contract may be terminated by the contracting officer for t default or for the convenience of the Government, as a~propriate. I~ ih~ contracting officer finds ~he contractor at fault for the condition, the. contract price or fixed fee may be.equitably adjusted downward to compensate the Government for any resultant delay, loss, or damage. (End of Clause)

      *Tobe incorporated into any resultant contract
§2052.215-71     Project officer authority.*

As ~rescribed in §2015.407-70(a)(2)(i), insert the following clause in applicable solicitations and contracts: Project Offjcer Authorjty 128

{a) The contracting officer's authorized representative hereinafter referred to as the project officer for this contract is: Name:

• Address:
• Telephone Number: *

(b) Performance of the work under this contract is subject to the technical direction of the NRC project officer. The term technical direction is defined to include the following: (1) Technical direction to the contractor which shifts work emphasis between areas of work or tasks, fills in details, or otherwise serves to accomplish the contractual statement of work. (2) Provide advice and guidance to the contractor in the preparation of drawings, specifications, or technical portions of the work description. (3) Review and, where required by the contract, approval of technical reports, drawings, specifications, and technical information to be delivered by the contractor to the Government under the contract. (c) Technical direction must be within the general statement of work stated in the contract. The project officer does not have the authority to and may not issue any technical direction which: (1) Constitutes an assignment of work outside the general scope of the contract. 129

• t * '

(2) Constitutes a ch~nge as defined*in the ~changes" clause of this contract .. (3) In any way-causes an increase or decrease in the total estimated

                                                                          ')    \'

contract cost, the fixed fee, if any, or the time required for contract

• I performance.,

(4) Changes any of the ~xpressed terms:, conditions, or spec.ffi'c'ations of the contract. Terminates the contract, settles any claim or dispute arising under the contract, or issues, any unilateral directive whatev~r. (d}' All technical directions must be issued in writing by the:,project

     , officer *or must be confirmed by the project officer in writing within ten (Io}

working days after verbal i ss.uance. A copy of the written* 'direction ,must be - f.urnished to the contracting officer. , (e) The contractor shall proceed p~omptly with the performance of technical d1reGtions duly issued by the project officer in the manner

      'prescribed by this clause and within the project officer's authority under the provisions of this.clause.

(f) dif, in th~ opinion of.the contractor~ any instructiorr or directiorr

      ,issued by the project officer is within one of the *categories as defin~d in paragraph (c} of'this section., the contractor may not pr_qceed but shal.l notify the contracting officer in writing within five (5) working days after'the

. \ receipt of any instruction or direction and shall request the contracting

                               .: r   '

officer to modify the contraet accordingly. Upon recei_ving the notification 130

from the contractor, the contracting officer shall issue an appropriate contract modification or advise the contractor in writing that, in trye contracting officer's opinion, the technical direction is within the scope of this article and does not constitute a change under the "Changes" clause. (g) Any unauthorized conmitment or direction issued by the project officer may result in an unnecessary delay in the contractor's performance and

                                                            -   -*r -*--- ----

may even result in the contrac~or expending funds for unallowable costs under the contract. (h) A failure of the parties to agre2e upon the nature of the instruction or direction or upon the contract action to be taken.with respect there to is subject to §52.233 Disputes. (i) In addition to providing technical direction as defined in paragraph (b) of the section, the project officer shall: (1) Monitor the contractor's technical progress, including surveillance and assessment of performance, and recormnend to the contracting officer changes in requirements. (2) Assist the contractor in the resolution of technical problems encountered during performance. (3) Review all costs requested for reimbursement by the contractor and submit to the contracting officer reconmendations for approval, disapproval, 131

or suspension of payment for supplies and services required under this contract. (End of Clause)

          §2052.215-:-72       Project officer authority* - Alternate 1.
          \

As prescribed at §2015.407~70{2){ii), insert the following clause in applicable solicitations and contracts: . Project Office~ Authority - Alternate I (a) The contracting officer's authorized representative, hereinafter referred to as the project officer for this contract is: Name:

• Address:
• 1 l

         '.              Telephone Number: *

' I (b) ,The project officer shall: (1) Place delivery orders for items required under this contract. (2} Monitor contractor perfonnance and recommend to the contr~cting

                                                 '        t
       * *officer changes* in re qui rernents. -

(3) Inspect and accept products/services provided under the contract. 132

(4) Review all contractor invoices/vouchers requesting payment for products/services provided under the contract and make recommendations for approval, disapproval, or suspension. (c) The project officer may not make changes to the express terms and conditions of this contract.

                 *To be incorporated into any resultant contract (End of Clause)

§2052.215-73 Timely receipt of proposals. As prescribed in §2015.407-?0(a), insert the following provision in applicable solicitations: Timely Receipt of Proposals Because NRC is a secure facility with perimeter access control, offerers shall allow additional time for hand delivery (including express mail and delivery services) of proposals to ensure that they are timely received in the depository at the address shown in Item 9 on the Standard Form 33. {End of Provision) §2052.215-74 Award notification and commitment of public funds 133

As prescribed at §2015.407-JO(a), insert the'following clause.in applicable solicitations and contracts: Award Notification and Commitment of Public Funds (a) All offerors will be notified of their selection or nonselection as *soon as possible. Formal notification of nonselection for unrestricted awards may not be made until a contract has been awarded. Pursuant to requirements of FAR. 15.100l{b)(2), preliminary notification will be provided before the award for small business set-aside procurements on negotiated procurements. (b) It is also brought to your attention that the contracting officer is the only individual who can legally commit the NRC to the expenditure of public funds in connection with this procurement. This means that unless provided in a contract document or specifically authorized by the contra~ting officer, NRC technical personnel may not issue contract modifications, give informal contractual commitments, or otherwise bind, convnit, or obligate the NRC contractually. Informal contractual convnitments include: (1) Encouraging a potential contractor to incur costs prior to receiving a contract; (2) Requesting or requiring a contractor to make changes under a contract without formal contract modifications; (3) Encouraging a co~tractor to incur costs under a cost-reimbursable. contract in excess of those costs contractually allowable; and' 134

(4) Committing the Government to a course of action with regard to a potential contract, contract change, claim, or dispute. (End of Clause} §2052.215-75 Disposition of proposals. As prescribed in §2015.407-70(a)(5}, insert the following provision in applicable solicitations: Disposition of Proposals After award of the contract, one copy of each unsuccessful proposal is retained by the NRC's Division of Contracts and Property Management in accordance with the General Records Schedule 3(5}(b). Unless return of the additional copies of the proposals is requested by the offeror upon submission of proposal, all other copies will be destroyed. This request should appear in a cover letter accompanying the proposal. {End of Provision) §2052.215-76 Proposal presentation and format. As prescribed at §2015.407-70(b), insert the following provision in applicable solicitations: Proposal Presentation and Format 135

(a} Proposals must be typed, printed, or reproduced on letter-size paper and each copy must be legible ..

                                                                                              '     ! (
          *.*          (b)      Proposals in response.to this Request for Proposal must be submitted'in'the following three (3) separate and distinct'parts:

I. f '

                     , (1)      rw*o     (2) origin~l signed copies of this solicitation package.                  A*11 applicable sections must be completed by the offerer.

(2) One {1) origfoal and* copies of the Cost Proposal ; 11 11 I ** I , (3} One (1} original and* cop{es of the "Technical and Managemert Proposal." *It> I (c) Correctness of the proposal. Caution--offerors are hereby notified that all info~mat~on provided in its proposals, including all

                                                                                                 'I I

resumes, must be accurate, truthful, and complete to the best of the offerer's

   'I       knowiedge and belief. The Commission will rely upon all ,representations mad*e*

• C by th~ offerer both in the eval~ation process and for the performance of the

            't' ,*                            '                                                         ~ '    t work by the offerer selected for award.                          The Commission ' may require .the;,

offerer to substantiate the credentials, education, and employment history of its employees, subco~tractor ' , ~ personnel, and consultants, through submission of copi'es of transcripts, diplomas, licenses, etc.

                   ' 7

{d) Cost proposal. *~ (1) The offerer shall u~e Standard Form 1411, Contracting Pricing,, Proposal Cover Sheet, i-n *submitting the Cost P'.oposa l . A copy of the for-m *and ihstructi,ons are ,attached to this' solicitationL The information mu'st inclyde, 1 136

                                                  '   I
                                                                     , I   I   'I

pertinent details sufficient to show the elements of cost upon which the total cost is predicted. The Cost Proposal must be submitted separately from the* Technical and Management Proposal. (2) When the offeror's estimated cost for the proposed work exceeds

     $100,000 and the duration of the contract period exceeds six months, the offerer shall submit a Contractor Spending Plan {CSP) as part of its cost proposal. Guidance for completing the CSP is attached.

(3) For any subcontract discussed under the Technical and Management Proposal, provide supporting documentation on the selection process, i.e. competitive vs. noncompetitive, and the cost evaluation. (e) Technical and management proposal. (1) The Technical and Management Proposal may not contain any reference to cost. Resource information, such as data concerning labor hours and categories, materials, subcontracts, travel, computer time, etc., must be included in the Technical and Management Proposal so that the offerer's. understanding of the scope of work may be evaluated. (2) The offerer shall submit with the Technical and Management Proposal full and complete information as set forth below to permit the Government to make a thorough evaluation and a sound determination that the proposed approach will have a reasonable likelihood of meeting the requirements and objectives of this procurement. (3) Statements which paraphrase the statement of work without co1m1unicating the specific approach proposed by the offerer or statements to 137

the effect that the offerer's understanding can or will comply with.the statement of work may be I construed as: an i ndi cation of' the offerer's 1ack of under~tanding of the statement of work and objectives. (4) The Technical and Management Propos~l must* be tailored to assure* that ~11 sections reflect a one-to-one relationship to the evaluation criteria. The following are examples of the *type of information that should be included in a technical and management proposal. (i} Discussion of the statement of work to substantiate the offeror's understan~ing of the requirement. {ii) Discussion of the proposed method of approach to meet the contract objectives. (iii} Discussion of potential problem area*s and the approach to be taken to resolve these areas. (iv,} Statements of any interpretations, require.ments, or assumptions ,* 'made by the offeror. (v) Discussion of support personnel and facilities available to*assi~t the professional. personnel. ('vi) Ident~fy "Key Personnel,"., and for the person(s) .~o identified,' specify the'percentage of time that will be corrmitted to other projects over the course.of the proposed contract period of performance.

                                               ,138

{vii) Resumes for all professional personnel, including subcontractors and consultants, to be utilized in the performance of any resulting contract. Include educational background, specific pertinent work experience, and a list of any pertinent publications authored by the individual. (viii) Description of the source of personnel required for performance of each task, including those not presently employed by the offeror. If any of the personnel are under con111itment, describe the terms of the convnitment(s). Note specifically the personnel that will be employed at time of contract award. {ix) If the offerer plans to obtain consultant services, explain the need for the services. List the proposed consultants by name, describe the work they will perform under this contract, and include related past experience. Individuals who are employees of the contractor or of the U.S. Government are prohibited from being paid as a consultant under this contract. (x) If the offerer plans to subcontract any of the work to be performed, list proposed subcontractors, if known, by name. Provide a detailed description of the work to be performed by the subcontractor, and supporting documentation of technical evaluation leading to the selection. (xi) Provide a detailed schedule for work to be performed and identification of significant milestones and completion dates for each subpart or task. (xii) Project scheduling and contingency planning demonstrating a logical progression and integration of the tasks to ensure completion within the performance period and without program slippage. 139

(xiii) Describe of the management organizational structure

                                                  )

delineating areas of responsibility and authority under the proposed effort. ,' Descri_be the relationship of the project organization to corporate manag~ment and to subcontractors,' if any. Discuss the functions and authorities of the project manager: {xiv) Procedures to periodically review in-house organizational. functions, program reviews and controls, and subsequent coordination with the NRC. (xv) Management controls expected to.be utilized to preclude a contract 4t cost growth. (xvi) The, offeror sha 11 list of any commitments ~i th other organization~, Government and/or commercial, for the same or similar effort. I (xvii) List of* previous contracts for the same or simil~r services, with *the name, title, and full telephone number of a crintact for each. {xviii) List of the name, title, and full t~lephone number for the proposer's technical representative and contracts/business representative. {xix) *_.,_,__ _* *___* *___* *___* *___*

• To be. incorporated into the solicitation

{End ~f Prqvision) 140

§2052.215-77 Proposal presentation and format,~ Alternate 1 (language for negotiated task order contracts.) As prescribed at §2015.407-70(b)(l), insert the following language in provision §2052.215-76. (d} Cost proposal. (1) The offerer shall provide a cost proposal based on the Estimated Level of Effort. The total estimated cost proposed by the offerer is used for evaluation purposes only. Any resultant contract, except a r~quirements contract, contains an overall cost ceiling whereby individual task orders may be issued. The cost and fee, if any, for each task order is individually negotiated and also contains a cost ceiling. §2052.215-78 Proposal presentation and format - Alternate .2 (language for negotiated fixed prices, labor hour, or time and materials contracts.) As prescribed at §2015.407-70{b)(2}, paragraph (d)(2) shall be deleted from the provision §2052.215-76. (End of Provision) §2052.215-79 Preproposal conference As prescribed at §2015.407-70(c), insert the following provision in applicable solicitations: 141

(a) A preproposal conference is scheduled for: Date:

• L.o~at ion:
• Time: *

(b) This conference is to afford interested parties _an .opportunity to present. questions and clarify uncertainties regardfog _this solicitation. You are requested to mail written questions concerning those *areas of uncertainty which, jn your opinion, require clarifjcation or correction.t You are encouraged to submit yo~r questions in' writing not later than* working day(s) prior to the conference date. Receipt of late questions may result in the questions not being answered at the conference although they will be considered in* pre.~aring any necessary "amendment to the solicitation. If you p1an* to attend the conference, notify

• by letter or telephone * , no*, later r
• than close of-business*. Notification of your intention to attend is.

essential in the event the conference is rescheduled or canceled. (Optional statement: Due to space limitations, each pot.~ntial proposer 'is limited to . *

     .representatives at the conference.)

(c) Written questions must be submitted to:

                    *u.s. Nuclear Regulatory Co1T111ission Division qf Contracts and Property* Management
                   . ATTN:

• Mail Stop *

' l

• Washington, DC' 20555 142

{d) The envelope must be marked "Solicitation No. * /Preproposal Conference." {e) A transcript of the conference will be furnished to all prospective offerors through the issuance of an amendment to the solicitation.

                  *To be incorporated into the solicitation.

(End of Provision) §2052.215-80 Travel reimbursement. As prescribed at §2015.407-70(d), insert the clauses or alternat~ in applicable solicitations and contracts: Travel Reimbursement. * (a) Totai expenditure for domestic travel may not exceed* without the prior approval of the contracting officer. {b} The contractor is encouraged to use Government contract airlines, AMTRAK rail services, and discount hotel/motel properties in order to reduce the cost of travel under this contract. The contracting officer shall, upon request, provide each traveler with a letter of identification which is* required in order to participate in this program. The Federal Travel Directory {FTD) identifies carriers, contract fares, schedules, payment conditions, and hotel/motel properties which offer their services and r~tes to Government contractor personnel traveling on official business under this 143

contract .. The FTD,; which is issued month.l~, .~~y_be purchased from the .u.s. Government Printing Office,'Washington, DC 20402. (c) The contractor will be reimbursed for reasonable travel costs incurred directly and specifical~y in the performance o.f t~,is contract. The cost l imitat-ions for travel costs *are determined in accordance with .the specific travel regulations cited in FAR 31.205-46, as are in effect on the date of the trip. Travel costs for research and related activities performed at*State *and'~onprofit institutions, iri accord~nce wit~ Section 12 ~f Pu~. L. 100-679, shall be charged in accordance J with the contractor's *institutional pol icy to th*e degree that the limitations of Office 9f Man~gement and. Bu~get {0MB) guidance . are not exceeded. Applicable . guidance documents include 0MB .

~ircular A-87, Cost Principles for State and Local Governments; 0MB Circular A-122, Cost Principl~s for Nonprofit Organizations; ~nd 0MB Circular A-21, Cost Principles for Educational Institutions.
                                                                                 ... J \.
     . (d)     When the Government changes the Federal !r~vel Regulations, or other- applicable regulations, it is the responsibility of the contractor to notify the contracting officer in acco~dance.wit~, the Limitations of Cost

• fl ' ..,
• clause of this contract if the contractor will be unable to make all of the appr*oved° .trips and remain within the cost -and fee 1imitations of this contract

~ue to the changis. f '

                     *To be incorporated into any resultant contract
                                    '  (   I                     *

(End of Clause)

 §2052.215-81        Travel approvals.

• t ' J 144

                          ' r

As prescribed in §2015.407-70(d), insert the following clause in applicable solicitations and contracts: Travel Approvals (a) All domestic travel requires the prior approval of the project officer. (b) All foreign travel must be approved in advance by the NRC on NRC Form 445 and must be in compliance with FAR 52.247-63 Preference for U.S. Flag Air Carriers. Foreign travel approval must be communicated in writing through the contracting officer. (End of Clause}

                 *To be incorporated into any resultant contract (End of Clause)

§2052.215.82 Contract award and evaluation of proposals. As prescribed in §2015.670{a), insert the following provision in applicable solicitations: Contract Award and Evaluation of Proposals (a) By use of numerical and narrative scoring techniques, proposals are evaluated against the evaluation factors specified in paragraph* below. 145

These factors are listed in their relative order of importance. Award is made to the offerer: (1) Whose proposal is technically acceptable; (2) Whpse technical/cost relationship is most advantageous to the Gove'.nment; and (3) Who is considered to be responsible within the meaning of Federal Acquisition Regulation Part 9.1. (b) Although cost is a factor in the evaluation of proposals, technical merit in the e~aluation criteria set forth below is a more significant factor in the selection of a contractor. Further, to be selected for an award, the proposed cost must be realistic and reasonable. (c) The Government may: (1) Reject any or all offers if the action is in the public interest; (2) Accept other than the lowest offer; and (3) Waive informalities and minor irregularities in offers received. (d) The Government may award a contract on the basis of initial offers received, without discussions. Therefore, each initial offer should contain the offerer's best terms from a cost or price and technical standpoints. 146

{e) A separate cost analysis is performed on each cost proposal. To provide a connon base for evaluation of cost proposals, the level of effort data must be expressed in staff hours. Where a Contractor Spending Plan (CSP) is required by other provisions of this solicitation, consideration is given to the Plan for completeness, reasonableness, and as a measure of effective management of the effort. (f) In making the above determination, an analysis is performed.by the Government that takes into consideration the results of the technical evaluation and cost analysis.

                  *Tobe incorporated into the solicitation.

(End of Provision) §2052.215-83 Contract award and evaluation of proposals - cost more important than technical merit. As prescribed at §2015.670(a), substitute the following paragraph for paragraph (b) in the clause at §2052.215.82: (b) Although technical merit in the evaluation criteria set forth below is a factor in the evaluation of proposals, cost is more a significant factor in the selection of a contractor. Further, to be selected for an award, the proposed cost must be realistic and reasonable.

§2052.215-84      Contract award and evaluation of proposals - cost and technical merit of equal value.

147

As prescribed at §2015.670a(2), substitute the followirlg paragraph for P.0iragraph (b) in the claus,e at §2052.21~.82:. (b) In the selection of a contractor, t~chnical

• merit *in ttie evaluation criteria set forth below and cost bear equal significance. To be selected for an award, the proposed,cost must be realistic and*reasonable.

 §2052.216.:.10      Level of effort.

As pr~scribed at* §2016:307-70(a),. insert.the following provision in applicable solicitations: Level of Effort ,. The NRC's estimate of the total effort for thi~ project is approximately* professional and* clerical staff-years .for the*duratiQn of

                                                      ~

• I

.this contratt'. Thi*s information is advisory and is not to be considered as the sole basis for the deYelopment of the staffing plan.           For the purposes of t~e Ghvernment estimate, 2000 hours constitute a staff year.**
                     *To be incorporated into any resultant contract (End of Provision)
   §2052.216-71       Indirect cost rates.,

I , *

                                              /  . '
       .*As prescribed at §2016.307-70(b), insert the following clause in

• t applicable soli~itations* and contracts:*

(' 148

• Indirect Cost Rates

{a) Pending the establishment of final indirect rates which must be negotiated based on audit of actual costs, the contractor shall be reimbursed for allowable indirect costs as follows: (b) The contracting officer may adjust the above rates as appropriate during the term of the contract upon acceptance of any revisions proposed by the contractor. It is the contractor's responsibility to notify the contracting officer in accordance with FAR 52.232-20, Limitation of Cost, or FAR 52.232-22, Limitation of Funds, as applicable, if these changes affect performance of work within the established cost or funding limitations.

            *To be incorporated into any resultant contract.

(End of Clause) §2052.216-72 Indirect cost rates - Alternate I. As prescribed at §2016.307-70(b), insert the following clause in applicable solicitations and contracts: Indirect Cost Rates - Alternate I The contractor is reimbursed fa~ allowable indirect costs in accordance with the following predetermined rates: 149

            *To be incorporated' into any resultant contract.                    r, (End of Clause}

§2052.216'-73 Indirect cost, ,rates - Alternate 2. As prescribed at *§2016.307-70(b}, insert the following clause in applicable solicitations and contracts: Indirect Cost Rates - Alternate 2 {a) For this contract, the amount reimbursable for'indirect costs is as follows:. (b) In the event that indirect rates developed by the cognizant audit activity on the basis of actual allowable costs are less than the ceiling rates, the rates established by the cognizant audits must apply. The Government may not be obligated to pay any additional amounts for indirect costs above the ceiling rates set forth above for the applicable period.

                   *To be incorporated into.any resultant contract.

(End of Clause}

§2052.216-74       Task order procedures.

• 150

As prescribed at §2016.506-70{a), insert the following clause in applicable solicitations and contracts: Task Order Procedures {a) Task order request for proposal. When a requirement within the ~_!:_O,P_~_ of work for this contract is identified, the contract 1ng officer sha 11 transmit to the contractor a Task Order Request for Proposal (TORP) which includes the following, as appropriate: (1) Scope of work/meetings/travel and deliverables; (2) Reporting requirements; {3) Period of performance - pl ace of performance; (4) Applicable special provisions; {5) Technical skills required; and (6} Estimated level of effort. {b} Task order prop*osal. By the date specified in the TORP, the contra~tor shall deliver to the contracting officer a written proposal that provides the following technical and cost information, as appropriate: 151 *

(1) Technical proposal content; (i) A discussion of the scope of work requirements to substantiate the contractor's understanding of the requirements of the task order and the contractor's propqsed method of approach to meet the objective of the order. (ii) Resumes for professional personnel proposed to be ut.ilized in the performance of any resulting task order. Include educational background, . specific pertinent work experience, and a list of any pertinent publications authored by the individual. (iii) Identification of administrative support personnel and/or 1 facilities that are needed to assist the professional personnel in completing work on the task order. (iv} Identification of "Key Personnel" and the number of staff hours that will be committed to completion of work on the task order. (2) Cost proposal. The contractor's cost proposal for each task order must be prepared using Standard Form 1411, Contract Pricing Proposal cover sheet. A copy of the form and instructions are attached to this contract.I Each task order cost proposal must be fully supported by cost and pr1cing data adequate to establish the reasonableness of the propos~d amounts. When the contractor's estimated cost for the proposed task order exceeds $100,000 and the period of performance exceeds six months, the contractor mar be required to submit a Contractor Spending Plan (CSP) as part of its cost proposal. The TORP indicates if a CSP is required. 152

(c) Task order award. The contractor shall perfonn all work described in definitized task orders issued by the contracting officer. Definitized task orders include the following: (1) Statement of work/meetings/travel and deliverables; (2) Reporting requirements; (3) Period of performance; (4) Key personnel; (5) Applicable special provisions; and (6) Total task order amount including any fixed fee. (End of Clause)

§2052.216-75      Accelerated task order procedures.

As prescribed at §2016.506-70, insert the following clause in applicable solicitations and contracts: - Accelerated Task Order Procedures (a) The NRC may require the contractor to commence work before receipt of a definitized task order from the contracting officer. Accordingly, when the contracting officer verbally authorizes the work, the contractor shall 153

. proceed with performance of the task ord~r subject to the monetary limitation established for the task order by the contracting officer. (b} When this accelerated procedure is employed*by the NRC, the 1

    ,contractor agrees to begin promptly nego_ti at ing with the contracting officer the terms of the definitive task order and agrees to submit a cost proposal with supporting cost or pricing data.       If ~greement on a'definitized task order is not reached by the target date mutually 'agre;d upon by the contractor and contracting.officer, the contracting offic~r may. netermine a reasonable pri~e and/or fee *in accordance with Subpart 15.8 and *Part 31 of the FAR, subject to contractor appeal as provided* in 52.233-1, Disputes.       In any event, -

the contractor shali proceed with completion of the task order, subject only to the monetary l~mitation established by the contracting officer*and the

   . term~ and conditions of the basic contract.

(End of Clause) ,',

      §2052.222-70         Nondiscrimination because of age.

As prescrjbed at §2022.901-70, insert the following clause in applicable solicitations and contracts: Nondiscrimination Because of Age It is th.e policy of the Executive Branch of the Government that: (~) Contractors and subcontractors engaged ~n the performance of Federal contracts may not, i,n connection with.the employment, advancement, or 154

• discharge of employees or in connection with the terms, conditions, or privileges of their employment, discriminate against persons because of their age except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirements; and (b) That contractors and subcontractors, or person acting on their

  ~~~al!, ~ay not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for employmen~t- unieS-s.the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan, or statutory requirement.

(End of Provision)

  §2052.231-70       Precontract costs.

As prescribed in §2031.109-70, insert the following clause in applicable solicitations and contracts:

• - Precontract Costs Allowable costs under this contract must include such costs, incurred by the contractor in connection with the work covered by this contract during the period from
• and including
• to the effective date of this contract, as would have been allowable pursuant to the terms of this contract if this contract had been in effect during that period; provided, however, that the costs may not in aggregate exceed* which is included in the estimated cost of this contract.

155

                    *To be incorporatea into any ~esu1tant contract
                                      *{End of Clause)

§ 2052. 235-70 ** Publication of researcb~esults.

• j r

As prescribed in §2035.70, insert the following clause in applicable solicitations and contracts: Publication of Research Results {a) The principal investigator(s)/contrattor shill comply with*the provisions of NRC Hand~ook 3.8 (formerly MC 3202) and NRC Manual Chapter 3205 regarding publication in refereed sctentific and engineering journals -or dissemination to the public of any information, oral or written, concerning

                           ~                                 .

the work ~erformed under -this contract. Failure to comply with this clause shall be grounds for termination of this contract. f j ',. {b) The principal investigator{~)/con~ractor may publish the results of.tnis work in refereed scientific and engineering journals or in open literature and present_p~pers at public or association meetings at interim stages of work, in addition to submitting to NRC.the f;'nal reports and other deliverables, required under this contract. However, such publication .and* papers shall focus on advances in science and technology and minimize . conclusions and/or reco!Mlendations ~hich may have regulatory ' . jmplications. 156

(c) Prior to any such publication, the contractor shall submit the proposed publication to the NRC Contracting Officer and Project Officer for review and appro~al. ( End of Clause}

    §2052.235-71 Publication of research results - universities
   -- ---- -     -  - -  s As prescribed at §2035-70, substitute the following paragraph (c) for paragraph {c} in §2052.235-70 .
*-           (c) The principal investigator(s) shall coordinate all such publications with, and transmit a copy of the proposed article or paper,to, the NRC Contracting Officer or Project Officer, prior to publication. The NRC agrees to review and provide comments within thirty (30) days after receipt of a proposed publication. However, in those cases where the information to be published is (1) subject to Commission approval, (2) has not been ruled upon, or (3} disapproved by the Commission, the NRC reserves the right to disapprove

• - or delay the publication. Further, if the NRC disagrees with the proposed publication for any reason, it reserves the right to require that any publication not identify the NRC's sponsorship of the work and that any associated publication costs shall be borne by the contractor.

(End of Clause) 2052.235-72 Safety, Health, and Fire Protection. 157

As prescribed in §2035.70, insert the following clause in applicable solicitations and contracts: Safety, Health, and Fire Protection The contractor shall take all reasonable precautions in the performance of the work under this contract to protect the health and safety of its employees and of members of the public, including NRC employees and contractor personnel, and to minimize danger from all hazards to life and property and shall comply with all applicable health, safety, and fire protection reguJations and req~irements (including reporting requirements) of the Commission and the Department of Labor. In the event that the contractor fails to comply with these regulations or requirements, the contracting officer may, without prejudice to any other legal or contractual rights of the Commission, issue an order stopping all or any part of the work; thereafter, a start order for resumption of work may be issued at the discretion of the contracting officer. The contractor shall make no claim for an extension of* time or for compensation or damages by reason of, or in connection with, this typ~ of work stoppage.

• Dated at Rockville, Maryland this O

( ind of Cl day aua) oA l 4!P.h,L-~, 1992. For the Nuclear Regulatory Commission. L,~ Samuel J. Secretary 158 J

INDEX Advance Payments . . . . . . . 88 Advertisements 36, 37, 155 Affiliates 42, 45, 46 Agency Head 33 Appea 1s . *

• 37, 43, 88-90 Award Notification ... . ....
• 68, 98, 133, 134 Bid Evaluation ***. 65-, 98, i2:r--

Brand Name or Equal 6l Broad Agency Announcements 10, 90, 91

• - Buy American Act Claim . . * * . . .

Classified Information 84 94, 114, 130, 135, 158 35, 36, 100, 102, 103 Commission 1-6, 19-21, 23, 26, 32, 33, 70, 100-103, 111, 114, 121, 124, 125, 136, 142, 157, 158 Competition Advocate ... .. ... 30, 31, 33 Competitive Range . 9, 73, 74, 76, 80 Contract Financing .. .. . ... .... 88

• Contracting Officer Authority .. 29, 32 Contractor Spending Plan 12, 63, 115, 118, 137, 147, 152 Cost Accounting Standards * . . 87 Cost Principles and Procedures . . . 87 Cost Reimbursement Contracts 77, 78 Debarment . * . . . 3, 8, 37, 40-42 Debarring Official 40, 42 Definitions . . . . 32, 37, 38, 40, 45 Affiliates 45 Definitions.

Contract . . . . . . . . . . . . . . . . . 45 159

Designating Official .. .. .. . . . . . . 31, 73, 74, 76, 92 ~ Designs .. .... . . . . . . . . 47, 62,,* 98, 114 Deviations . .. . . . . . . . . . . ..

                                                                                                '7, 22,       27, 28 Di~allowance of*Costs                                                                                             93 "I

Disputes .... *' . . 82, 88-90, 94, 95, 131, 154

                                                            *

• I* **
• 62, 98, 114, 129 Effect of Listing . ... . . 37, 41 Financial Status Reports . . 11 Government Pr.operty * . . 96, 97 Head of Contr*acting Activity . . . . 8-2 Indirect Cost R~tes Ineligibility . . .

Initiating Official 78, 99, 148-150 3, 37, 40 40 Invitations for Bids* . . *,. .. . ... . 64, 65 Key Personnel . 46, 58, 67, 91, 98, 127, 128, 138, 152, 153 Labor Policies 82 Labor Surplus Area Concerns . . . . .. ~ / j *,

                                                                                                           . .. 81 Negqtiation                                                ..          ...         * ,

• I
• 30, 66, 71, 80 Options ..

Organiza.tional Conflicts of Inter~.st . 3, 6,

• 7, 14-16*, 19, 37, 38, 44, 46-48, 55-58, 106~108, 110 79 Patent Rights . . . . 85 Potential Conflict of Interest 46, 108

.Prebid Conference 1 ** 64,, 65, 98, 120, 121 Preproposal Conference . 68, 99, 141-143 Privacy .* .. . . I

                             ..                                                 83, 84, 101 , ll l, 112 Procurement Executive                    ....    .           ....  ...                   33, 38-41, 43, 59 Prospective Contractor             ....            .    *.   .      .                              . .      46, 125 Protests                       . . . . . '* . . . .
                                 \                                             . ,, .                       . 88, 89 f

• 160

r- Publication of Research Results . ....... . . 14, 91, 99, 156, 157 Qualifications of Contract Employees .. .. 40, 98, 104, 105 Research . ... 3, 4, 14, 47, 48, 56, 90, 91, 99, 144, 156, 157 Security 35, 36, 90, 98, 100-104, 112, 115 Site Access . . . .. . . . . 36, 98, 104 Small Business . . . . 20, 39, 71, 80, 134 Small Disadvantaged . 80, 81 Solicitation of Bids 64 Source Selection . 66, 71, 72, 76, 80 Standards of Conduct 34

 *- System of Records . . .

Task Order Procedures Technical Consulting and Management Support 84 13, 79, 99, 150, 151, 153

                                                                           . 47, 56 Technical Progress Report                                 10, 63, 98, 115, 116 Technical Reports . .                                       . 62, 98, 115, 129 Travel Reimbursement                                           12, 69, 99, 143 Unauthorized Commitments                                          7, 22, 29, 31 Unsolicited Proposals . . .                                          56, 66, 69 161

DOCKETED USNRC [7590-01]

                                                            "92 JUN 25 P3 :45 NUCLEAR REGULATORY COMMISSION 48 CFR Chapter 20
                                 - RIN 3150-AF::29- -

Acquisition Regulation (NRCAR): Debarment - AGENCY: Nuclear Regulatory Commission. ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is establishing the Nuclear Regulatory Commission Acquisition Regulation (NRCAR). The NRCAR is necessary to ensure that the regulations governing the procurement of goods and services within the NRC satisfy the particular needs of the agency. The NRCAR is intended to implement and supplement the government-wide Federal Acquisition Regulation (FAR). This final rule contains only the agency's debarment, suspension, and ineligibility procedures. The NRCAR will be published as a final rule in the near future.

EFFECTIVE DATE: (30 days after publication). FOR FURTHER INFORMATION CONTACT: Edward L. Halman, Director, Division of Contracts and Property Management, Nuclear Regulatory Commission, Washington, DC 20555. Telephone: (301) 492-4347.

SUPPLEMENTARY INFORMATION:

Background

Federal agencies traditionally have developed their own contracting procedures with limited attention to uniformity among agencies. The result was a system or procurement policies that varied from agency to agency, -causing-confusion- within t--he--contract-ing-coltlllunity..- -Consequently, -the Office---.-. of Federal Procurement Policy, created in 1974, h~s worked with the agencies and the public to create a uniform procurement regulation known as the Federal Acquisition Regulation (FAR). The FAR was published in the Federal Register on September 19, 1983 {48 FR 42102) with an effective date of April 1, 1984. The FAR is codified as Chapter 1 of Title 48 of the Code of Federal Regulations. Due to differing statutory authorities among Federal agencies, the FAR authorizes agencies to issue regulations to implement FAR policies and procedures internally and to include additional policies and procedures, solicitation provisions or contract clauses to satisfy the specific needs of the agency. NRC's debarment, suspension, and ineligibility procedures are being published to provide the agency, as soon as possible, with speciftc implementing guidance for applying appropriate sanctions upon discovery* of contractor wrongdoing. The entire Nuclear Regulatory Commission Acquisition Regulation will be published as a final rule in the near future. Administrative Procedure Act Section 553 of the Administrative Procedure Act (5 U.S.C. 551 et seq) exempts rules relating to public contracts from the prior notice and comnent procedure normally required for rulemaking. However, the Office of Federal Procurement Policy (OFPP), Office of Management and Budget, has established procedures to be used by all Federal agencies in the promulgation of procurement regulations. OFPP Policy Letter 83-2 states that an agency must provide an opportunity for public comment before adopting a procurement regulation(s) if the regulation is "significant.* asignificant* is defined

 --ge-nefal ly- as-something whi ch--has-an -effect--beyond- the i-nternal operati-ng ---

procedures of the agency or has a cost or administrative impact on contractors. This regulation is issued principally to exercise delegations established by the FAR and to adopt procedures that merely supplement the debarment, suspension, and ineligibility regulations (Subpart 9.406 of the FAR) and will not have additional cost or administrative impact on contractors. Therefore, NRC has determined that this rule is not significant within the meaning of OFPP Policy Letter No. 83-2. Nonetheless, there has been an opportunity for public convnent on this rule because it was part of the proposed NRCAR. The proposed NRCAR rule issued for public corrment (54 FR 40420; October 2, 1989) contained the complete NRCAR regulation. At this time, we are adopting only the debarment, suspension, and - ineligibility procedures from that proposed rule. Only one convnent was - received on this subpart. The conunenter_suggested that the NRCAR requirement found at 2009.405-2{a) for a certification of debarment status is inconsistent with FAR clause 52.209.5. FAR clause 52.209-5 was added to the FAR in 1989. Therefore, the NRCAR clause 1is no longer necessary and has been removed from the final rule. Environmental Impact: Categorical Exclusion The NRC has determined that this regulation is the type of action described in the categorical exclusion set forth in 10 CFR 51.22 (c)(S} and (6). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

                -- - - - -Paperwork Reduction- Act Statement    - --

• This final rule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1986 (44 U.S.C. 3501 et seq).

Regulatory Analysis This final rule establishes the procedures' and requirements necessary to implement and supplement FAR Subpart 9.4, Debarment, Suspension, and Ineligibility. This final rule constitutes an administrative action governing certain procurement activities of the NRC. This provision will not have an additional adverse economic impact on any contractor or potential contractor because it merely implements the debarment, suspension, and ineligibility regulation already mandated by FAR subpart 9.4. Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. The final rule establishes the agency's debarment, suspension, and ineligibility procedures necessary to implement and supplement the FAR. Because the final rule established procedures applicable only in certain instances, these provisions do not have a significant economic impact on any contractor,-including small entities. Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule. Therefore, a backfit analysis is not required because the rule does not involve any provision which would impose backfits as defined in 10 CFR Part 50.109(a)(l).

             --- - - list -of-Subjects in 48--FR- Chapter -20 Government procurement, Nuclear Regulatory Commission Acquisition Regulations, Reporting and recordkeeping requirements.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, 5 U.S.C. 552 and 553, and FAR Subpart 1.3, the NRC is adding Chapter 20 to Title 48 of the Code of Federal Regulations.

1. Chapter 20 is added to Title 48 to read as follows:

CHAPTER 20 - NUCLEAR REGULATORY COMMISSION Part 2009 - CONTRACTOR QUALIFICATIONS Subpart 2009.4 - Debannent, Suspension, and Ineligibility 2009.403 Definitions. 2009.404 Consolidated list of parties excluded from Federal procurement or non-procurement programs. 2009.405 Effect of listing. 2009.405-1 Continuation of current contracts. 2009.405-2 Restrictions on subcontracting. 2009.406 Debarment. 2009.406-3 Procedures. 2009.407 Suspension.

2009.407-3 Procedures. 2009-470 Appeals. Authority: 42 U.S.C. 2201, Sec. 201, 88 Stat. 1242; as amended 42 U.S.C. 5841; and 41 U.S.C. 418(b). PART 2009 -,CONTRACTOR QUALIFICATIONS Subpart 2009.4 - Debarment, Suspension, and Ineligibility

§2009.403   Definitions.

As used in §2009.4: Debarring official means the Procurement Executive. Initiating official means the contracting officer, the Head of the Contracting Activity (HCA), the Procurement Executive, or the Inspector General. Suspending official means the Procurement Executive. §2009.404 Consolidated list of parties excluded from Federal procurement or non-procurement programs. The contracting officer responsible for the contract affected by the debarment or suspension shall perform the actions required by FAR 9.404(c){l)- (3).

      §2009.405        Effect of listing.

Compelling reasons are considered to be present where failure to contract with the debarred or suspended contractor would seriously harlJI the ___ i!gfi!ncy~ s _programs and prevent accomplishment of mission requirements. The Procurement Executive is authorized to make the determinations under FAR 9.405. Requests for these determinations must be submitted through the HCA to the Procurement Executive *

• - §2009.405-1 Continuation of current contracts.

The HCA is authorized to make the determinations under FAR 9.405-1.

      §2009.405-2            Restrictions on subcontracting.

The HCA is authorized to approve subcontracts with debarred or suspended subcontractors under FAR 9.405-2.

      §2009.406        Debarment.

- §2009.406-3 Procedures. (a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for debarment, the case must be referred through the HCA to the Procurement Executive immediately. The case must be accompanied by a complete statement of the facts (including a copy of any criminal indictments, if applicable) along with a reco1T111endation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for any other reason further investigation is considered necessary, the matter must first be referred to the HCA who will consult with the Office of the

  -- -Tifspector -sen-era-1 to--detenni ne if- further--invest iga.t ion -is requh:ed __ p_rior .to referring to the debarring official.

(b) Decision-making process. If, after reviewing the recommendations and consulting with the Office of the General Counsel and, if appropriate, the Office of the Inspector General, the debarring official determines debarment is justified, the debarring official shall initiate the proposed debarment in accordance with FAR 9.406-3(c) and notify the HCA of the action taken. If the contractor fails to submit a timely written response within 30 days after receipt of the notice, the debarring official may notify the contractor in accordance with FAR 9.406-3(d) that the contractor is debarred. (c) Fact-finding proceedings. For actions nsted under FAR 9.406-3(b) (2), the contractor shall be given the opportunity to appear at an

• - informal hearing. The hearing should be held at a location and time that is convenient to the parties concerned, and no later than 30 days after the contractor received the notice, if at all possible. The contractor and any specifically named affiliates may be represented by counsel or any duly authorized representative. Witnesses may be called by either party. The proceedings must be conducted expeditiously and in such a manner that each party will have an opportunity to present all information considered pertinent to the proposed debarment.

§2009.407   Suspension.

2009.407-3 Procedures. (a} Investigation and referral. When a contracting officer becomes aware of possibfe frregul arfties-*or any-tnformatton-wh-kh- may. -be.sufficient __ cause for suspension, the case must be referred through the HCA to the Procurement Executive immediately. The case must be accompanied by a complete statement of the facts along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for any other reason further investigation is considered necessary, the matter must first be referred to the HCA who will consult with the Office of the Inspector General to determine if further investigation is required prior to referring the matter to the suspending official. (b) Decision-making process. If, after reviewing the recommendations and consulting with the Office of the General Counsel and, if appropriate, the Office of the Inspector General, the suspending official determines suspension is justified, the suspending official shall initiate the proposed suspension in accordance with FAR 9.407-3(b)(2}. The contractor shall be given the opportunity to appear at an informal hearing, similar in nature to the hearing for debarments as discussed in FAR 9.406-3(b)(2}. If the contractor fails to submit a timely written response within 30 days after receipt of the notice, the suspending official may notify the contractor in accordance with 9.407-3(d) that the contractor is suspended. §2009.470 Appeals. A debarred or suspended contractor may appeal the debarring/suspending official's decision by mailing or otherwise furnishing a written notice within 90 days from the date of the decision to the Executive Director for Operations. A copy of the notice of appeal must be furnished to the debarring/suspending official from whose decision the appeal_ is taken. Dated at Bethesda, Maryland this 22 nd day of June , 1992 For the Nuclear Regulatory Commission

                          ~~~

Patricia G. Norry, Direcyr, Office of Administration. DOCKET NUMBER PROPOSED RULE PR ' 4-? (!_ za\I ( ] )' _ r,,-;;;-. 5 i Pt Lf0,¥2.CJ DOCKETED

                                                                          *t      !                                               USNRC Science Applications International Corporation An Employee-Owned Company March 23, 1990                                                                                                    '90 MAR 29 AlO :47 U.S. Nuclear Regulatory Commission

_ _Offi~_e of__policy, M/S P-1118 Washington, DC" *2*0555 - - --- - Attention: Ms. Mary Lynn Scott, Acting Branch Chief

Subject:

Proposed Rule to Establish the Nuclear Regulatory Commission Acquisition Regulation (NRCAR), 48 CFR Chapter 20 -

Reference:

Federal Register, Volume 54, No. 189 dated October 2, 1989

Dear Ms. Scott:

This letter has been prepared for the purpose of providing the Office of Policy with convnents on the proposed rule to establish the Nuclear Regulatory Commission Acquisition Regulation (NRCAR) as Chapter 20 to Title 20 of the Code of Federal Regulations. Comments set forth in this letter reflect concerns identified by Science Applications Corporation International (SAIC) with respect to certain aspects of the proposed rule. These comments reflect SAIC's perspective as an NRC contractor directly affected by this proposal, as this rule will govern all NRC procurements of supplies and services made with appropriated funds. - ~-'it is respectfully requested that the reco1T1T1endations, clarifications and changes contained herein be given ample consideration as part of the NRC's final rule making process. The Office of Policy is encouraged to adopt these recommendations, which are intended to provide the NRC with a fair and reasonable means of implementing and supplementing the Federal Acquisition Regulation (FAR) with the establishment of the NRCAR. Recommended changes and clarifications to the proposed rule are briefly outlined below and are discussed in greater detail in the paragraphs which inrnediately follow this summarization: I. The organizational conflicts of interest pro~.i-$,1:9,J\~_.~l:flg!h _Y-flger,.. "'. Subparts 2009.5 and 2052.2 to the proposed NRC ai'qMi:d~~~~r. :9µfat1-on!~~ . , ,J contain inequitable and overly restrictive -Jt(A]iit~ contractors having access to NRC-regul ated acc.*lvi't1¢~:i~.~~-~fi~~ 1~ofj<-'. n~: I twf:Y performed by contra_ctors under task order type contracts. Section 2009.570-5 and the additions to the general organizatipnaJJ:CPJ'lfil-J.e..ts of interest clause set forth under contract clauses 2052.209-76 and 2052.209-77 should only apply to work being .per.fo.r.med un~te.r.:..an_NRC1 :hc,r.i?~*? contract. This limitation to the scope of _t~es_EL3d~_!!_:LC?!l!.._-"ti..JiJJ-;fi 3!:I':-.:..., adequately protect the NRC against situations __!_h_i~~- -~~L(l!h,r::~~~lbJ,1.:1 ti)~*.,\

                                                                                                          ,

• t

                                                                                                     .,_*   ~--* - *  .: * .,_ - - '. - J-~-~ i10IJ1,l'~~1~!~~ ,;:i:"~:!!-~

mo Goodridge Drive, P.O. Box 1303, McLBBn, Virginia 22102 (7()3) *szr-4300--*. - .. *-. ----- .:......_

• Other SAIC 00.C.* Abuque,QUe. BostM, Ccloredo Spmgs. Day,on, H - . 1M ~ Loe Ange/el. 0- ~ - Orando,*PaJo Alto. San*D,ego.-sum.,--:~Q.-~~-- ----

Acknowledged-by-card-.. .5i --

Ms. Mary Lynn Scott/NRC Serial No. 90-TJR.166 March 23, 1990 Page Two in providing an offerer or contractor with an unfair competitive advantage, or (b) impair the offerer's or contractor's objectivity

         - - -in per-forming work_for t_hg NRC._ _ __

2. With respect to negotiated procurements, Section 2009.570-5 should permit a contracting officer to alter any contract clause making an addition to the general contract clause found at 2052.209-74.

Contracting officers should be authorized to amend contract clauses 2052.209-75, 2052.209-76 and 2052.209-77 in drafting solicitations, during competitiv_e procurements by solicitation amendment and in conducting contract negotiations. This will permit contracting officers to examine each individual contracting situation on the basis of its particular facts and the nature of the proposed contract. Furthermore, this will provide contracting officers with the freedom to exercise common sense, good judgment, and sound discretion in negotiating contracts, which contain organizational conflicts of interest terms and conditions.

3. The proposa 1 presentation and format provisions set forth under clause 2052.215-71 should be expanded to include guidance for the completion of the referenced Contractor Spending Plan. This clause should also be clarified such that the requirement for submission of subcontractor cost evaluations is deleted from the technical and management proposal instructions. This requirement should be made part of the cost proposal preparation instructions, ensuring that there are no references to cost information furnished to the NRC as part of an offerer's technical and management proposal.

4. The travel reimbursement provisions contained in contract clause 2052.215-75 should be amended to be consistent with Clause 31.205-46 of the FAR. The cost limitations, per diem rates for specific localities, cost of travel by privately owned vehicles and items which may require receipts should be determined in accordance with the aforementioned FAR Clause.

5. The number of the clause establishing task order procedures should be corrected to read N2052.216-74. Subparagraph (a) should specify a proposal submission due date as an additional Task Order Request for Proposal {TORP) requirement. The task order proposal due date should be subject to mutual agreement. In addition, reference to Nany fixed fee~ in subparagraph {c){6) should be deleted and replaced with language that is not specific to a certain contract type.

In an effort to provide the NRC with an understanding of the basis for these recorrmendations, each concern raised by SAIC is discussed in greater detail in the following paragraphs:

Ms. Mary Lynn Scott/NRC Serial No. 90-TJR.166 March 23, 1990 Page Three I. With respect to Section 2009.570-5 of the proposed NRCAR, the proposed expansion of the general organizational conflicts of interest clause to include the "Work for others" restrictions set forth in paragraphs (2) and (3) to contract clause 2052. 209-76 for use with contractors having access to NRC-regul ated activities, is in certain instances inequitable and overly restrictive. These additional restrictions, as they are presently written, are inappropriate for inclusion in task order type contracts. This view is supported by the f4ct that these restrictions may preclude a contractor from accepting work from an NRC licensee or applicant, which is related to any aspect of a broad NRC statement of work even if there are no identified task order requirements for work involving that particular licensee or applicant. This clause constitutes an intolerable restraint on the ability of a contractor to perform work for entities regulated by the NRC. It clearly interferes with a contractor's ability to serve nuclear industrial clients, and will adversely affect a contractors ability to maintain an in-depth involvement and understanding of nuclear safety and regulatory issues. Task order type contracts afford the NRC the convenience and fl exi bil i ty to order services on an as-required basis with typically no minimum order requirements or financial obligation to the contractor. Accordingly, the proposed restrictions set forth in the aforementioned paragraphs to Clause 2052"209-76 should be revised such that they only apply to work to be performed under such NRC contracts. It is therefore reconvnended that the additions to the general clause be amended to read as follows:

      "(2) The contractor may not perform any services for any NRC licensee or applicant that are the same as, or substantially similar to the services being performed under the scope of work for this contract without having first satisfied the "Disclosure after award" reaui rements of contract clause 2052, 209-73, and if appl 1cab] e, contract clause 2052.209-77, (3) The contractor may not represent, assist or otherwise support JD.Y NRC licensee or applicant undergoing an NRC audit, inspection, or review where the activities that are the subject of the audit, inspection, or review are the same or substantially similar to the services being performed under this contract, except where the NRC licensee or applicant requires the contractor's support to explain or defend the contractor's prior work for the entity regulated by the NRC."

I' Ms. Mary Lynn Scott/NRC Serial No. 90-TJR.166 March 23, 1990 Page Four Contract clause 2052.209-77, which is prescribed for use with task order contracts, is also of concern to SAIC. The proposed expanded "Disclosure after

  -award _tenns_and cpn<!jtions contained in this contract clause impose a burdensome 11 information reporting -requirement -upon- -contractors, - which force __ affected contractors to maintain constant surveillance of company wide proposal activities of any type involving NRC licensees or applicants. This additional disclosure requirement stipulates that contractors disclose all proposed new work of any type involving NRC licensees or applicants, regardless of whether the proposed activities represent a potential or actual conflict of interest with work being performed for the NRC.

• These proposed nDisclosure after award" tenns and conditions contradict the organizational conflicts of interest provisions set forth in the Sections 9.504(d) of the FAR, which clearly state that contracting officers should avoid creating unnecessary delays, burdensome information requirements, and excessive documentation in identifying and resolving potential conflicts. Accordingly, this proposed contract clause is inconsistent with the guidance set forth in the FAR and creates an unnecessary reporting requirement, which should be eliminated to remain in compliance with the Paper Work Reduction Act of 1980. The public reporting burden for the collection of this information has been estimated by the NRC to be 12 hour per response. The basis for this estimate is not included in the*proposed rule and is likely to vary from contractor to'contractor with a greater burden being place upon large business concerns. Large businesses will likely expend a significantly higher number of hours in complying with this additional reporting requirement in searching numerous sources of data, reviewing, collecting and disseminating such infonnation to the NRC and in assisting the NRC in properly interpreting such information.

As this contract clause is presently written, it is also unclear as to whether the NRC will reimburse its contractors for all costs associated with complying with this burdensome contract reporting requirement, which extends beyond the disclosure and mitigation of potential organizational conflicts of interest. Presumably, costs incurred by NRC contractors in searching for and providing this infonnation to the NRC would be considered an allowable cost, which may be directly charged to the Government in the performance of cost reimbursement type contracts. The fulfillment of this uDisclosure after award" requirement is not necessarily an inexpensive undertaking and it may be especially problematic for large, diverse companies to furnish this information to the NRC on a cost effective basis. Furthennore, the "Disclosure after award terms and conditions set forth in the 11 general clause found at 2052.209-74(c) already require contractors to make immediate and full disclosure in writing to the contracting officer of any organizational conflicts of interest discovered after contract award. In recognition of this pre-existing disclosure requirement, the additional reporting requirements prescribed under contract clause 2052.209-77 are considered to be unnecessary, burdensome and indirect contradiction to the FAR and the Paper Work

\ Ms. Mary Lynn Scott/NRC Serial No. 90-TJR.166 March 23, 1990 Page Five Reduction Act. In addition, the later contract clause is likely to have a significant cost and administrative impact upon NRC contractors. This finding is contrary to NRC' s determination that this rule will not have a cost or administrative impact on its contractors and that this rule is not deemed to be significant within the meaning of OFPP Policy Letter No. 83-2. Based on the foregoing concerns and questionable need for this information, it is recorranended that the proposed expansion of paragraph (d), "Disclosure after award" be deleted in its entirety from contract clause 2052.209-77.

2. To enable contracting officers to examine each individual contracting situation on the basis of its particular facts and the nature of the proposed contract, any contract clause making an addition to the general contract clause found at 2052.209-74 should not be considered a mandatory provision. Contracting officers should be authorized to alter contract clauses 2052.209-75, 2052.209-76, and 2052.209-77 when dealing with negotiated procurement actions and should be empowered to amend these contract clauses in drafting solicitations, during competitive procurements by solicitation amendment and in the conduct of contract negotiations with a prospective contractor. Consistent with guidance set forth in Section 9.505 of the FAR, contracting officers should exercise corranon sense, good judgment, and sound discretion in amending these provisions. It is the contracting officers responsibility to ensure that a contractor is prevented from being placed in conflicting roles that might bias the contractor's objectivity, and that appropriate measures are in place to adequately prevent a contractor from gaining an unfair competitive advantage.

3. In accordance with the proposal presentation and fonnat instructions prescribed by section 2052.215-7l(d)(2) of the proposed NRCAR, offerors are to provide the NRC with a Contractor Spending Plan (CSP) as part of 'any cost proposal exceeding $100,000 with a period of perfonnance longer than six months.

Guidance*for completing the CSP is referenced as an attachment to the NRCAR but was not provided as part of the proposed rule published in the Federal Register. To afford all interested parties an opportunity to comment on the guidance for completing the Contractor Spending Plan (CSP), it is recommended that a copy of these instructions be published in the Federal Register. With respect to subparagraph (e)(4)(x) of clause 2052.215-71, it is reconvnended that the requirement for submission of subcontractor cost evaluations be deleted from the technical and management proposal preparation instructions and be made a part of the cost proposal requirements. In adding this requirement to the cost proposal instructions under subparagraph (d) to this clause, there will be no reference to any cost information furnished to the NRC as part of an offerer's technical and management proposal. This will ensure that all offerors comply with subparagraph (I) of this clause which states that technical and management proposals may not contain any reference to cost.

Ms. Mary Lynn Scott/NRC Serial No. 90-TJR.166 March 23, 1990 Page Six It is also recorrmended that subparagraph (4) to clause 2052.215-71 instruct offerers to address the criteria enumerated under items (1) through (xix) but

 -not necessar:lly.__in the__ maon~r _a11d_~~quence outlined under this provision. This will provide offerers with flexib111ty-to-deveTop-and-structure-their-respect1ve technical and management proposals 1n a format consistent with the stated evaluation criteria contained 1n an NRC solicitation.

4. To remain in compliance with the Federal C1v111an Employee and Contractor Travel Expense Act (PL 99-234) and FAR Clause 31.205-46 entitled Travel Costs, contract cl ause 2052. 215-75 should be revised such that subparagraph (c) is changed to read:

        "(c) Reimbursement for travel related expenses shall be in accordance with FAR Clause No. 31.205-46 entitled *Travel Costs*.

In addition, subparagraph (e) to clause 2052.215-75 should be deleted in its entirety. Cost limitations, per diem rates for specific localities, cost of travel by privately owned vehicles and items which require receipts are adequately covered by the aforementioned FAR clause, which incorporates by reference the Federal Travel Regulations, Joint Travel Regulations and Standardized Regulations. The Federal Travel Regulations, prescribed by the General Services Administration, cover travel in the conterminous 48 United States. Joint Travel Regulations, Volume 2, DoD Civilian Personnel, Appendix A, prescribed by the Department of Defense, cover travel in Hawaii, the Commonwealth of Puerto Rico, and the territories and possessions of the United State. Standardized Regulations (Government Civilians, Foreign Areas) Section 925, prescribed by the Department of State, cover travel in areas not governed by the other two sources. The portions-of the above mentioned regulations that are considered to be applicable to contractors are specified under FAR 31.205-46(a}(4}.

5. The number of the contract clause establishing task order procedures should be corrected such that it reads

• 2052.216-74*. It 1s recommended that subparagraph (a) be expanded to include a task order proposal submission due date for inclusion in the NRC's Task Order Request for Proposal (TORP). In recognizing that the requested due date for submission of a task order proposal may be changed by mutual agreement between the contracting officer and the NRC's contractor, it is suggested that the first sentence in subparagraph (b) include the phrase "or an otherwise mutually agreed upon date* after the acronym *TORP".

Finally, the reference to "any fixed fee" in subparagraph (c)(6) should be replaced and superseded with *the total estimated cost and any applicable fees or profit*. This change is recommended such that the clause 1s appropriate for use with all types of task order contracts, and not just cost-plus-fixed-fee contracts.

Ms. Mary Lynn Scott/NRC Serial No. 90-TJR.166 March 23, 1990 Page Seven SAIC appreciates having the opportuni ty to provide the NRC with the foregoing comments on the proposed establishment of the NRCAR. In offering these comments to the Offic-e of Policy, it has been our intentfon to provide fair and reasonable recommendations aimed at improving, clari fy ing and expanding upon the proposed rule. The NRC is respectfully requested to carefully consider these suggestions and is strongly encouraged to adopt these constructive recommendations in impl ementing the NRCAR. In the event there are any questions with regard to these comments,please refer them to the attention of the undersigned at (703) 448-6503. Very truly yours, SCIENCE APPLICATIONS INTERNATIONAL CORPORATION

 ~~~* ~

Thomas J. R ehau Senior Con ' act Representative cc: The Secretary of tne Commission Mr . James Taylor , EDO Mr. Thomas Murley Mr. Robert Bernero Mr. Edward Halman

• Civilian Agency Acquisition Council (Chairperson)

Mr. Nicolas Garcia, 0MB Mr. Alan Busman, OF PP

DOCKET NUMBER DR' PROPOSED RULE.[ I 1 gc z 6 I * ** ... *-;;; W W

                                                            .....,=- - --

WWW WW w* *

• WW Science Applications International Corporation An Employee-Owned Company

                                                                                                        @Ir£ 1-o12. 0                              L'O CK[T[O USNRC
                                                                                                                                        *90 HAR 28 A10 :05 March 23, 1990 The Secretary of the Commission U.S. Nuclear Regulatory Commission Attention: Docketing and Service Branch Washington, D.C. 20555

Dear Secretary:

I am writing on behalf of SAIC to offer comments on the proposed NRC Acquisition Regulation (NRCAR) publi sh ed in the Federal Register on October 2, 1989. SAIC is one of NRC's primary commercial technical assistance contractors, having provided over $14 million of technical support to all the program offices and the Regions, on over 100 task orders under six separate contracts, in the past ten years. Three major contracts are currently active. Our support of the federal nuclear regulatory program predates the creation of NRC itself. The contract clauses pertaining to Org anizational Conflicts of Interest (Subpart 2009.5) at 2052.209-76(2) and 2052.209-77, which the proposed rule would add to the general clause at 2052.209-74, would be unacceptable to SAIC in their present form in broad scope technical assistance contracts such as th ose under which we are presen t ly providing services to NRR and several other program offices. The requirement to obtain NRC approval for proposed new work for licensees and applicants, even when such work would not pose a conflict of interest with respect to ongoing work for NRC, constitutes an unreason able, overly restrictive, and unwarranted i ntrusion into a contractor's business. The administrative burden and the requirement for rapid response wou l d make it unworkable. The proposed rule would be detrimental to NRC's interests because it would limit competition and NRC's access to broadly qualified contractors such as SAIC. It would be al l the more regrettable because the added clauses are not needed to avoid conflicts of interest. We urgently recommend that the clauses at 2052.209-76 and 2052.209-77 not be made mandatory. NRC sho uld retain for itself the flexibility, and potential contractors shoul d be afforded the opportunity, to negotiate t hese provisions to the mutual satisfaction of both parties where there are potential conflicts of interest. Acknowledged by card ... fil!E..{:1.9"""""...... 1710 Goodridge Drive, P.O. Box 1303, McLean, Virginia 22102 (703) 821-4300 Other SAIC Offices: Albuquerque, Boston, Co/Onldo Springs, Os>'fon, Huntsville, Las \legss, Los Angeles, Oak Ridge, Orlando, Palo Alto, San Diego, Seattle, and Tucson

REGULATORY COMMISSION G & SERVICE SECTION E OF THE SECRETAR¥ OF THE COMMISSION Document Stati tics F rk Date 11~/Cjo < 1ece1ve~ I " 0 s Reproouced 3 - ---

 ;&,~         tion Et !)S      oR

Page two The Secretary of the Commission March 23, 1990 My staff has prepared detailed comments on these and other aspects of the proposed rule, which are being sent under separate cover to the NRC Office of Policy. Sincerely, i~~ Edward A. Straker Sector Vice President Space, En ergy and Environment cc: Mr. James Taylor, Executive Director for Operations Dr. Thomas E. Murley, Director Mr. Robert Bernero, Director Mr. Edward L. Halman, Director Ms. Mary Lynn Scott, Acting Chief, Operations Support Staff Dr. L.A. Kull, President, SAIC Dr. Peter E. McGrath, Senior Vice President, SAIC - Dr. Robert T. Liner, Jr., SAIC Program Manager for NRC support

DOCKET NUMBE P 0r'0$ElJ RULE '+'? (!_ o2. 0 ( 54 FR '-f 04;).0 ') EXECUTIVE OFFICE OF THE PRESIDENT

            .          OFFICE OF MANAGEMENT AND BUDGET D0CKETE WASHINGTON, D.C. 20503 0

OFFICE OF FEDERAL AR 06 PROCUREMENT POLICY MAR I 1990 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Attention: Docketing and Service Branch Washington, D.C. 20555

Dear Mr. Chilk:

This letter is in response to the November 3, 1989, Federal Register notice of proposed rulemaking regarding the estab-lishment of the Nuclear Regulatory Commission Acquisition Regulation (NRCAR). Your efforts to establish the NRCAR are appreciated. We do, however, have a number of concerns, as set out in Enclosure A to this letter. We recognize the difficulty of promulgating an entire agency acquisition regulation, and the issues we raise are indicative of the complexity of this task . We request that the Commission delay publication of a final rule pending resolution of our comments. We also request that, if possible, publication of NRCAR Subpart 2000 . 9 be delayed until the Office of Federal Procurement Policy (OFPP) Policy Letter 89-1, Conflict of Interest Policies

   -~~pplicable to Consultants, December 8, 1989 (Enclosure B) is implemented in the Federal Acquisition Regulation (FAR).

That should occur on or before July 8, 1990. We also ask that those provisions that are appropriate for inclusion in the FAR be referred to the FAR Councils for consideration in accordance with FAR 1. 304 (c) . We have enclosed a list of the provisions (Enclosure C) of the NRCAR we b e l ieve may be candidates for the FAR. If regulatory coverage is required while t h e regulations are being reviewed by the FAR Councils, NRC may promulgate a supplemental rule designated as "provisional" concurrently with NRC's request for review by the FAR Councils. However, if the FAR Councils determine an issue does not warrant regulatory coverage, NRC should take that determination into account and forego NRCAR coverage, unless justified by unique circumstances at the NRC. (Please see the OFPP memorandum, FAR System Maintenance and Use of Provisional Agency Rules, dated August 8, 1988 (Enclosure D) respecting provisional rules.) Acknowled~

UCLEAR REGULATORY COMMISSION DOCKET ING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statislic5 p ark Date __J/J_f,o C es Rece ived I I Copies Reproduced 3 a, Di ribution KIDS / PDf:<, Sc.ott

The NRCAR is an excellent draft document. We hope our comments are helpful. We will be happy to meet to discuss any of our concerns. Sincerely, Dav* F. Baker A ociate Administrator for Management Controls Encls. A - c omments B - Possible government-wide provisions C - OFPP Policy Letter s~~1

• D - FAR System Maintenance and Use of Provisional Agency Rules

                          -- 2 --

ENCLOSURE A Specific OFPP Comments*

1. Introductory text.

Page 6: Why do you include reference to "5 use 553 11 ? Section 553 is not an independent authority to issue regulations and expressly excludes contract regulations from the general notice requirement. Substitute "FAR Subpart 1.3"?

2. Subpart 2001.1. Purpose, authority, issuance.

Page 10: Citation of authority. Add FAR Subpart 1.3. Citations are not specific enough. Provide exact statutory citation that grants authority to regulate. Citation of Federal Property and Administrative Services Act is incorrect. Section 252 is but one codified section of the Act and does not contain direct authority for agencies to regulate. Suggested cite: 11 4 o u.s.c. 486(c), 42 u.s.c. , 42 u.s.c. , and FAR Subpart 1.3." -- -

3. Section 2001.402. Policy.

Although Section 2001. 301 "Policy" specifically states that policy, procedures and guidance of an internal nature will be issued through internal NRC issuances such as Manual Chapters, directives, or Division of Contracts and Property Management Instructions, this section contains instructional language that should be excluded from the NRCAR and issued through one of the above NRC issuances.

4. Subpart 2001.6. Contracting authority and responsibilities.

Page 17: §2001.602-3. Unnecessary to provide general discussion of ratification of unauthorized commitments. Not necessary to implement or supplement FAR.

5. Subpart 2003.1. Safeguards.

Page 22 (and elsewhere): Statutory citations are confusing. E.g., on page 22, reference is to "Sec. 161, 68 Stat. 948, as amended (42 u.s.c. 4841)

• 11 Refer to exact codified section only where possible. In same citation on page 22, give more precise reference to authority than 41 u.s.c. 401 et seq.).

6. Subpart 2009.1. Responsible prospective contractors.

a. This subpart, beginning on p. 26, appears more suited to be added as a supplementation of FAR Subpart 3.6, Contracts with

• Page references are to the typewritten draft of the NRCAR submitted with 0MB paperwork clearance submission.

Government Employees, etc. It is not an implementation of FAR Subpart 9 .1, dealing with responsibility. Presumably former NRC employees would be more capable than most in performing contracts for the NRC. FAR 3. 601 speaks of avoiding the appearance of favoritism or preferential treatment of current Government employees. NRC's provision is aimed at former employees.

b. Page 26: Does the two-year period apply to firms in which former NRC employees are partners, etc., or does this only apply to individual would-be contractors? If not, what purpose is served by providing special treatment to, say, a firm predominantly staffed by former NRC employees, none of whom were employed by the NRC within the last two years?

c. Page 26: Missing scope reference. Add 11 2009.1000 Scope" reference before "(a)". Or suitable section number for a "Policy" section heading.

d. Page 27: Subsection "(c)" is unnecessary. Regulations cannot alter statutory provisions.

7. Subpart 2009.4. Definitions.

a. Page 2 8: Section 2 009. 4 04.

• Suggest: "The contracting officer responsible for the contract affected by the debarment or suspension action shall perform * ** . : "

b. Page 29: Line 8 Clause required is for "all" solicitations, yet FAR 9 .. 404 states *that, clause is to be included only in contracts for $25,000 or more. What are the reason and authority *for requiring this information for all solicitations?

8. Subpart 2009~570. NRC Organizational conflicts of interest.

a. In general, we. question the need to draft these provisions as a ~upplement to the FAR. Much conceptual clarity would be achieve~ if provisions bearing on organizational conflicts were set out as *implementations or supplementations of the relevant FAR provisions. If this were to be done, it would be possible to identify more readily any new material truly supplementing the FAR.

b. Also, there seems to be some conceptual ambiguity in the regulation on the distinction between organizational conflicts and other (personal, relationship, interest) types of conflicts. The NRC regulation should be revised to treat the two concepts as distinct problems.

c. The NRC regulation also does not follow the distinction in FAR Subpart 9. 5 relating to preparation of specifications or work statements in developmental and nondevelopmental work, but rather seeks to regulate both kinds of work for purposes of 2 --

organizational conflicts. Why is it necessary to expand the FAR in this way?

d. Finally, we encourage delay in publishing final regulations in this area until the regulations implementing OFPP Policy Letter 89-1 on consultants and conflicts of interest are published in final form.

Specific suggested revisions follow:

e. 2009.570-3. Criteria for recognizing contractor conflicts. This provision covers an issue of concern that was addressed recently in 41 u.s.c. § 405b. OFPP Policy Letter 89-1 implements the directions of congress and was published in the Federal Register on December 18, 1989. (A copy is enclosed for your information.) The NRC rules on conflicts of interest should be published as provisional rules until the issue is addressed in the FAR. At that time, NRC should review the need for additional regulatory language to ensure that the FAR is not duplicated and that NRC policy is consistent with the FAR.

f. 2009.570-J(c). Criteria for recognizing contractor organizational conflicts of interest; Policy application guidance.

Although Section 2001. 301 "Policy" specifically states that policy, procedures and guidance of an internal nature will be issued through internal NRC issuances such as Manual Chapters, directives, or Division of Contracts and Property Management Instructions, this section contains instructional language that should be excluded from the NRCAR and issued through one of the above NRC issuances.

g. Page 32: 2009.500. Amend to read "In accordance with 42 u.s.c. 2210a, NRC acquisitions are processed . 11 Present form of citation confusing and requires unnecessary additional research to find provision cited.

h. Page 34: Change reference in definition of contract to 11 2009.570-l(c)".

i. Page 34: Suggested revision to definition of "contractor": 11 * *

• partnership, or corporation who or that is a party to a contract with the NRC, including his, her, or its affiliates, successors in interest, chief executive officers, directors, key personnel (as identified in the contract), proposed consultants, or subcontractors of the person, firm, etc."

Appropriate changes to definition of "offerer".

j. Page 35: Line 6 -- Change to read " . suggests or indicates * . 11

k. Page 35: Definition of organizational conflict of interest does not really capture the essence of the term. As

                            -- 3 --

treated in FAR Subpart 9. 5, organizational conflicts are those that arise when a co:r;ttractor is called upon to provide systems engineering or technical direction, or to develop specifications or . statements of work respecting nondevelopmental items. . The contractor I s dilemma is whether to perform the contract in an objective manner or whether to make recommendations that will ensure that the contractor's products or services are required in the follow-on contracts to supply the system in question. This concept is dealt with more clearly in FAR 9.501. This approach is distinct from what may be called "personal" or "relational or interest-based" conflicts where the contractor is called upon to render services to the government, for example, but if* h*e provides unbiased advice he might cause the government to take actions that would harm the fortunes of a firm or industry in which the contractor has invested or that employs the contractor or members of his family. We believe the NRCAR needs to deal with these different concepts separately. At a minimum, the word "organizational 11 should be removed from the definition, although even then we think that the resulting definition would not be an adequate one.

1. Page 36: Line 7 We recommend that you delete "organizational" from "potential organizational conflicts".

Organizational conflicts as defined in FAR Subpart 9. 5 involve restrictions on future activity, whereas "personal" conflicts require restrictions on, or exclusions from, pending contract actions. Also, would it be useful to add 11 , relationships, or interests" after "roles" on the next line, and to delete "relation to" from the following line. On following line -- change "May" to "Might". Perhaps it would be preferable to have a separate definition of "conflict of interest" and "organizational conflict of interest," or even just to use one definition for "conflict of interest" alone. The congressional approach seems to be to define "conflict of interest" in terms of being able to render impartial advice and having an unfair competitive advantage.

m. Page 36: Change . last two lines to read II contract for advice, consultation, or evaluation, or similar services that directly lay the groundwork * . . * "

n. Page 37: Delete first five lines of p (b)' and renumber accordingly, and substitute: "Conflict of interest situations--

Disclosure. Contractors must provide, and the. contracting officer may request, relevant information from an offerer, or may require special contract clauses, such as provided in §2009. 570, in the following circumstances: (1) Where the offerer or contractor provides advice and recommendations to the NRC . . . . 11

o. Page 37: Add to end of (1) and (11), as presently numbered, ."or to any foreign person".

                            -- 4 --

p. Page 38: Add new p (c): Disclosure. Relevant information for purposes of (b), above, includes:". Add description .of kinds of information that will be required.

Existing subparagraph (b) (1) on previous page gives no indication of what kinds of information will be required, or how much. Impossible to calculate the information burden. Also, if determination of what information to collect is entirely up to officials, collection burden may be too great.

q. Page 38: Change subparagraph (2) to: 11 (d) Unfair competitive advantage situations. Unless otherwise provided in FAR Subpart 9.5, the contracting officer may require special contract clauses, .such as provided in §2009.570-5(b):". Renumber remaining paragraphs accordingly. We recommend elimination of the provision authorizing the contracting officer to request information in unfair competitive advantage situations described.

Whether or not an unfair competitive advantage exists can be determined from facts about the acquisition known to the contracting officer. For example, when a contractor is to prepare specifications or is to be provided with proprietary information, that is all that the contracting officer needs to know. No other information is necessary from the contractor to determine the existence of an unfair competitive advantage.

r. Page 38: Delete '.'competitive" from existing ( ii) . FAR 9.502(b) makes Subpart 9.5 applicable to all types of contracts.

Is there a reason for including only competitive actions?

s. Page 38: Line 4 from bottom -- Delete "result in placing

    . result in II and substitute "bestow". Change "for" to "on".

Delete provision already covered on page 37, existing (iv).

t. Page 39: Change (c) to (e). Line 5 -- Change "Proposal" to "Proposals". Line 12 -- Change "would" to "should". Line 16-

- Change "would be" to "is". Line 18 -- Change "perform certain analyses of" to "analyze". Line 23 -- Change "have" to "has".

u. Page 40: Line 3 -- Change "normally could" to "may".

Line 5 -- Change "motivate bias" to "bias the offeror". Lines 6 and 10 -- Change "would" to "should". Line 19 -- Change "whom" to "which".

v. Pages 41-42: Replace Example (4) (ii) Guidance with this:

"(ii) Guidance. This is not considered a conflict of interest. The competitive advantage ABC Co. receives during its performance of the contract to develop information or a product needed by the NRC is not unfair. In accordance with E.O. 12591, the contractor should retain exclusive rights to commercialize the data to other with paying royalties. NRC may pass the data to other companies only as is necessary for use in other government contracts. Any information NRC furnished to ABC Co. for the performance of the contract may not be used in the contractor's private activities 5 --

unless the information is generally available to others. Note: In its negotiations for pricing the contract, NRC should recognize the co11llllercial value of the data ABC Co. will develop. Note also that this does not preclude NRC from negotiating for unlimited rights in data if the agency's mission is best served by dissemination. Special care must be taken to prevent the creation of a conflict of interest or an unfair competitive advantage when a contract is for the development of technology that the agency will require other companies to adopt through regulation."

w. Page 42: Line 5 Delete sentence beginning with "Further". This is potentially a very burdensome requirement.

The contractor is required by this provision to report all proposed usages. It is also probably sufficient merely to prohibit the usage of the information.

x. Page 42: Line 12 -- Delete "the representation in the RFP" and 11 (1) (1) 11 from the citation. Line 17 -- Delete sentence beginning on this line and substitute II Award of a contract is proper. 11 Line 15 -- Change "would" to "must be used to". Last line Change "(d)" to "(g). 11

y. Page 43: Line 1 -- Delete "identify and". Line 3 -- Add "roles, interests, or relationships, or" after "from". Add comma after 11 contract 11

• Line 8 -- Add 11 to be" before "awarded" and hyphenate "sole source" on next line.

z. Page 43. Line 10 Change "representation" to "Certification". This is usual term for this kind of document.

Line 11 -- Change sentence to read "Certifications are designed to assist the NRC contracting officer to determine whether the offerer or contractor has a conflict of interest. 11 Line 15-- Delete 11 (b)" and join next sentence with previous sentence. Change "representation" to "certification" (here and throughout), and add "contracts based on" before "unsolicited" in next line. Line 18 -- Delete* 11 or activities". aa. Page 44: Line 1 -- Add II services II after "Research 11

• Line 2 -- Delete 11 contractual 11
• At end of 11 (4) 11 change add after "required": 11 , if it is necessary to reflect any changes in the statement, otherwise no update is required. 11 This will help to reduce the paperwork requirements on the contractor.

ab. Page 44: Paragraph (c). Rename as 11 (f) 11 and insert after new "(e)" on page 42. Change "(d) 11 to 11 (b) 11 ac. Page 45: Line 2 -- Change cite from §2009.570-4(b) to

§2009. 570-4 (d). With respect to p (b), make changes here (and elsewhere)       depending on how question of definition of (organizational) conflict of interest is resolved.
                                -- 6 --

ad. Page 46: Sixth line from bottom -- Delete "and 11 and add after "award": 11 , and other actions". ae. Page 47: Line 10 -- Regulation states that authority to terminate is provided for in the clauses prescribed. See comment for Page 103. af. Page 47: Section 2009.570-8 does provide for the $10,000 threshold required by 42 u.s.c. 2210a(a) (2). It also does not distinguish between supply contracts and other contracts as required by that paragraph. ag. Page 48: Delete "and concurrence". As written, the decision is unnecessarily complicated. Reduce numbers of officials with veto power and maximize autonomy of contracting officer. Fourth line from bottom: Delete "question of". ah. Page 49: Line 3 -- Add after "DC": ", unless release of such information is prohibited by law or regulation 11

• This retains agency flexibility when sensitive information may be involved.

ai. Page 102: Change "represent" to "certify",

"representation" to "certification" throughout. Line 9 -- Change cite to 11 §2009.570-J(b) (1)" if suggested changes in cited section adopted. Line 11 -- Add "concise" before "statement", delete "in a concise manner" next line.

aj. Page 104: Line 2 -- Add comma after "contractor" and citation; delete "as". ak. Page 104: Line 9 Add "of its" after "all". Clarifies that contractor need only take responsibility for its own employees. It is not clear that NRCAR here intends to task contractor to ensure that subcontractors abide by clause provisions. al. Page 104: Lines 2 and 5 from bottom -- Reference to "organizational" conflicts of interest problematic in view of problems with definition of "organization conflict of interest." On last line, is authority to require full disclosure provided for in the prescriptive portions of the regulation? am. Page 105: Line 8 -- Delete "internal". Substitute statutory citation 11 5 u.s.c. § 552a" for Public Law cite. Line 9

-- Add "other" before "data" and "pursuant to the Freedom of Information Act, 5 u.s.c.        §  552 or other authority" after "public".

an. Page 105: Second line from bottom -- Why is the time limit one year in this subparagraph but six months in the one just above?

                              -- 7 --

ao. Page 106: Line 6 -- Change citation to U.S. Code cite. Add reference to "FOIA, or other authority". ap. Page 106: Lines 12-13 -- Change line 12 and 13 to "products under this contract for private purposes subject to the provisions of this contract." aq. Page 106: Line 17 Delete "to preserve the Government's rights". ar. Page 1 o7 : Line 1 o -- Change "As prescribed" to "When prescribed". Line 15 -- Change 11 as directed" to "authorized". Line 16 -- Change "perform" to "provide". Line 16 -- Delete "work" and substitute "services" for "activities". as. Page 109: Line 2 from bottom -- "all proposed new work of any type" is extremely broad and thus burdensome. provide for disclosure of new work that is "the same as, or substantially similar to,"?

9. Part 2012. Contract de1ivery or performance.

Better to

a. Page 52: Authority line deficient. Use specific U.S.

Code reference wherever possible. Do not refer broadly to acts of Congress or code sections followed by "et seq."* Too much of a burden on the user to find authorizing provisions. Use specific reference.

b. Page 52: Line 8 -- Why, does NRCAR supplement the FAR here, instead of implement it?

c. Pages 111-114: What is the reason for requiring monthly technical, technical progress, and financial status reports more frequently than quarterly? This appears to establish a very burdensome reporting requirement and is highly undesirable unless justified by some specific, clear need.

• Is monthly reporting requirement consistent with 0MB Cir. A-110, Attachment H, Section 4, when applicable to institutions of higher learning, *etc.?

10. Part 2014. Sealed bidding.

a. Page 54: Authority line deficient.

b. Page 55: Line 3 -- Clause .required is for "aJ..l" IFBs, yet FAR 9.105-1 states that requests for information regarding the responsibility of prospective contractors. shall "ordinarily be limited to information concerning (i) the low bidder or (ii) those offerers in range for award." What are the reason and authority for requiring this information for all solicitations?

                               -- 8 --

c. Page 119: Paragraph (a). Duplicative of clause required by FAR 14.201-G(b) (4). Line 5 -- Change cite to "FAR Subpart 9.1 11

• See FAR l.104-2(c) (3) (ii).

d. Page 119:, Paragraphs (d) and (e). Wouldn't it be clearer to remove these provisions from the clause and add them to the NRCAR as positive requirements supplementing FAR 14. 404-2?

Alternatively, simply add supplementing provisions to FAR 14.404-2 and leave language in clause.

e. Page 120: Line 4 -- Add 11 9.105 and" after "FAR".

11. 2019.705-2. Determining the need for a subcontracting plan.

Duplicates FAR. 12. 13. 2020.102. General policy

• Duplicates FAR.

2032.402. General. Subsection 2032.402(b), which contains language on approving advance payment agreements, should be covered under "small purchase procedures" and not included within the contract financing section.,.

14. 2035.71. Broad Agency Announcements.

Duplicates FAR. Specifically, 2035.71(b) (1) and (2) repeat, in part, the coverage at FAR 35.016(a), (b), and (d).

15. 2035.71

• Broad agency announcements; criteria for selecting contractors.

Although Section 2001.301 "Policy" specifically states that policy, procedures and guidance of an internal nature will be issued through internal NRC issuances such as Manual Chapters, directives, or Division of Contracts and Property Management Instructions, this section contains instructional language that should be excluded from the NRCAR and issued through one of the above NRC issuances.

16. Part 2042. Contract administration.

a. Page 87: Authority line deficient.

b. Page 88: Line 11 -- Substitute "for payment of the disallowed cost and explaining" for "as to". "Claim . . . as to why" construction is awkward. Line 15 -- Change cite to "FAR Subpart 33.2".

                                -- 9

c. Page 89: Line 2 -- Add after "report": 11 , or 30 days when payment has not already been made to the contractor". It may be unusually onerous to allow the government to take six months to resolve a disputed item, especially for small businesses. Where payment has already been made, more time can be permitted the government to resolve a cost issue. Second line from bottom--

Change cite to "FAR Subpart 33.2 11 *

d. Page 90: Line 1 -- Change (iv) to read: "Initiate immediate recoupment actions for all disallowed costs paid to the contractor but now owed to the government, in accordance with FAR Subpart 32.6." Transfer (A)-(D) to NRCAR Subpart 2032.6 and add as implementing or supplementing provision, if FAR Subpart 32. 6 inadequate.

17. Part 2045.3. Providing government property to contractors *

• a. Page 87:

b. Page 91:

Authority line deficient. Subsection 2045.370(a) -- Add before "At":

 "Unless otherwise provided for in FAR 45. 302-1 (c), applicable to Government facilities with a unit cost of less than $10,000, 11 *

18. 2052.215-73. Data Universal System (DUNS) number.

Added to FAR 4.603 by Federal Acquisition Circular (FAC) 51.

19. 2052.216-70. Level of Effort.

This provision provides for the insertion of an estimate of the total professional and clerical level of effort for the project in applicable solicitations. This estimate should be segregated for the two distinct categories of professional and clerical services. Such an approach should allow for more meaningful evaluation of offers.

20. 2052.235-71. Private Use of Contract Information and Data.

This clause is inconsistent with Executive Order No. 12591 and this Administration's policy of promoting commercialization of data developed under Government contract. Please contact Wayne Leiss (395-3501) of this Office for further information on efforts to develop a FAR clause on technical data.,

                            -- 10 --

ENCLOSURE B NRCAR Provisions with Possible Government-wide Implications 2001.602-3 Ratification of unauthorized commitments. 2009.406-3 Procedures. 2009.407-3 Procedures.

• 2009.470 Appeals.

2009.570-1 scope of Policy. 2009.570-2 Definitions. 2009.570-3 Criteria for recognizing contractor organizational conflicts of interest. 2009.570-4 Representation. 2009.570-5(b) (d) (e) Contract Clauses. 2009.570-6 Evaluation, findings, and contract award. 2009.570-7 Conflicts identified after award. 2009.570-8 Subcontracts. 2010.004 Brand name products or equal. 2012 .104 (a) (b) (c) NRC clauses. 2013.505-2 Agency order forms in lieu of Optional Forms 347 and 348. 2014.201-670(a) Solicitation provisions. 2015.407-70(b) (c) Solicitation provisions and contract clauses. 2015.604 Responsibilities. 2015.605 Evaluation factors. 2015.607(a) Disclosure of mistakes before award. 2015.608 Proposal evaluation. 2015.611 Best and final offers. 2015.612 Source Evaluation Panel (SEP) structure. 2016.307-70 Contract provisions and clauses. 2016.506-70 Contract provisions and clauses. 2019.705-4 Reviewing the subcontracting plan. 2022.901-70 Contract provisions. 2027.305-3 Follow-up by Government. 2035.71 Broad agency announcements. 2042.803 Disallowing costs after incurrence. 2045.370(a) Providing Government property (in general). 2052.209-74 Contractor organizational conflicts of interest. 2052.209-75 *-Language for follow-on contracts. 2052.209-77 -Language for task order contracts. 2052.210-70 Brand name products or equal. 2052.212-70 Preparation of technical reports. 2052.212-71 Technical progress report. 2052.212-72 Financial status report. 2052.214-70 Prebid conference. 2052.214-71 Bidder qualifications and past experience. 2052.214-72 Bid evaluation. 2052.215-70 Preproposal conference. 2052.215-71 Proposal presentation and format. 2052.215-72 -Language for negotiated task order contracts. 2052.215-74 Key personnel. 2052.215-75 Travel reimbursement. 2052.215-77 Project officer authority.

2052.215-78 -Alternate 1. 2052.215-80 Award notification and commitment of public funds. 2052.215.82 Contract award and evaluation of proposals. 2052.215-83 -Cost more important than technical merit. 2052.216-70 Level of effort. 2052.216-71 Indirect cost rates. 2052.216-73 -Alternate 2. 2052.216-74 Task order procedures. 2052.216-75 Accelerated task order procedures. 2052.222-70 Nondiscrimination because of age. 2052.235-72 Safety, health, and fire protection.

                  -- 2 --

r - Enslosure C Federal Register / Vol M. No. 241 / Monday, December 18. 1989 / Notices 51805

 '      Written Comments: Interested~ n a may file written commenta with e the adequacy of those efforts, and suggest alternative approaches or effectiveness of the regulations prescribed pumumt to the section.

Commiaaion concerning tennination of additional lnitiattvea. Agencies, unions, SUPPLEIIINTARY INPORMATION: A the aforementioned respondents. The academia, private companies and proposed Policy Letter waa published on original and 14 copies of all IUCh professional 8980CiatfODI will be June 7, 1989, at 54 FR 2443S. Twenty-six cornmenta muat be filed with the represented on the Advieory Committee. comments were received by OFPP in Secretary to the Cornmlasfnn. SOO E ti I EC riVE DATE: January Z, 1980. response to its request for commenta.

     =

StreetSW.,W~DC2.0436.no POii FUR11fD IM"ORIIATION CONTACT: The following IUilllll8rizea the major later than 10 days publication of Katherine Naff, Office of Policy and iaauea raised and explaina how OFPP this notice in the Federal Resister, Any Evaluation. Merit Systems Protection responded. desiring to 811bmit. document Board (202) ~1833. J. Definition of unfair competitive

     = o n thereof) to the Commission in                                                      advantage. Several people requested ence must requesha1fldential         Dated: December 13, 1989.

Rabert&Taylm, that the term '"unfair competitive treatmenL Such requesta ahould be advantage" be defined and a definition directed to the Secretary to the Clerk ofthe Board. hu been provided. The underlying Cornmisaion and must include a full [FR Doc.119-29361 Flied ~15-88: 8:"5 am] general concept of the definition la that statement of the reuone why aulltaCODENOCMMI people lhould not benefit from exclusive confidential treatment should be accesa to information. Thia la intended granted. The Commiuion will either OFFICE OF MANAGEMENT AND to be consistent with and to mpplement accept the submielion in confidence or BUDGET the provisiona of FAR Subpart 9.S. return IL Conflicts of InteresL Office of Federal Procurement Po6cy Organizational FOR FURtHU ..,ORIIATION CONTACT: 2. Definition of "conflict of Interest" Ruby J. Dionne, Office of the Secretary, Polley Letter on Conlultantl and One respondent observed that nowhere U.S. International Trade Commission. Confllcb of Interest; lnYHatlon for doe the definition of wconruct of Public Comment telephone 202-252-1802. interest" make clear that the consultant Iuued: November 28. 1989. AGENCY: Office of Federal Procurement must be "acting in conflict with a prior By order of the Cornrnlsslnu. Polley, 0MB. and continuing obligation to another ACTION: The Office of Federal party," and that the examples given in Xmmeth R. Melon, section 4(d) of the Policy Letter Secretary. Procurement Policy (O= la publiahing a Polley Letter dealing wi consultants encompass perfectly ra=slble (FR Doc. 5-29431 Filed 12-15-89; 8:45 am] activity. We believe, owever, that it Is and conflicts of interest 9IUJHQ COOi: ~ 1ufflcient to require "impartial"

                                                ~ IIIMARY: Thia OFPP Policy Letter            assistance or advice. The examples establishes (a) government-wide policy        given. furthermore, are cited a11 MERIT SYSTEMS PROTECTION                   relating to conflict of interet 1tandard1    1ituatione in which there ill a potential BOARD                                      for person who provide consulting            for conflicts to arise.

services to the United States Another respondent pointed out that Eatablllhment of Uie Advisory Covemment or to person who contract we have provided no standards by CommittH on Federal Workforce with the United States. and (b) which

• contractor can reasonably QuaJtty Assessment determine whether a possible conflict proced=rote compliance with those I exllta. We have added explanatory I AG£NCY: Merit System Protection Board.-* - -

ACTION: Notice of establishment advi ory committee. of an The policy It inued pursuant to section 8141 of the 1989 Department of Defense Appropriation Act. Public Law language to the definition. but also envision that the writers of the regulation that will implement this No.100-463. 102 StaL 2270-47 (1988) and Policy Letter will provide further i I ection e of the OFPP Act. codified at 41

I

SUMMARY

This notice la published in clarification where neceasary to permit accordance with aec. 9(a)[2) of the U.S.C.404. contractors to make more meaningful Federal Advisory Committee Act (Pub. Section 8141 direct that government- '"bid/no bid" decisions and to permit L 92-463) and advises of the wide regulatiom be promulgated to contracting officers to make more establishment of the Advisory .implement the proviaiom of this Policy informed judgments about whether a Cmnrnittee on Federal Workforce Letter no later than 180 days after the conflld of interest may be pre8enL

• l Quality AlsessmenL The committee ii date of issuance of the policy. Several respondents pointed out the . I being established jointly with the Office of Parllonnel Management The Before the i11suance of the regulations redundancies in the proposed definition required by action 8141. the President ill of conflict of intereaL Accordingly, we r I Chairman of the Merit Systems empowered to make
• determination substituted "impartial" for "impartial Protection Board and the Director of the that the regulations would have a technically sound. or objective."
• Office of Personnel Management have aignlflcantly adverse effect on the Another suggestion was to make the determined that establishment of this accompliahrneut of the mision of the definition of wconflid of interest" in the Advisory Committee is in the public Department of Defense or other federal Polley Letter consistent with the FAR Interest-The purpose of the Advisory government agencies * * * ." 9.501 definition. We believe the two Committee ill to provide the opportunity Submission of a report containing an definitions are consistent However, for for a wide spectrum of experts to review adverse effect determination to
• the Polley Letter, we have relied the various worlcforce quality Congress will automatically nullify and principally on the definition of conflict assessment efforts underway or void the regulations. of interest provided in 1977 legislation contemplated within the Federal Section 8141 also d.irect the pertaining to the Department of Energy CovemmenL The committee will advise Comptroller Gene,al to report to at 115 U.S.C. 789 and 42 U.S.C. 5918.

the Merit Systems Protection Board and Congress no later than one year from the Furthermore, FAR Subpart 9.5 the Office of Personnel Management on date of enactment his assessment of the emphasizes restrictions on future

51808 Federal Register / VoL M. No. 241 / Monday, December 10. 1989 / Notices activities. whereas aectiona 10(e] and 12 included, only thos*e involving thia the Policy Letter has sought to avoid a of this Policy Letter explicitly authorize dilcretlonary element. proliferation of definitions of "advisory contracting officers not to award a Thus. a "'tech rep" who ta engaged to and assistance services" by contract at all, as opposed to writing maintain a diesel tor will indeed Incorporating by reference the restrlctioill applicable to future be rendering a ~ Nl'Vice, but he definitions in Circular A-120.

• actlvitiea into a contract to be awarded. will maintain the equipment according 8. Same or 6f.W6tantially similar.

(FAR 9.501 provide* a1 follows: An to well established technical atandanu Respondents expresaed concern over

       ..organizational conflict of interelt exiatl likely found in a maintenance manual          the requirement that information would when the nature of the work to be                  Theae altuationa are to be contraated    need to be reported about clients when ,

performed under a proposed -with an engineer's recommending that the consultant ha1 rendered "services Govemment contract may, without 1ome an XYZ Corporation antitank milaile be respecting the same subject matter of restriction on future activities, (a) result purchased rather than one produced by the instant solicitation. or substantially In an unfair *competitive advantage to *the ABC Corporation when he or she slmilar to it * * * *" They believe this the contractor or (b) impair the has done work for XYZ on antitank will adveraely affect consultants who contractor'* objectivity in performing missile* In the past. render specialized services relating to a the contract work.") Similarly, if an accountlng firm ii narrow range of activities, u, for

3. Providing for contractor standards hired to install an accounting system example. generic inventory control of conduct. Several respondents already identified In a aolicitation. this systems. We have clarified. the questioned provisions relatiq lo is diatinguisbable from ill being hired to requirement by changing the language of internal standards of conduct and codes recommend which system the paragraphs 8(b)(5) and 9{b)(4) of the of ethics. Another objected to the lack of government should install. A comultant Policy Letier to require information with full disclOBw-e afforded flrma with such that tests auto emissions for an auto respect to "the same subject matter of standards. We have reconsidered this manufacturer provides a different type the instant solicitation. or directly

 -    portion of the Policy Letter and. based        of service when it advises the               relating to such subject mat!er * * * ."

on the comments received. have deleted Environmental Protection Agency on This approach emphasizes the need for these promions. emiasion standarda for autoe. more of a connection to the instant

4. Consistency with Deportment of In all the exclusions provided £or solicitation than that inherent in the

*-    Energy conflict of interest resulatory         there is the underlying belief that they     idea of substantial similarity, and prosram. The Department of Energy              either do not involve the maiing of          focuses attention on conduct that bas urged OFPP to recognize an exception           highly discretionary decisions or that       the greatest potential for conflicts of from the application of the Polley Letter      the potential for abuse, even if present,    Interest.

where an agency'* conflict o£ interest is not 1erioua. Alao, we llOle the fact 9, Agency head waivers. Some program goes beyond the intent and that many profesaionab are governed by reapondents requested a different coverage of the proposed Policy Letter strict codes of ethica, u well aa the fact provision £or agency head waivers, or is baaed on other 1tatute or aathority that even within a lingle firm it ii namely that we provide for a waiver if requiring conflict of interest provisiona. poseible £or informal peer review to play the services In question are "integral to In formulating our policy we relied a part in ensuring adherence to the operation of a program or system." heeV1ly on the same statutory authority established technical principle, and We did not adopt this approach be~use that is the basis of the Department of procedures. Nonetheless, a 1ensitivity to we think the concept of integral services Energy's conflict of interest program. 10 conflict of intereat ilsuea ahould guide is ambiguous. Based on other comments, there should not be a conflict between government and private officers and we have clarified that the waiver

• A the approach chosen by the Department employees at all times. even when thia authority ii to be exercised on a

. . . and this policy. Where the Department Policy Letter or other laws or regulations contract-by-contract basis, and only by

ls subject to a specific 1tatutory do not impose specific duties. Proviliom the head of the agency.

mandate, it must, of course, comply. for excluaiona in this Policy Letter are 10. Thresholds. time periods. We did A 5. Certificate unnecessary. One not intended to encourage wa)'I of doing not adopt the suggestion to lower and

• respondent objected to calling for the busineBS that are not in accordance with make uniform all thresholds provided use ofa certification. We believe, the highest ethical 1tandarda. See for in the Policy Letter. Nor did we however, that certification offen a aubsection B(b) of the Policy Letter, adopt a suggeation that we raise the reasonable mean1 for ensuring 7. Reexamine reliana OD Circular A- thresholds. We have tried to establish heightened attention to conflict of 1ZD. One respondent IU88ffl8d that In thresholds that will allow the Interests by both government and *considering how to define advisory and government to collect meaningful data industry personnel, in keeping with the aslistance services, we ahould look at yet not burden large number, of intent of the statute. . the conceptual probleJD1 with Office of contracton where the riak of abuse is

6. Clarificalion of definition& Management and Budget Circular A-120, low. As practice dictates, we can revise Comment& received bisJiligbt the Guidelinel for the Use of Advisory and the thresholds in the future. A related difference between nondiscretianary

• Assistance Services. The respondent auggestion waa made to make the technical or engineering services and contends that the assumptions certification proviaiona apply only to services that llBSiat in formulation of underlying Circular A-120 are outdated prm:urementa of major systems. We policy and declslonrnaking. One to the extent that the Competition In believe th.la la to be too l'eltrictive a respondent cmrectly pointed out that Contracting Act has injected more provision. We also did not adopt a our definition o£ advisory and competition into the proceu of acquiring suggestion that marketing consultants be assistance aervices appeared to exclude advisory and assistance services. required to report on their activities for engineering and technical services, There ia merit to tbiJ view and it will a period longer than 12 months.

when in fact those kinda of services do be taken into account In considering the 11. Apparently successful of!eror. One involve discretionary decisions. recommendations o£ an inter-agency respondent 1uggested that we require Accordingly, we make clear that not all working group that is studying waya to certificates of others beside the engineering end technical aemcea are improve Circular A-120. For the present, apparently 1UCCe1Bful offeror. Thia

Federal Regtster / VoL 54, No. 241 / Monday, December 18. 1989 / Notices 51807 would have Iha advantage of en.aurl.ng information and la hance an information ADDRUSES: Com.menu should be that contractors addresa conflict of collection request requiring clearance submitted to the Office of Management Interest questlom at the earliest from the Office of Management and and Budget. Office of Federal opportunity and of ensuring that a Budget's Office of Information and Procurement Policy, Room sozs, New succeasful offeror dlacoveTed to have a Regulatory Affairs. While the Policy Executive Office Building, 7Z5 17th conflict of interest on the verge of being Letter itelf requires no 1ubmiasion of Street. NW., Washington. DC 20503. awarded a contract does not daJay the data. the regulaUom Implementing the POR PUlfflml INPORMA110N CONTACT: procurement unduly if it happens that an letter will require Paperwork Reduction Richard A. Ong. Deputy Anociate award cmmot be made to that Act clearance. . Administrator, Office of Federal contractor. Because of the Importance of 18. Prime contractor,. role in Procurement Policy, 72517th Street. the confi1ct of intereat issue. we believe proce86lng rnarketfns comnutant NW.. Wuhington. DC 20503. Telephone that cantracton already have the irrfonnation. One respondent suggested (202) 39&-6810. inceDtive to addren the lm:u! u early that the information to be 1ubmitted by u pos,lble. We have also provided new a marketing coruraltant be aent to the Dated: December IS. 1989. language in paragraph, 8(c) of the Policy contracting officer, not the prime Allan v. Bumwi, Letter to en~e}his. We agree that contractor. We did not adopt this Administrator Detli/Jnatil. there la a risk of delay in cmr approach suggestion becaWJe we want tho prime December 8, 1988. but we believe the flexibility available contractor to be a participant in the Polley Letter 89-1 in the device of modifyina contract procesa of watching for unfair TO nm HEADS OF EXECU11VE language to avoid or mitigate con.Dicta competitive advantages on tha part of DEPARTMENTS AND will reduce that risk. Finally, our people or fl.nns It m.lght wim lo engage. ESTABIJSHMENTS approach D1iolrnires the burden on Thus will requi.rs marketing consultants

SUBJECT:

Confi.ict of l.ntcre&t PoUc!es contractors. to provide information bearing on any _ Applicable to Consultant., 1.2. Reliance on contractor judgments. possible unfair competitive advantage 1. Purpoff. The purpose of this Policy One respondent quesboned our reliance Letter ii (a) to eatlibliah policy relating to they might provide. We anticipate that confilct of interest stand.arch for persona who on a form of eelf-certificatJon in thil requirement will have the efiect provide comultmg aervtces to tho pare.graphs 8{c) end 9(b)(5) of the Policy over time of causms marketing go,,-ernment and to Ill contracton and (b) to Letter because of the subjectivity consultants to avoid activities that may provide procedure, to promote comphance Involved 1n such a device. We recoe111%e IAad to unfair competitive advantages.

• with those standard&. ,

the valid.Hy of this observation but *r.ue Idea that prime contractors misht bo Z. Authnrity. Thi11 Policv l,ttPr Ill J.Ssued choose not to devise an alternative tasked to collect information from pursuant to section 8141 of the ll!BY approach that caUJe1 large a:nounta of marketing conaultanta in 1eaJed Department of Defense Appropriatlon Act. raw information to flow to the hands of envelope& would eolve the Pub. L.10().-483, 10Z Stat. 2270-47 (1986) tha contracting officer. We believe the confidentiality problem but thi1 would (bereinafler referred to ** '"the Act") and approach selected adequately heightens 1ection e of the Offlce of Federal Procurement effectively remove the prime from the Policy (OFPP) Act. codified at 41 U.S.C. eensitlvity to confuct of interest process. the opposite of the result we ection 404. problems. a."8 trying to achieve.

13. Three-year option. One respondent 3. Background. Thia Policy Letter 11

11. Large consulting organizations. Intended to implement 1ect.1on 8141 of the suggested that the provision In section Several respondents pointed out their Act. That sect.Ion providet. in part. as tom of the Policy Letter permitting the concerna about how the policies in the follows:

contracting officer to request up to three Policy Letter will affect large conaulting "{a) Not later than 90 day after the date of

,eantof data la a 11gnificant offices that emply many people in many enactment of th!. Act the AdmmJ,trator of requirement. We agree, but note that branchea around the world. particularly the Office of Federal Procurement Polley these data can only be requested upon when the branches operate aball l11ue a policy,..and not later than 180 approval of the head of the contracting Independently or centralized ' de.ya thereafter government-wide regulations

. activity. We anticipate that thl1 lhall be lnued under the Office of f'~eral manasemenL They also pointed out that Procurement Policy Act which aet forth: authority will be sparingly med. and their acoimtir.g system, have not been then only for limited periodl of time. "{1) conflict of Interest standards for designed to traclc:. conflict of interest penpn, who provide consulting 1ervicea

11. Prime contractor retention of data. We han tried lo define the kind of d811crlbed in lllhuction (b}; and marketing coil8Ultant certificates. One information Wtt wish contracton to "(%}procedures.including such registration.

respondent suggested that we provide provide so that firms. even large fhma. certifil:ation. and enforcement requirements for the prime contractor to retain the will be able to make reaaonable u may be appropriate, to promote marketing consultant's certificate in its compliance with IUCb tanderd.l. inquiries. Nonetheleu. the regwation files. similar to the procedure writen may If they choose. provide for * "{b) The regalation required by 1ubsection established in section 2.7a DI' the OFPP flexibility on the part of mch firms, euch (a) shall apply to the followins types of Act. codified at 41 U.S.C. section 423. 88 limiting the duty to inquire within comult.ina ~ relating to procurement integrity. We "'{1) advisory and auillance Nrvice certain geographical areu. 8Ubafdiarles, provided to the government to the extent did not adopt thia suggestion beca11Se we want the marketing consultant', or work sroups. among other things. DeCell8lJ to identify and evaluate the certificate to be addressed to the DATU: Thia Polley Letter la effective 30 potential for confilcts of interest that could be government and to be retained by the days from the date of muance on the prefudiclal to the lnternta of the United government in the event of a false first page of the Policy Letter. Booause of Stater, the necessity for implementing '12) service, related to 11upport of the statement Also, we want all certificates *, preparation or 1ubmimon of bldi and that contain information relating to any regulations, the Policy Letter ill iaaued in propoaala for federal contracts to the extent unfair competitive advantage to be final form now, but will apply only to that inclusion or auch ervice, in ruch delivered to the contracting officer. 1olicitatlons issued after the effective regulations i. neceu.ary to identify and

15. PaperwoJ:k Reduction AcL One date of tha regulations. Commenta on evaluate the potential for conflicta of interest respondent auggeated that the Policy the Policy Letter must be received by that could be prejudicial to the lntereata of Letter requires aubmbsion of January 17, 1990. the United Statu; and

li1808 Federal R.eglater / Vot 54. No. 241 / Monday, December 18. 1989 / Notices

     "(a) IIUCh other senica related to federal             (3) 11r'Ving u

• c:oD1Ultaot to a contractor award. Ma?ketlns CODIU.ltanta ehal1 aho be cantracta .. may be IPflclfied In the Neldq the award of a contract (or tee.kms to required to certifJ that the, have provided no npl.Uon1 prescribed 1IJlder eubaec:tion (a) to be awarded the contract directly) after Information to the contractor employing them the extent DeCe1118.rJ to identify and evaluate havlDi acceN t o m aelectlon or that would stve the contractor an unfair the potential for comlicta of Interest that . proprietm:v information not avaJlahle to other competitive advantage; confd be prejudidal to the mtentsta of the ptll'1IOl1I oampetlns for th.a contract; and (d) Fedsal p:ocarement oftlc:lale lhall Uni.led Stat.ea." (4) pl'O'fkUDg adYice and aaJstence to an encounse contractora lo comlde.r carefully

4. ~

    ,(a) ..Advilory and aaiatam:e Nrrices"
                                               .        asenc, where mch advice md uilltance oould benefit the CO!ltractor'I other dienC,S.

a. potential for conDlcta of lnterett fn all o!

durJr acttvitiN &IIOOlated with federal mean1 adfl80l'J and uutam:e tlefflCN .. (d) An "'mlfatr competitive advantqe" procmement. .md mall be llmUlitm to the deBned In 0MB Clraular No. A-120. exfsta. tn addition to the lituatiom add:reued appeannc::e of conJlicta of. fntereat In any

 "'Guldellnel for the Un of. Advf8ory and               ID FAR 8ubpmt a.s, where a contractor                 contracting actionl; and Aulltmce Semcel... dated )'anuary t, 1888,             competins for award of IIDJ faden1 conlract              (e) Federal p.rocmement Ngtl]aUona that and any amendmenta thereto. Only thON                  poilN&eel                                             Implement tbfa policy and addrea conflictl compensated servk:el provided punuant to                  (1} proprJebarJ lnfmmaf:loa that WU                of lnteral ehall tab Into account the need to nanpenooalter'rica CODtrad:I 1119 covered by           obtained-trom

• l(N'wnmen1 offk:ial without (1) encomage pmtlclpltloo orbisblf qualified

 ~Poll.ay~.                                             proper amhom:atlan. or (1) Sutfi l8l'Yicee lncb:ide-                                                                            pmom and fitma ID federal proc;uremeu.t (Z} IOID'CI aeJection Information that la          Pl'08fl.1DI; (2) enhance and Nfepard the (l} een1cu provided b7 IDdlvldml expertl           releYaDt 10 the CClll1raCt but JI not available to amt conailtanta:                                                                                             Nation'* Industrial bue; (3) promote full and all oompetlton. ud                                    opm competition In the award of government Pl) IIIIIDapment and prot'elleforull support       ascb lnlormatton would ullat that contractor
 ~

c:ontracu; and (4) Improve the overall tn ohklnins Ifie contract. CW) the conduct and preparation of etudies. (e) "Marbtlns Consultant" means any efl'ectlYeDeal and efficiency of the analyses. and evaJuatiom; and govemmant'1 procurement programa. independent contractor who fumlahea advk:e, (Iv) engiDeerins and lecbnlcal aervices. 'I. BstJpor,&Jbilitiu of the DefertH Information, direction. or Ulil1anee lo any (2) ExclU8ions. In addition lo the excluaton other contractor in IUpport of the ~ d o n AcqulsitiDll &gulatory Council and Civilian fn 0MB Circular A-120, the following or nbrniNlon of a bid or propoi8l ror

• Agency Acqu/Jutlon Council. 1be Coundla aervicu are excluded from the coverage of aovemmcmt contract by wch contractor. An lhall promuJsnte the government-wide this Policy Letter: Independent contractor la not a marketing resulationa apeclfted In eection 8141 of the (I) routine eng!neerina and technical consultant If he or abe would be rendertna Ad within 180 daye of Iha effective d.ite of l1lI'Ylcel (nch aa hatallllbon. operation. or advutorJ and anlatance lenicel pursuant to coaform thi1 Polley Letter. Such regulatio:ut lhall maintenance of l)'&tem. equipment. 10ftware. any of the exduaione In pmqraph f(a){2), to the polidea eatabllahed herein.

componentl, or facilitiea};

• Only 10llcitatio1U1 lnued after the effective (II) routine legal, actuarial. audltins, and above.

5. Bx"1npt.ion& 1be followlna may be date of the regulation, are affected by thae accounUng aervicea: and (ill) tralning ICMCeL or exempted from tha application polldea and polidet.

• L /1apon6JblltiH ofprime t:011traclors (b) "Agency" means an executive regwatlolll luued under till, Polley Letter.

(a) lntefliaence octivitia. Sorvlcea IJIIIPk,ymg marMlJn8 consu/tanta. An department ll)l!dfied ID 1ectlon 101 of title a. Individual or firm that employa. retaina. or United States Code: a military department rendered In c:onnectlon with intelllgence activitiet aa defined ID MCtion 3.4(e) of eqqee one or more IDll?bting consultants In apecliied in aection 102 o! auch title; and connection with* federal acqu.laiUon muat Independent eatnblilhment u defined In ExecuUve Order 1Z333 or a comparable aecUon 104(1} of 111ch title: and a wholly definitional teetion In any ncceuor order, or tubmit to the c:ontractlns officer. with repect In connection with apedal lccetl prosrams; to each marketing eon1ultant. the certificates owned SoVmmumt corporation fufly subject dacribed below, If the Individual or firm 11 to the provilionJ of chapter 91 of Utle 31, and (b} Public lntfnWI comideratloa.. &p.dffc notified that It II the apparent 111CCe11fuJ United Stain Coda. (c) "Conflict or lnternt" mHDI that contract actlonl where the head of an agency of!'eror. condition or circumstance wherein* person snmta a waiver on tha bait of the public (1) Certificatll required. No certtflcetea ant Interest. NqUired for contracts of l:ZOo.fXXt or leu. For II unable or la polellUally unable to render c:ontracta over S200.000. the contractor muat impartial asal1tance or 1dvfca to the 8. Policy. Agencln IDUlt comply with the government because of other activitiea or followlns polldes: file the certificate dest:ribed below with (a) Responaibility for identifying and rapect to each marbtlng coDIUltant. or reJationshipa with other pen,om. or wherein a pcnon ha1 an unfair competitive preventing potential co:nfllctl of lntem 1n provide

• written 1tatement to the contracting advantage. aovamment contract 11 Iha.red am.ans the officer aivfns the reuou why no IUch lbe critical element ID thl.t definition la the aovsmmant contracting officer, 1he requeater certi6.catton can be made. lbe reaaona Biven eximnce of a ndationlhip or potential of the eemce. and other aovemment ofDcla1a Diut be aatilfactory to the contracting officer relatiomhip that might came an offeror, if with acceaa to applicable IDformatlmi. The u co why am:b cmti&ata cannot be made.

awarded a contract. to make reapomfbilitJ for dec1dins wbtther to award lb) Conbmta of c:erti/kat& 1be certificate reoommenrlation1 or intmpretatiom that. at a particular contract. boweYer, ruts with the to be aubmltted muat contain the following: the expeme of the p:rvemmelll. fnor the pvmment contractiag offu:er; , (1) the name of the agency and the number lnlerettl of the offeror dlnrctly, or thou of (b) Prior lo cmdiad award. contractms of the IOlicitation In question, pereom or m:rtitle1 prelflDtly or potentially officers lhall take appn,priate stepa lo (2) th.a name. addreaa, telephone nmnber, able to confer a benefit on the offeror. identify and mduate the potential for and fedlll'lll taxpayer idenHflcation number of Typea of potential confiicta include. but are conflicls of IDterNt that could be prefudidal the madtetlns cvmultant; not limited to. the following: to the IDteratl or the United Stat&I with (3) the name, addren, and telephone (l) eveluatlng 11. contractor's. or potential regard lo persona who pnmde advllory and number of a reapomJble officer or employee contractor' producta ar nmcea. where the aulstance Anica lo the govemment. and to of the marbtins consultant who bu penonal evaluator h or wu aubtrtantiaily Involved ID tab etepe Id noid or mitigate any coaflicta knowledge of. th.a marketing COD.1Ultant'1 the de,elopment or marketing of thote

• believed to e:mt: aimiJar actkma will be fnvolvement in 1he contract:

products 01' aenrices; taken with reprd to any unfair competitive (4) a deacription or the nature of. the (2) aerving u a consultant to a contractor advantage that marbtlng comultantl aermu rendered by or to be rendered by M!eking the award o! a contract (or seeking to 't,rovida to contractors; aech marketing conaultant; be awarded the contract dlrectly) Jfler (o) Federal contractlni officers shall (Ii) hued on Information provided to the preparing or assisting aubatantially In the require. for contracts covered by thia Polley cont:actor by the maricetlng con.wltant. If any preparation or specificattona. or other Letter, that lhe apparent IUCCCUfu1 offm,r marketing comultant II rendering or, ID the 12 lignt6cent contract provuriona or provide ce:rtlfied Information describing the montht preaidlng the date of the certificate. requirements, to be med In the llllm.B

• nature and extent of any conflict, of interest ha randered nrvtcea respectfns the same acquiaition; that may exiet with respect to the propoaed IUbject matter of the Instant aolldtation. or

Fedeml Register / Vol 54, No. 241 / Monday, December 18. 1989 / Notices 518CY.J directly relating to nch subject matter, to the a foreign government or person) retpectfng with the bid or offer In queetion snd (bJ any govmnment or any other client (Including 811}' the same aubject matter of the 1.natant other 11.lb,tantive Information available to fure1gn 8(Ml1'11JJl<<llt or person), the name, IIOlicitation. or directly relating to such them. Tha oontractlng offlcar 1ball award the addren. and tel.epliou number of the client IUbfect matter, tha name. addren. telephone contract to the apparent 1ucce11ful offeror or clienti. and the name of a raponaible number of the client or clilnt{s).

• detcription unleu B conflict of inten,at or unfair officer or employee of the marketing of the 1enlces nmdentd to the pnmOUI consultant who is knowledgeable about the climit{s), and the name of* responalble competitive advantage ta believed to exist aervicel provided to such client{1), and a officer or employee of tha ofl'eror who II that cannot be avoided or mitigated. Finally, description or the nature of the urviCM knowledgeable about the liNlrvlcel rendered before the contracting officer decide* not to rendered to ll'OCb client{a};
• to each cl.lent. 'Ihe apncy and contract award a contract baaed on conflict of interest (6) a 1tatement that the person who ligna to number UDder which the services were comlderatiom.. be or aha shall notify the certifk:ate for the prime contractor hu rendered must also bA Included. If applicable; prime contractor, or the contractor rent!ertns informed the marketing consultant of the {15) a statement that the penan who signs adviiory and B4111stance aerrlces. and emtence of lhil Policy Letter and uaoclated the certificate has made Inquiry and that. to provide a rea110D.able opportunity to respond.

regulationa: and the best of hia or her k::lowledge and belief. Where the contracting officer finda that it 11 (7) the lignature, name. title. employer'* {a) no actual or potential conflict of interHt In the best lntereat of the United States to name, addre81, and telephone number of the or unfaJr competitive advantage exiatl with award the contract notwttrustandmg 11Jch persona who llgned the certifk:atu for both respect to the adviaO?J and anlatance the prime contractor and the marbting earvicel to be provided In c:onnect.lon with conflict or unfair cmnpetitive advantege. the consultant. the matant cm.rtracL or (b) that my actual or contract file ehould be documented to reflect (c) Marketina COllll:Jltant certi.ficate. In potential comlict of interett or unfair the basis for that flndms. addition. the prune contractor will forward to competitive ac:mmtqe that does or may exist (e) Other infonnation. This Policy Letter the contracting officer

• certiflcate 11ddresaed with respect to the contrad In queaUon baa does not prohibit contractlna officen from to the government and nsned by the been communicated In writing to the requeat.lng other Information relevant to the marketing comu.ltant that (I} such marketing contracting officer or bil or her goals or thlll Policy Letter. In addition. In con11ultant haa been told of the existence of representative; and the regulatiom Implementing thta Policy (6) the 1ignature, name. employer's name, apecial casea. and If approved by the head of Letter end (ill IIUth marketing conlUltant ha* addreu, 1nd telephone number or the person the contracting activity, the contracting made lnquJry, and to the best of his or her who signed the certificate. officer may request that the C811lficates

- knowledge and behef. be or she ha.a provided 10. RespoMJbilitie, ofEx<<:UtivtJ Branch deacribed above. be made with respect to a no umair a,mpetitive advantage to the pnme Agencla period u long ea. but no longer than. 36 contractor with respect to the lierVic8I (e) Mainten~ of data fil86. t:ach agency months preceding the dete of the certificate. rendered or to be rendered In connect.Ion m1111t maintain the certificate, delCrlbed by 11. Rst,por,8ibllitlea of thtJ Federal with the solicitation. or that any unfair thii Polley Letter I.I\ the contract file. Acqulaitlon B.egulatary Council. All competitive advantage that. to the beat of hi* Agenclea may extract and categorize 1uch pernment-wide regulatiotU to be iuued or her knowledge and belief, dou or may information from theae fll11 and consolidate punuant to section 8141 of the Act will be exist. haa been discloaed to the prime them In a central regh1try, u appropriate, provided to the Federal Acquiiltion contractor. Prime contractor, may request lllbject only to the requirement to nfeguard 1uch II certificate from II marketing information (1) u requested by the submitter Regulatory Council for review not leu than conaultant. or make l.nqnirie. of any of the certificate u confldenUal. temltive, thirty day1 prior to publication ln the Fedar.u marketing comultant. at any time they privilesed, proprietary, or otherwile not Resl,lter for public commenL ntg0tlate !or the marketing co111Ultant'1 releuable, or(%) hued on Independent 1Z. Remedie,. Penom required lo certify In nmcea. or afterwardl. until an award 11 qency detenninationt not to releue the accordance with thfl Policy Letter', znade. to 111tllfy themselves that the Information pum,.ant to tht Freedom or UIOCiated regulationa but who fail to do 10 marketln& CQJ18Wtant haa provided no unfaJr Information Act. or other authority. may be determined to be ineligible for award co!1':~~adlbvilan,*u~ofctmtracton ,_,vi_,,_ (b) Availability of data. Certificatn must of a contract. MlarepteNntation of any fact

    .. ,...,,,,.,._    "'"                ,-.- ....,~   bemadeavailabletodepartmentora,ency                 may 1'81ult In suspenaion or debarment. aa advuor., and aui1tanct1 nrvi~ Thon                     contractl.ng officen and their 1UP11f1ora, Individuals or finnl providing adviiory and            adviaol'I. or their deslgneea. &1 well u to         well u penalties IUIIIOciated with false umta.o.ce lelVicea to the governmant must              ,.._,.. _ _ , and..,...__...,, andit                c:ertificationa or IUCh other provisions submit to the contracting officer the                  ~-r1...........             0 ~*--                  provided for by Jaw or regulation.

cm1.iflcate or certl.Bcatlll dncribed below lf officials. 13. lnforrnation contact. For information the individual or firm II notfflad that it is the (c) Noadl6ciot11Ufl of lnfonnation. Agencies regard.Ing thta Policy Letter pleue contact apparent succeuful offl!t'Ol'. and departments must protect. to the fullHt Richard A. Ong. Deputy Anoc:late (a) Certificattl required. No certificatea are extent perm1tted by Jaw, all semibve *Adminimator, the Offlce of Federal required for contracll oJ. '25,000 or ie... For buafnnl and other Information submitted contracll over $25.000. the certi.flcate punwmt to any policy devised or replatlon Procurement Polley, 725 17th Street. N.W.. deacribed In (b). below, muat be filad or a promulgated purmant to the Act. Contracton Wuhington. DC 20503. Telephone (202) 3115-written mtement provided to the contracting and consultant.a muat take care to Identify 8810. officer &ivin& the re8.IOIII that 110 lllch what information II not releaaahle. H. Effective date. The effective date of this cert1fication can be made. The rea>>on1 given Opportunity to IO mark nch information Policy Letter ii 30 daya from the date of must be aatlafactory to the contractiz::g officer lhell be afforded to the submitter of the ihwmce OD the first page. u to why such certrlicate cannot be made. Information at my time. ts. &milet review data. Th.ls Polley Letter (b) Qmtenu of the certificats. The (d) Prsaward confilct of iDlemd analysis: will be reviewed three years from the date of certificate IJl1llt contain the following: .p<<:Jal controct prr,vWoru. Agency officlah luuance and every three Jelll'S theraalter to (1) name of the agency and the number of muat. before an award of* contract la made. enaure accuracy and relevancy. Thia review the solicitation In queation; detarmme whether* CODfllct of interelt (2) the name, addreu. telepJione numblt', mdffl with regard to th0111 providing m111t Include a reexamination of the and federal taxpayer ldentfflcation number of . adviaory and uaistance Hl'Yices to the threahold amounts In the light of any changea the apparent su.cceuful ofl'eror, , ll()Vfll'milent. or whether an un.Calr competitive made In the small purchase amount provided (3) a deacrlption of the nature of the advantage exista wt!h retpect to llervicea for In FAR Part 13. servicea rendered by or to be rendered on the provided by

• markating comultant In A.Dov. Burm.an, inatant contract;
• COllllection with a particulsr contract action. Administrator Detdgnate.

(4) If. in tha 12 months preceding the data In perfonnJ.na thil function. they may 1111 (a) of the certification. services were rendered to

• Information from any certi.flcatn or [FR Doc. 8&-29358 Filed 12-15-89: 8:45 am]

the govemment er my other dienf [including 9tatamenb previoualy submitted or nbmlttad M.UNQ C()Oa 1110-01-II

.I Enclosure D AUS 81988 MEMORANDUM FOR THE HEADS OF DEPARTMENTS AND AGENCIES FROM: Allan V. Burman Allan V. Burman Deputy Administrator and

                  . Acting Administrator

SUBJECT:

FAR System Maintenance and Use of Provisional Agency Rules

• In the course of reviewing procurement regulations, the Office of Federal Procurement Policy (OFPP) has encountered several instances where agencies have augmented their supplements to the Federal Acquisition Regulation (FAR) with rules which address issues of government-wide concern and, therefore, should have been proposed for inclusion in the FAR itself.

Among the principal duties of OFPP are "promoting the development of simplified uniform procurement processes" (41 u.s.c. 401(3)) and "eliminating redundant administrative requirements placed on contractor and Federal procurement officials~ (41 u.s.c. 401(7)). The only way to achieve these goals is to ensure that issues of government-wide concern are considered by the FAR Councils and, if appropriate, addressed in the FAR. When individual agencies proceed on their own to promulgate rules that address issues of government-wide concern, the result is a proliferation of rules which contain different language and may be substantively inconsistent. In order to maintain the progress made by the development of the FAR, agencies must pursue FAR coverage whenever an agency regulation addresses issues likely to arise in the acquisitions of other agencies. If expeditious regulatory coverage is necessary, the agency may promulgate an agency supplementary rule designated "provisional" concurrently with its request for action by the FAR Councils. At such time as the FAR Councils adopt a rule, the agency must rescind its provisional rule in favor of the FAR coverage. If FAR coverage is determined to be unnecessary, however, promulgation. of a final supplementary agency rule may be proper, provided that the FAR Councils' deliberations are taken into account. Like other procurement rules, before they are made effective, provisional rules must be published for public comment consistent with the requirements of Section 2 2 of the OFPP

2 Act (41 u.s.c. 418b), and before they are published, they must be submitted to the Office of Management and Budget for review consistent with the requirements of the Paperwork Reduction Act (44 u.s.c. 3501 et seq.) and Executive Order 12291 * \

UNIVERSITY OF CALIFORNIA CD BERKELEY

• DAVIS
• IRVINE
• LOS ANGELES
• RIVERSIDE
• SAN DIEGO
• SAN FRANCISCO i } SANTA BARBARA
• SANTA CRUZ

     - - -- - -- - - -- -- - - -- -- - - - - - -                                                                    '89 DEC -1           P 1 .47 DAVID PIERPONT GARDNER                                                                                              1 OFFICE OF THE PRESIDENT- '

President 300 LAKESIDE DRIVE l' '.Ji..:,* . RONALD W. BRADY OAKLAND, CALIFORNIA 94612-3550 : Senior Vice President-Administration November 20, 1989 The Secretary of the Commission U.S. Nuclear Regulatory Commission Attention: Docketing and service Branch Washington, DC 20555

Dear Secretary:

We are writing to offer comments on the proposed issuance of the NRC Acquisition Regulation (NRCAR) that was published in the Federal Register on October 2, 1989. Because of the paperwork implications of this new NRCAR, copies of these comments are also being submitted to Nicolas Garcia/OMB and Brenda Shelton/NRC in response to the notice of proposed information collection published in the Federal Register on October 4, 1989. our comments are written from the point of view of a major research university. Although only a small proportion of the NRC budget is spent on research and development ($3.9 million in F'Y87), it is precisely those dollars that will lead to the new knowledge and technological innovations needed to make improvements in the nuclear energy sector. Thus it is important that research funds be spend as efficiently as possible. Unfortunately, there are several sections in the proposed NRCAR that would be objectionable if used in contracts supporting research at colleges and universities, because they are inconsistent with the rules that govern work we do under virtually all other federal contracts and grants. In addition, there are other places where the NRCAR deviates from the Federal Acquisition Regulations (FAR) and no clear reason is given for the deviation. These inconsistencies would make administering NRC contracts more burdensome and costly than necessary. We have outlined our concerns below: NRC Authority Th~_ FAR at l.304(b ) requires that "Agency acquisition regulations shali not-- " Research Administration .Of..C 11 \98

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• The Secretary of the Commission November 20, 1989 Page 2 (1) Unnecessarily repeat, paraphrase, or otherwise restate material contained in the FAR * * * ; or (2) Except as required by law or as provided in Subpart 1.4, conflict or be inconsistent with FAR content.

The only section of the proposed NRCAR that is justified explicitly by reference to a public law is Subpart 2009.5, Organizational Conflicts of Interest. There is no indication that NRC has gone through the formal deviation process for the remainder of its proposed FAR supplement, as required by FAR Subpart 1.4. We therefore question NRC's authority to issue any material that supplements the FAR (other than Subpart 2009.5 and those sections that merely identify responsible NRC officials) that .is not explicitly required by statute or approved pursuant to the formal deviation process outlined in FAR Subpart 1.4. Paperwork Burdens The NRC estimates that the "public reporting burden for this collection of information is estimated to average 12 hours per response." We have been unsuccessful after three attempts in obtaining the paperwork clearance packet for the NRCAR, so it is difficult to say how the 12 hour figure was arrived at. Nevertheless, it is clearly wrong with respect to the total potential paperwork burdens imposed by the additional NRC clauses and requirements. The technical reporting requirements alone, with twelve reports due each year, would account for over 30 hours per respondent per year. We request that NRC perform an adequate paperwork burden analysis for each paperwork burden that may be imposed on NRC contractors, broken down by category: security, debarment, organizational conflicts of interest, purchasing, proposal preparation, subcontracting plans, invention reporting, contract financing , government property management, technical reporting, financial reporting, prior approvals, and other areas. Administrative Procedures Act Under the heading "Administrative Procedures Act," NRC declares that the proposed rule is "not significant within the meaning of OFPP Policy Letter No. 83-2," where *significant* is defined as:

The Secretary of the Commission November 20, 1989 Page 3 something which has an effect beyond the internal operating procedures of the agency or has a cost or administrative impact on contractors. The proposed rule, however, would clearly have a cost or administrative impact on contractors who have to comply with the requirements discussed above under "Paperwork Burdens." We request that NRC retract this claim and admit that the NRCAR does fall under the rubric of OFPP Policy Letter 83-2. We are not aware of any other Federal agency claiming such an exemption for their entire Federal Acquisition Regulation Supplement. If agency Supplements are exempt, then what isn't exempt? OFPP Regulatory Reduction Efforts At 24 pages of small, three-column type, this FAR Supplement is one of the longer agency supplements. This is disconcerting at a time when the Office of Federal Procurement Policy is devoting a great deal of effort to reducing the number of pages of procurement regulations. We call NRC's attention to the June 1989 report issued by OFPP titled "Procurement Regulatory Activity Report" in which OFPP efforts to reduce the number of pages in FAR supplements are summarized. We would strongly urge NRC to re-review every paragraph in this proposed Supplement with a view to determining whether there is not sufficient FAR coverage already and so no need for additional NRC coverage. A high degree of cooperation is necessary if we are not all to drown in a sea of paper. Subcontracting Plans FAR Subpart 19.702(a) (1) states that In negotiated acquisitions, each solicitation of offers to perform a contract or contract modification, which individually is expected to exceed $500,000 ($1,000,000 for construction) and that has subcontracting possibilities shall require the apparently successful offeror to submit an acceptable subcontracting plan. (emphasis added) Thus the FAR makes it clear that when considering thresholds for subcontracting plans, each contract or contract modification is to be

The Secretary of the Commission November 20, 1989 Page 4 considered separately as to whether the amount of that contract or modification exceeds the threshold. FAR Subpart 19.705-2 goes on to say that The contracting officer shall take the following action to determine whether a proposed contractual action requires a subcontracting plan: (a) Determine whether the proposed contractual action will meet the dollar threshold in 19.702(a)(l) or (2). If the action includes options or similar provisions, include their value in determining whether the threshold is met. It is clear that the phrase "options or similar provisions" applies to terms of individual contracts or contract modifications; "options or similar provisions" could not encompass contract modifications without contradicting Subpart 19.705-2. Nevertheless, the NRCAR proposes to state at 2019.705-2, Determining the Need for a Subcontracting Plan, that: In determining whether the acquisition meets the dollar threshold established in FAR 19.702 for requiring a subcontracting plan, the e total value of the acquisition must be considered, including the value of all proposed option quantities and funding actions. The only reason for adding this language is to try to include contract modifications within the meaning of "funding actions." This would mean that a contract for $50,000 which may have $50,000 modifications for the following nine years (for a ten year total of

 $500,000) would have to have subcontracting plans for each of those ten years.

The language in 2019.705-2 is inconsistent with the FAR and should be deleted. Invention Reports The FAR at 27.305-3, Follow-up by Government, makes it clear that invention reporting requirements are specified in the patents rights clause used in the particular contract. The Contracting Officer is supposed to make sure that the contractor fulfills its obligations under the applicable patent rights clause (see FAR Subpart 27.305-3(c)). This subpart adds no additional reporting requirements beyond

The Secretary of the Commission November 20, 1989 Page 5 what is in the applicable patent rights clause. Nevertheless, NRCAR Subpart 2027.305-3, Follow-up by Government, is proposed to read: (a) The contracting officer shall *.* require each contractor to report on any patents, copyrights, or royalties attained using any portion of the contract funds. The contractor shall, if no activity is to be reported, certify that in connection with the performance of the contract: (1) No inventions or discoveries were made, (2) No copyrights were secured, produced, or composed, (3) No notices or claims of patent or copyright infringement have been received * * * (4) No royalty payments were directly involved * *

• These additional reporting requirements are inconsistent with the FAR and should be deleted.

Debarment The FAR debarment and suspension rules, we understand, are currently under review and will soon be merged into a government-wide debarment system that covers both contracts and grants. Until that happens, the agencies' contract rules for debarment should be consistent with current FAR coverage. Currently, the FAR has a $25,000 threshold for using the clause at 52.209-5, and that clause contains standard language used by virtually every agency. Unaccountably, the NRCAR would require its own debarment certification in all solicitations, regardless of dollar amount. The certification language would be unique to NRC and inconsistent with the FAR. Rights in Data Pursuant to FAR 27.409(e), the clause at 52.227-14, Rights in Data - General, is to be used with Alternate IV in contracts for basic or applied research performed solely by universities and colleges. This Alternate IV provides that:

The Secretary of the Commission November 20, 1989 Page 6

 * *

• Except as otherwise specifically provided in this contract, the Contractor may establish claim to copyright subsisting in any data first produced in the performance of this contract **

In contrast, the proposed NRCAR at 2052.210-71 would state: All drawings, sketches, designs, design data, specifications, notebooks, technical and scientific data, and all photographs, negatives, reports, findings, recommendations and other data and memoranda of every description relating thereto **** are the property of the Government for any purpose whatsoever without any claim on the part of the contractor and its subcontractors. [the remainder of this clause is somewhat garbled] This language is unacceptable in contracts supporting research at colleges and universities. The NRCAR needs to allow for a comparable Alternate IV to be used. Technical Reporting Although there is no comparable FAR coverage on technical reporting on research contracts, most agencies adhere to the standards in 0MB Circular A-110, Attachment H, Monitoring and Reporting Program Performance, which state in part: 4 **** Except [when events occur that have significant impact on the project], performance reports shall not be required more frequently than quarterly * * *

8. Federal sponsoring agencies shall submit proposed technical and performance reports to 0MB for approval in accordance with the report clearance requirements of 0MB Circular No. A-40 as revised.

Comparing this with the proposed NRCAR clause at 2052.212-71, Technical Progress Report [to be use when contract deliverables include a technical report, pursuant to 2012.104-70(a)], we find the following language: The contractor shall provide a monthly Technical Progress Report to the project officer and the contracting officer. The report is due within 15 calendar days after the end of the report period * *

• Not only are these time intervals unreasonably short, but there is no indication that NRC will clear the format used with 0MB.

The Secretary of the Commission November 20, 1989 Page 7 Financial Reporting Attachment G of 0MB Circular A-110 contains financial reporting requirements for grants as follows: 3.a. Financial Status Report (3) *** the report shall not be required more frequently than quarterly * * * (4) Federal sponsoring agencies shall require recipients to submit the Financial Status Report (original and no more than two copies) no later than 30 days after the end of each specified reporting period *** and 90 days for annual and final reports. Extensions to reporting due dates may be granted upon request of the recipient. Again the NRCAR is much more restrictive in its time limits, where the proposed 2052.212-72, Financial Status Report [to be used when detailed assessment of costs is warranted, pursuant to 2012.104-70(c)], states: The contractor shall provide a monthly Financial Status Report to the project officer and the contracting officer. The report is due within .12 calendar days after the end of the report period * *

• These impossibly strict time limits should be brought into line with requirements that 0MB feels are reasonable.

Travel Pub. L. 100-679, at Section 24, exempts universities from having to comply with Pub. L. 99-234 if they follow their own travel policies in accordance with 0MB Circular A-21. NRCAR 2052.215-75, Travel Reimbursement, makes no provision for exempting universities from having to comply with the Federal Travel Regulations and federal per diem limits. In addition, 0MB Circular A-21, Section J.43.(f), states: Domestic travel costs are allowable when permitted by the sponsored agreement. Expenditures for such travel will not be allowed if they exceed the amount specified by more than 25% or $500,

The Secretary of the Commission November 20, 1989 Page 8 whichever is greater, except with an advanced approval of the sponsoring agency. The proposed clause at NRCAR 2052.215-76, Travel Approvals, is inconsistent with A-21 when it says that: (a) All domestic travel requires the prior approval of the project officer. The c lauses at 2052.215-75 and 2052.215-76 should be clarified so that they will not be inconsistent with Federal statute nor with 0MB Circular A-21. It would be best if these clauses were not used at all in contracts with colleges and universities, since A-21 already contains s u fficient coverage for these kinds of costs. Thank you very much for the opportunity to comment on the proposed NRC Supplement. If you have any questions, or would like to discuss this letter further, please contact Bill Sellers in my office at 415-642-1638. Sincerely, David F. Mears Director, Research Administration Office cc: Nicolas B. Garcia/OMB Brenda Jo. Shelton/NRC Kate Phillips/COGR Bob Coakley Sue Spitz Allan BurmanfOFPP

,. Copy to Secy-Original sent to the *, Office of the Fed&Jal Aeoi111f

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[7590-01] ( f'f FR. 1/0'1~0) NUCLEAR REGULATORY COMMISSION '89 SEP 28 p J :49 48 CFR Chapter 20 -. : ,..,.. -

                                                 ~

(ih,1*

• Acquisition Regulation (NRCAR)

RIN: 3150-ACOl AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is proposing to establish

  - the Nuclear Regulatory Commission Acquisition Regulation (NRCAR) .               The NRCAR is necessary to ensure that the regulations governing the procurement of goods and services within the NRC satisfy the particular needs of the agency. The NRCAR is intended to implement and supplement the government-wide Federal Acquisition Regulation (FAR).

DATES: The comment period expires 60 days after publication. Comments received after this date will be considered if it is practical to do so, but

• assurance of consideration cannot be given except as to comments received on or before this date.

ADDRESSES: Submit written comments to: The Secretary of the Commission; U.S . Nuclear Regulatory Commission; Attention: Docketing and Service Branch; Washington, DC 20555. Copies of comments received may be examined or obtained for a fee at the NRC Public Document Room, 2120 L Street, NW, Lower Level, Washington, DC (telephone (202) 634-3273) . f1,.i/,sieJ f f\ fie 1 f;_ Jer'l I Re~ ,*sf tr 0" /rJ ;;_ 81

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FOR FURTHER INFORMATION CONTACT: Edward L. Halman, Director, Division of Contracts and Property Management, Nuclear Regulatory Commission, Washington, DC 20555. Telephone: (301) 492-4347. SUPPLEMENTARY INFORMATION:

Background

The policies and procedures of the Federal Government regarding the procurement of supplies and services have been developed in a largely independent fashion. Many statutes bearing on Federal contracting have been* directed toward specific agencies. Federal agencies traditionally have developed their own contracting procedures with limited attention to uniformity among agencies. The result was a system of procurement policies that varied from agency to agency, causing confusion within the contracting community. As long ago as 1972, the Commission on Government Procurement \.- A recommended that there be a standard Government-wide procurement regulatory system. The Office of Federal Procurement Policy, created in 1974, has worked with th~ agencies and the public to create a uniform procurement regulation known as the Federal Acquisition Regulation (FAR). The FAR has been promulgated as the uniform, simplified acquisition regulation called for by Executive Order 12352, Federal Procurement Reforms. The FAR, which was issued by the General Services Administration, Department of Defense, and National Aeronautics and Space Administration, superseded the Defense Acquisition Regulation (DAR), the Federal Procurement Regulation (FPR), and the National Aeronautics and Space Administration 2

Procurement Regulation (NASAPR) on April 1, 1984. The FAR was published in the Federal Register on September 19, 1983 (48 CFR 42102) with an effective date or April 1, 1984. The FAR is codified as Chapter 1 of Title 48 of the Code of Federal Regulations. Because of differing statutory authorities among Federal agencies, the FAR authorizes the agencies to issue regulat~ons to implement FAR policies and procedures within the agency and to include additional policies and - procedures, solicitation provisions or contract clauses to satisfy the specific needs of the agency. The regulations being published today

• represent the NRC's necessary implementation and supplementing of the FAR.

Administrative Procedure Act Section 553 of the Administrative Procedure Act (5 U.S.C. 551 et seq)

  ~empts rules relating to public contracts from the prior notice and comment procedure normally required for informal*rulemaking. However, the Office of Federal Procurement Policy (OFPP), Office of Management and Budget, has established procedures to be used by all Federal agencies in the promulgation of procurement regulations. OFPP Policy Letter 83-2 states that an agency must provide an opportunity for public comment before adopting procurement regulation if the regulation is "significant."
  "Significant" is defined generally as something which has an effect beyond the internal pperating procedures of the agency or has a cost or administrative impact on contractors.

3

The NRG has determined that this rule is not significant within the meaning of OFPP Policy Letter No. 83-2. This regulation is issued principally to create one body of guidance incorporating previously cleared procedures, to exercise delegations established by the FAR and to adopt other procedures that will not have a cost or administrative impact on contractors. While not required to do so under the terms of OFPP Policy Letter 83-2, the NRC is issuing the NRC Acquisition Regulation (NRCAR) as a proposed rule. The NRC is accepting comments on this regulation for 60 days after the date of publication. The NRC will review all comments and will consider changes to the rule. Environmental Impact: Categorical Exclusion The NRG has determined that this proposed regulation is the type of action described in the categorical exclusion set forth in 10 CFR 51.22(c)(S). Therefore, neither an environmental impact statement nor an environmental assessment is required for this proposed rule. Paperwork Reduction Act Statement This proposed rule includes information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Accordingly, this rule has been submitted to the Office of Management and Budget for review and approval of the paperwork requirements. 4

Public reporting burden for this collection of information is es~imated to average 12 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Records and Reports Management Branch, Division of Information Support Services, Office of Information Resources Management, U.S. Nuclea~ -* Regulatory Commission, Washington, D.C. 20555; and to the Paperwork Reduction Project (3150 - ), Office of Management and Budget, Washington, DC 20503. Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. The proposed rule would establish the procedures and requirements necessary to implement and supplement the Federal Acquisition Regulation (FAR) which will govern the acquisition of goods and services by the NRC. To the extent that the proposed rule would effect a small entity, it sets out provisions applicable to small business and to small, disadvantaged business concerns. Backfit Analysis 5

The NRC has determined that a backfit analysis is not required for this proposed rule, because this proposed regulation does not involve any provision which would impose backfits as defined in 10 CFR Part 50.109(a)(l). List of Subjects in 48 CFR Chapter 20 Government procurement, Nuclear Regulatory Commission Acquisition Regulations, Reporting and recordkeeping requirements. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to add Chapter 20 to Title 48 of the Code of Federal Regulations.

1. Chapter 20 is added to Title 48 to read as follows:

CHAPTER 20 - NUCLEAR REGULATORY COMMISSION SUBCHAPTER A - GENERAL Part 2001 - Nuclear Regulatory Commission Acquisition Regulation System. 2002 - Definitio~s. 2003 Improper business practices and personal conflicts of interest. 2004 - Administrative matters. 6

SUBGHAPTER B - COMPETITION AND ACQUISITION PLANNING 2005 - Publicizing contract actions. 2009 - Contractor qualifications. 2010 - Specifications, standards, and other purchase descriptions. 2012 - Contract delivery or performance. SUBCHAPTER C - CONTRACTING METIIODS AND CONTRACT TYPES 2013 - Small purchase and other simplified purchase procedures. 2014 - Sealed bidding. 2015 - Contracting by negotiation. 2016 - Types of contracts. SUBCHAPTER D - SOCIOECONOMIC PROGRAMS 2019 - Small business and ijmall disadvantaged business concerns. 2020 - Labor surplus area concerns. 2022 - Application of labor laws of government acquisitions. 2024 - Protection of privacy and freedom of information. 2025' - Foreign acquisition. SUBCHAPTER E - GENERAL CONTRACTING REQUIREMENTS 2027 - Patents, data, and copyrights. 2030 - Cost accounting standards. 2031 - Contract cost principles and procedures. 2032 - Contract financing. 2033 - Protests, disputes, and appeals. SUBCHAPTER F - SPECIAL CATEGORIES OF CONTRACTING 7

2035 - Research and development contracting. 2039 - Acquisition of information resources. SUBCHAPTER G - CONTRACT MANAGEMENT 2042 - Contract administration. 2045 - Government property .

• SUBCHAPTER H - CLAUSES AND FORMS 2052 - Solicitation provisions and contract clauses.

- 2053 - Forms. [Reserved] SUBCHAPTER A - GENERAL Part 2001 - NUCLEAR REGULATORY COMMISSION ACQUISITION REGULATION SYSTEM

• Subpart 2001.1 - Purpose, Authority, Issuance 2001.101 Purpose.

2001. 102 Authority. 2001. 103 Applicability. 2001.104 Issuance. 2001.104-1 Publication and code arrangement. 2001.104-2 Arrangement of the regulations. 2001.104-3 Copies. 8

2001.105 Information collection requirements: 0MB approval. Subpart 2001.3 - Agency Acquisition Regulations 2001.301 Policy. 2001.303 Public participation. Subpart 2001.4 - Deviations from the FAR and the NRCAR 2001.402 Policy. - 2001.403 Individual deviations. 2001.404 Class deviations. Subpart 2001.6 - Contracting Authority and Responsibilities 2001.600-70 Scope of subpart._ 2001.601 General. 2001.602-3 Ratification of unauthorized commitments. 2001.603 Selection, appointment, and termination of appointment. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2001.1 - Purpose, Authority, Issuance

 §2001.101       Purpose.

9

This subpart establishes Chapter 20, the Nuclear Regulatory Commission Acquisition Regulation (NRCAR), and provides for the codification and publication of uniform policies and procedures for acquisitions by the NRG. The NRCAR is not, by itself, a complete document. It must be used in conjunction with the Federal Acquisition Regulation (FAR) (48 CFR Chapter I).

 §2001.102      Authority.

The NRCAR and amendments to it are issued by the Director, Office of Administration, under a delegation from the Executive'Director for - Operations in accordance with the authority of the Atomic Energy Act of 1954, as amended (42. U.S.C. 2011 et. seq.), the Energy Reorganization Act of 1974 (42 U.S.C. 5811 et. seq.), the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 252), as amended, and other applicable law.

 §2001.103      Applicability.

The FAR and NRCAR apply to all NRC acquisitions of supplies and services which obligate appropriated funds, except as exempted by Sections 31 and 161 of the Atomic Energy Act of 1954 as amended, and Section 205 of the Energy Reorganization Act of 1974 as amended. For procurements made from non-appropriated funds, the Director, Division of Contracts and Property Management, shall determine the rules and procedures that apply.

 §2001.104      Issuance.
 §2001.104-1  Publication and code arrangement.

10

(a) The NRCAR and its subsequent changes are: (1) Published in the daily issue of the Federal Register; and (Z) Codified in the Code of Federal Regulations (CFR). (b) The NRCAR is issued as 48 CFR Chapter 20. §2001.104-2 Arrangement of the regulations. (a) General. Chapter 20 is divided into parts, subparts, sections, subsections, paragraphs, and further subdivisions as necessary. (b) Numbering. The numbering system and part, subpart and section titles used in this Chapter 20 conform with those used in the FAR as follows: (1) Where Chapter 20 implements the FAR or supplements a parallel part, subpart, section, subsection, or paragraph of the FAR, that implementation or supplementation is numbered and captioned to the FAR part, subpart, section or subsection being implemented or supplemented, except that the implementation or supplementation is preceded with a 20 or 200 so that there will always be four numbers to the left of the decimal. For example, NRC's implementation of FAR 1.104-1 is shown as

    §2001.104-1 and the NRC's implementation of FAR 24.1 is shown as
    §2024.1.

11

(2) When NRC supplements material contained in the FAR, it is 11 given a unique number containing the numerals 70 11 or higher. The rest of the number parallels the FAR part, subpart, section, subsection, or paragraph it is supplementing. For example, Section 170A of the Atomic Energy Act of 1954 as amended requires a more comprehensive organizational conflicts of interest review for NRC than is contemplated by FAR 9.5. This supplementary material is identified as

      §2009.570.

(3) Where material in the FAR requires no implementation or supplementation, there is no corresponding numbering in the NRCAR. Therefore, there may be gaps in the NRCAR sequence of numbers where the FAR, as written, is applicable to the NRCAR and requires no further implementation. (c) Citation. The NRCAR will be cited in accordance with Federal Register Standards approved for the FAR. Thus, this section when referred to in the NRCAR is cited as §200l.104-2(c). When this section is referred to formally in official documents, such as legal briefs, it should be cited 11 as 48 CFR 2001. 104-2( c)." Any section of the NRCAR may be formally identified by the section number, e.g., "NRCAR 2001. 104-2." In the NRCAR, any reference to the FAR will be indicated by "FAR" followed by the section number, for example FAR 1-104. §2001.104-3 Copies. 12

Copies of the NRCAR in Federal Register and CFR form may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402.

 §2001. 105      Information collection requirements: 0MB approval.

(a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (0MB) for approval as required by the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). (b) The information collection requirements contained in this part appear in 2015. 607, 2019.705-4, 2027.305-3, 2042.803, 2052.204-70, 2052.204-71, 2052.209-71, 2052.209-73, 2052.209-74, 2052.210-71, 2052.212-70, 2052.212-71, 2052.212-72, 2052.214-71, 2052.214-72, 2052.214-74, 2052.215-71, 2052. 215-72, 2052.215-73, 2052.215-74, - 2052.215-77, 2052. 215-81, 2052.216-74, 2052.235-70, 2052.235-72. Subpart 2001.3 Agency Acquisition Regulations

 §2001.301       Policy.

Policy, procedures, and guidance of an internal nature will be issued through internal NRC issuances such as Manual Chapters, directives, or Division of Contracts and Property Management Instructions. 13

§2001.303 Public participation. FAR 1.301 and Section 22 of the Office of Federal Procurement Policy Act, as amended (41 U.S.C. 418b) require rulemaking for substantive-acquisition rules, but allow discretion in the matter for other than significant issues meeting the stated criteria. Accordingly, the NRCAR has been promulgated and may be revised from time to time in accordance with FAR 1.301. This procedure for significant subject matter generally involves issuing a notice of proposed rulemaking, inviting public comment, review and analysis of comments received, and publication of a final rule. The final rule includes a discussion of the public comments received and describes any changes made as a result of the comments. Subpart 2001.4 - Deviations from the FAR and the NRCAR §2001.402 Policy. (a) Requests for authority to deviate from the provisions of the FAR or the NRCAR must be signed by the requesting office and submitted to the Director, Division of Contracts and Property Management, in writing as far in advance as possible. Each request for deviation must contain the following: (1) A statement of the deviation desired, including identification of the specific paragraph number(s) of the FAR or NRCAR from which a deviation is requested; 14

(2) The reason why the deviation is considered necessary or would be in the best interest of the Government; (3) If applicable, the name of the contractor and identification of the contract affected;* (4) A statement as to whether the deviation has been requested previously and, if so, circumstances of the previous request (including the result of that request); (5) A description of the intended effect of the deviation; (6) A statement of the period of time for which the deviation is needed; and (7) Any pertinent background information which will contribute to a full understanding of the desired deviation. §2001.403 Individual deviation~. In individual cases, deviations from either the FAR or the NRCAR will be authorized only when essential to effect a necessary acquisition or where special circumstances make the deviations clearly in the best interest of the Government. Individual deviations must be autho,rized in advance by the Director, Division of Contracts and Property Management. §2001.404 Class deviations.

                                      ,15

Where deviations from the FAR or NRCAR are considered necessary for classes of contracts, requests for authority to deviate must be submitted in writing to the Director, Division of Contracts and Property Management, who will consider the submission jointly with the Chairperson of the Civilian Agency Acquisition Council, as appropriate. Subpart 2001.6 - Contracting Authority and Responsibilities §2001.600-70 Scope of subpart. This subpart deals with the placement of contracting authority and responsibility within the agency, the selection and designation of contracting officers, and the authority of contracting officers. §2001.601 General. (a) Con~racting authority vests in the Chairman. The Chairman has delegated this authority to the Executive Director for Operations (EDO). The EDO has delegated this authority to the Director, Office of Administration (ADM). The Director, ADM, has delegated the authority to the Director, Division of Contracts and Property Management, who, in turn, makes contracting officer appointments within the Headquarters and the Regional Offices. All of the above delegations are formal written delegations containing dollar limitations and conditions. (b) The Director, Division of Contracts and Property Management, establishes contracting policy throughout the agency; monitors the overall 16

effectiveness and efficiency of the agency's contracting office; establishes controls to assure compliance with laws, regulations, and procedures; and delegates contracting officer authority. 12001.602-3 Ratification of unauthorized commitments. (a) The Government is not bound by agreements or contractual commitments made to prospective contractors by persons to whom contracting authority has not been delegated. Any unauthorized commitment may be in violation of the Federal Property and Administrative Services Act, other - Federal laws, the FAR, the NRCAR, and good acquisition practice. Certain requirements of law and regulation necessary for the proper establishment of a contractual obligation may not be met under an unauthorized commitment; for example, the certification of the availability of funds, justification for other than full and open competition, competition of sources, determination of contractor responsibility, certification of current pricing data, price/cost analysis, administrative approvals, and negotiation of appropriate contract clauses. (b) The execution of otherwise proper contracts made by individuals without contracting authority, or by contracting officers in excess of the limits of their delegated authority, may later be ratified. To be effective, the ratification must be in the form of a written procurement document clearly stating that ratification of a previously unauthorized commitment is intended. All ratifications must be approved by the Director, Division of Contracts and Property Management, except that ratifications of procurement actions taken in emergency circumstances and valued at $1,000 or 17

less may be approved by the appropriate Regional Administrator or at a level above the appropriate Headquarters Contracting Officer. For liny such action approved by the Regional Administrator, all other terms of Subpart 2001.6 are applicable, and a copy of all documentation must be submitted within two working days to the Director, Division of Contracts and Property Management. (c) Requests received by contracting officers for ratification of commitments made by personnel lacking contracting authority must be processed as follows: (1) The'requestor shall furnish the contracting officer all records and documents concerning the commitment and a complete written statement of facts, including, but not limited to: (i) A statement as to why the contracting office was not used; (ii) A statement as to why the proposed contractor was selected; (iii) A list of other sources considered; (iv) A description of work to be performed or products to be furnished; (v) The estimated or agreed upon contract price; 18

(vi) A certification of the appropriated funds available; (vii) A statement of whether the contractor has commenced performance; and (viii) A description of how unauthorized commitments in similar circumstances will be avoided in the future. (2) The contracting officer shall review and forward the written statement of facts for a determination of approval to the Director, Division of Contracts and Property Management, with any comments or information which should be considered in evaluating the request for ratification. (3) The NRC legal advisor may be asked for an opinion, advice, or concurrence if there is concern regarding the propriety of the funding source, appropriateness of the expense, or when some other legal issue is involved. §2001.603 Selection, appointment, and termination of appointment. The Director, Division of Contracts and Property Management, is authorized by the Director, Office of Administration, to select and appoint contracting officers and to terminate their appointment as prescribed in FAR 1.603. Delegations of contracting officer authority must include a clear statement of the delegated authority, including responsibilities and limitations. 19

PART 2002 - DEFINITIONS Subpart 2002.1 - Definitions Sec. 2002.100 Definitions AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat, 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. - 3074 (41 U.S.C. 401 et. seq.). Subpart 2002.1 - Definitions

 §2002.100  Definitions.
      "Agency" means the Nuclear Regulatory Commission (NRC).
      "Agency Head" or "Head of the Agency" means the NRC Executive Director for Operations, for the purposes specified in this regulation and the Federal Acquisition Regulation. This delegation does not extend to internal NRC requirements such as clearance levels and Commission papers which specify higher levels of authority.
      "Commission" means the NRC Commission of five members, or a quorum thereof, sitting as a body, as provided by Section 201 of the Energy Reorganization Act of 1974, (42 U.S.C. 5841).

20

       "Competition Advocate" means the individual appointed as such by the Agency Head as required by Public Law 98-369. The Director, Division of Contracts and Property Management, has been appointed the Competition Advocate for the NRC.
       "Day" means calendar day unless otherwise specified. If the last day of the designated period of time is a Saturday, Sunday, or legal holiday

- under Federal law, the period shall include the next business day.

-      "Head of the Contracting Activity (HCA)" means the Director, Division of Contracts and Property Management.
       "Procurement Executive" means the individual appointed as such by the Agency Head pursuant to Executive Order 12352. The Director, Office of Administration, has been appointed the NRC Procurement Executive.

PART 2003 - IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST Subpart 2003.1 - Safeguards 2003.101 Standards of conduct. 2003.101-3 Agency regulations. Subpart 2003.2 - Contractor Gratuities to Government Personnel 21

2003.203 Reporting of suspected violation of the gratuities clause. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96--83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). - Subpart 2003.1 - Safeguards

 §2003.101       Standards of conduct.
 §2003.101-3     Agency regulations.

NRG standards of conduct for its employees are published in 10 CFR Part 0. The standards of conduct include requirements for financial disclosure (§0.735-28). Subpart 2003.2 - Contractor Gratuities to Government Personnel

 §2003.203       Reporting suspected violations of the gratuities clause.

(a) Suspected violations of the "Gratuities" clause, FAR 52.203.3, must be reported orally or in writing directly to the NRC Office of the Inspector General (telephone number (202) 492-7170 or 492-7000). A report must include all facts and circumstances related to the case. Refer to 22

10 CFR 0.735-42, Gifts, Entertainment and Favors, for an explanation regarding what is prohibited and what is permitted. (b) When appropriate, discussions with the contracting officer or a higher procurement official, procurement policy staff, and the procurement legal advisor prior to filing a report are encouraged. PART 2004 - ADMINISTRATIVE MATIERS Sec. - Subpart 2004.4 - Safeguarding Classified Information Within Industry

 §2004.404       Contract clauses.

AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2004.4 - Safeguarding Classified Information Within Industry

 §2004.404       Contract clauses.

The security clauses used in NRC contracts are found at §2052.204. They are: 23

(a) Security, §2052.204-70. This clause will be used in all contracts during performance of which the contractor may have access to, or contact with restricted data, formerly restricted data, and other classified data. (b) Site Access Badge Requirements, §2052.204-71. This clause will be used in all contracts under which the contractor will require access to Government facilities. SUBCHAPTER B - COMPETITION AND ACQUISITION PLANNING Part 2005 - PUBLICIZING CONTRACT ACTIONS Subpart 2005.5 Paid Advertisements 2005.502 Authority. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2005.5 Paid Advertisements §2005.502 Authority. 24

Before placing paid advertisements in newspapers and trade journals to publicize contract actions, written authority must be obtained from the Director, Division of Contracts and Property Management, for Headquarters activities, or the Director, Division of Resource Management and Administration, for regional procurements. Part 2009 - CONTRACTOR QUALIFICATIONS - Subpart 2009.1 - Responsible Prospective Contractors - Sec. 2009. 105- 70 Contract Provisions. Subpart 2009.4 - Debarment, Suspension, and Ineligibility 2009.403 Definitions. - 2009.404 2009.405 Lists of parties excluded from Federal procurement or non-procurement programs. Effect of listing. 2009.405-1 Continuation of current contracts. 2009.405-2 Restrictions on subcontracting. 2009.406 Debarment. 2009.406-3 Procedures. 2009.407 Suspension. 2009.407-3 Procedures. 2009-470 Appeals. 25

Subpart 2009.5 Organizational Conflicts of Interest 2009.500 Scope of subpart., 2009.570 NRC organizational conflicts of interest. 2009.570-1 Scope of policy. 2009.570-2 Definitions. 2009.570-3 Criteria for recognizing contractor organizational conflicts of interest. 2009.570-4 Representation. 2009.570-5 Contract clauses. 2009.570-6 Evaluation, findings, and contract award. 2009.570-7 Conflicts identified after award. 2009.570-8 Subcontracts. 2009.570-9 Waiver. 2009.570-10 Remedies. AUI'HORITY: Sec. 161, 68 Stat. 948, as amended (42. U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. - 3074 (41 U.S.C. 401 et. seq.). Subpart 2009.1 - Responsible Prospective Contractors (a) It is NRC policy that contracts will not normally be placed on a noncompetitive basis with an individual who was employed by the NRC within two years of the date of the request for procurement action or with any firm in which a former NRC employee is a partner, principal officer, majority stockholder, or which is otherwise controlled or predominantly staffed by 26

former NRC employees, unless it is determined by the agency Procurement Executive to be in the best interest of the Government to do so. This restriction also applies to former NRC employees acting as a principal under a ta~k type contract arrangement or as a principal under a contract awarded under the Small Business Administration's B(a) Program. This policy shall also be applied when reviewing subcontracts for the purpose of granting consent under NRC prime contracts. (b) Justifications explaining why it is in the best interest of the Government to contract with an individual or firm described in paragraph (a) - above on a noncompetitive basis may be approved by the Procurement Executive after consulting with the Executive Director for Operations or his designee. This is in addition to the justification and any approvals required by the Federal Acquisition Regulation for use of other than full and open competition. (c) Nothing in this policy statement shall be construed as relieving former employees from obligations prescribed by law, such as 18 U.S.C. 207, Disqualification of Former Officers and Employees.

 §2009.105-70    Contract Provisions The contracting officer shall insert the following provisions in all solicitations:

(a) 2052.209-70, Qualifications of Contract Employees. 27

(b) 2052.209-71, Current/Former Agency Employee Involvement. Subpart 2009.4 - Debarment, Suspension, and Ineligibility §2009.403 Definitions. As used in §2009.4:

    "Debarring official" means the Procurement Executive.
    "Initiating official" means the contracting officer, or the Head of the Contracting Activity (HCA), or the Procurement Executive, or the Inspector General.
    "Suspending official" means the Procurement Executive.

§2009.404 Lists of parties excluded from Federal procurement or non-procurement programs. The cognizant contracting officer shall perform the actions required by FAR 9.404(c)(l)-(3). §2009.405 Effect of listing. Compelling reasons are considered to be present where failure to contract with the debarred or suspended contractor would seriously harm the agency's programs and prevent accomplishment of mission requirements. The 28

Procurement Executive is authorized to make the determinations under FAR 9.405. Requests for these determinations must be submitted through the HCA to the Procurement Execut1ve. Continuation of current contracts. The HCA is authorized to make the determinations under FAR 9.405-1.

 §2009.405-2     Restrictions on subcontracting.

- (a) The contracting officer shall insert the certification found at

 §2052.209-72, Certification Regarding Debarment Status, in all solicitations.

(b) The HCA is authorized to approve subcontracts with debarred or suspended subcontractors under FAR 9.405-2.

 §2009.406 Debarment.
 §2009.406-3     Procedures.

(a) Investigation and referral. When a contr&cting officer becomes aware of possible irregularities or ~y information which may be sufficient cause for debarment, the case must be referred through the HCA to the debarring official immediately. The case must be accompanied by a complete statement of the facts (including a copy of any criminal indictments, if applicable) along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for 29

any other reason further investigation is considered necessary, the matter must first be referred to the HCA who will consult with the Office of the Inspector General to determine if further investigation is required prior to referring to the debarring official. (b) Decisionmaking process. If, after reviewing the recommendations and consulting with the Office of the Inspector General and Office of the General Counsel, as appropriate, the debarring official determines debarment - is justified, the debarring official shall initiate the proposed de~arment in accordance with FAR 9.406-3(c) and notify the HCA of the action taken. - If the contractor fails to submit a timely written response within 30 days after receipt of the notice, the debarring official may notify the contractor in accordance with FAR 9.406-3(d) that the contractor is debarred. (c) Fact-finding proceedings. For actions listed under FAR 9.406-3(b)(2), the contractor shall be given the opportunity to appear at an informal hearing. The hearing should be held at a location and ti.me that is convenient to the parties concerned, and no later than 30 days after the contractor received the notice, if at all possible. The contractor and any specifically named affiliates may be represented by counsel or any duly authorized representative. Witnesses may be called by either party. The proceedings must be conducted expeditiously and in such a manner that each party will have an opportunity to present all information considered pertinent to the proposed debarment.

 §2009.407 Suspension.

30

 §2009.407-3    Procedures.

(a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for suspension, the case must be referred through the HCA to the suspending official immediately. The case must be accompanied by a complete statement of the facts along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal - offenses, or for any other reason further investigation is considered necessary, the matter must first be referred to the HCA who will consult with the Office of the Inspector General to determine if further investigation is required prior to referring the matter to the suspending official. (b) Decisionmaking process. If, after reviewing the recommendations and consulting with the Office of the Inspector General and Office of the - General Counsel, as appropriate, the suspending official determines suspension is justified, the suspending official shall initiate the proposed suspension in accordance with FAR 9.407-3(b)(2). The contractor shall be given the opportunity to appear at an informal hearing, similar in nature to the hearing for debarments as discussed in FAR 9.406-3(b)(2). If the contractor fails to submit a timely written response within 30 days after receipt of the notice, the suspending official may notify the contractor in accordance with 9.407-3(d) that the contractor is suspended.

 §2009.470 Appeals.

31

A debarred or suspended contractor may appeal the debarring/suspending official's decision by mailing or otherwise furnishing a written notice within 90 days from the date of the decision to the Executive Director for Operations~ A copy of the notice of appeal must be furnished to the debarring/suspending official from whose decision the appeal is taken. Subpart 2009.5 Organizational Conflicts of Interest - §2009.500 Scope of subpart. In accordance with Sec. 8, Pub. L. 95-601, adding Sec. 170A to Pub. L. 83-703, 68 Stat. 919, as amended (42 U.S.C. Ch. 14), NRC acquisitions are processed in accordance with §2009.570, which supplements FAR 9.5 with respect to organizational conflicts of interest. Where non-conflicting guidance appears in FAR 9.5, that guidance shall be followed.

 §2009.570   NRC organizational conflicts of interest.
 §2009.570-1   Scope of policy.

(a) It is the policy of the U.S. Nuclear Regulatory Commission (NRC) to avoid, eliminate or neutralize contractor organizational conflicts of interest. The NRC achieves this objective by requiring all prospective contractors to submit information describing relationships, if any, with organizations or persons (including those regulated by the NRC) which may give rise to actual o~ potential conflicts of interest in the event of contract award. 32

(b) Contractor conflict of interest determinations cannot be made automatically or routinely; the application of sound judgment on virtually a case-by-case basis is necessary if the policy is to be applied to satisfy the overall public interest. It is not possible to prescribe in advance a specific method or set of criteria which would serve to identify and resolve all of the contractor conflict of interest situations which might arise. However, examples are provided in these regulations to guide application of this policy guidance. The ultimate test is as follows: Might the - contractor, if awarded the contract, be placed in a position where its judgment may be biased, or where it may have an unfair competitive advantage? (c) The conflict of interest rule contained in this subpart applies to contractors and offerers only. Individuals or firms who have other relationships with the NRC (e.g., parties to a licensing proceeding) are not covered by this regulation. This rule does not apply to the acquisition of consulting services through the personnel appointment process, NRC agreements with other government agencies, international organizations, or state, local, or foreign governments. Separate procedures for avoiding conflicts of interest will be employed in these agreements, as appropriate.

 §2009.570-2     Definitions.

As used in §2009.570:

       "Affiliates" means business concerns which are affiliates of each other when either directly or indirectly one concern or individual controls or has 33

the power to control another, or when a third party controls or has the power to control both. II Contract II means any contractua 1 agreement or ot h er arrangement wit h the NRC except as provided in §2009.570-l(b).

        "Contractor" means any person, firm, unincorporated association, joint venture, co-sponsor, partnership, corporation, affiliates thereof, or thelr

• • - successors in interest, including their chief executives, directors, key personnel (identified in the contract), proposed consultants or

- subcontractors, which are a party to a contract with the NRC.

        "Evaluation activities" means any effort involving the appraisal of a technology, process, product, or policy.
        "Offeror" or "prospective contractor" means any person, firm,
-  unincorporated association, joint venture, co-sponsor, partnership, corporation, or their affiliates or successors in interest including their

- chief executives, directors, key personnel, proposed consultants or subcontractors, submitting a bid or proposal, solicited or unsolicited, to the NRC to obtain a contract.

        "Organizational conflict of interest" means that a relationship exists whereby a contractor or prospective contractor has present or planned interests related to the work to be performed under an NRC contract which:

34

(1) May diminish its capacity to give impartial, technically sound, objective assistance and advice or may otherwise result in a biased work product;-or (2) May result in its being given an unfair competitive advantage.

       "Potential conflict of interest" means that a factual situation exists that suggests (indicates) that an actual conflict of interest may arise f~om

- award of a proposed contract. The term "potential conflict of interest" is used to signify those situations which merit investigation prior to contract - award in order to ascertain whether award would give rise to an actual conflict or which must be reported to the contracting officer for investigation if they arise during contract performance.

      "Research" means any scientific or technical work involving theoretical analysis, exploration, or experimentation.
      "Subcontractor" means any subcontractor of any tier which performs work under a contract with the NRC except subcontracts for supplies and subcontracts in the amount of $25,000 or less.
      "Technical consulting and management support services" means internal assistance to a component of the NRC in the formulation or administration of its programs, projects, or policies which normally require that the contractor be given access to information which has not been made available to the public, or to prop~ietary information. These services typically 35

include assistance in the preparation of program plans, preliminary designs, specifications, or statements of work. §2009.570-3 Criteria for recognizing contractor organizational conflicts of interest. (a) General. (1) Two questions will be asked in determining whether actual or potential organizational conflicts of interest exist: (i) Are there conflicting roles which might bias an offeror's or contractor's judgment in relation to its work for the NRC? (ii) May the offeror or contractor be given an unfair competitive advantage based on the performance of the contract? (2) The ultimate determination by the NRC as to whether organizational conflicts of interest exist will be made in light of common sense and good business judgment based upon the relevant facts. While it is difficult to identify and to prescribe in advance a specific method for avoiding all of the various situations or relationships which might involve potential organizational conflicts of interest, NRC personnel will pay particular attention to proposed contractual requirements which call for the rendering of advice, consultation or evaluation activities, or similar activities that lay 36

direct groundwork for the NRC's decisions on regulatory activities, future procurements, and research programs. (b) Situations or relationships. The following situations or relationships may give rise to organizational conflicts of interest: (1) The offerer or contractor shall disclose information concerning relationships which may give rise to organizational conflicts of interest under the following circumstances: (i) Where the offerer or contractor provides advice and recommendation to the NRC in a technical area in which it is also providing consulting assistance in the same area to any organization regulated by the NRC. (ii) Where the offerer or contractor provides advice to the NRC on the same or similar matter in which it is also providing assistance to any organization regulated by the NRC. (iii) Where the offeror or contractor evaluates its own products or services, or the products or services of another entity where the offerer or contractor has been substantially involved in their development or marketing. (iv) Where the award of a contract would otherwise result in placing the offerer or contractor in a conflicting role in which its judgment may be biased in relation to its work for the NRC or may 37

otherwise result in an unfair competitive advantage for the offeror or contractor. (2) The contracting officer may request specific information from an offeror or contractor or may require special contract clauses such as provided in §2009.570-S(b) in the following circumstances: (i) Where the offeror or contractor prepares specifications which are to be used in competitive procurements of products or services covered by the specifications. (ii) Where the offeror or contractor prepares plans for specific approaches or methodologies that are to be incorporated into competitive procurements using the approaches or methodologies. (iii) Where the offeror or contractor is granted access to information not available to the public concerning NRC plans, policies, or programs which could form the basis for a late~ procurement action. (iv) Where the offerer or contractor is granted access to proprietary information of its competitors. (v) Where the award of a contract might otherwise result in placing the offeror or contractor in a conflicting role in which its judgment may be biased in relation to its work for the NRC or may otherwise result in an unfair competitive advantage for the offeror or contractor. 38

(c) Policy application guidance. The following examples are illustrative only and are not intended to identify and resolve all contractor organizational conflict of interest situations. (1) ( i) Example. The ABC Corp., in response to a Request For Proposal (RFP), proposes to undertake certain analyses of a reactor component as called for in the RFP. The ABC Corp. is one of several companies considered to be technically well qualified. In response to the inquiry in the RFP, the ABC Corp. advises that it is currently performing similar analyses for the reactor manufacturer. (ii) Guidance. An NRC contract for that particular work normally would not be awarded to the ABC Corp. because it would be placed in a position in which its judgment could be biased in relationship to its work for the NRC. Because there are other well-qualified companies available, there would be no reason for considering a waiver of the policy. (2)(i) Example. The ABC Corp., in response to an RFP, proposes to perform certain analyses of a reactor component which is unique to one type of advanced reactor. As is the case with other technically qualified companies responding to the RFP, the ABC Corp. is performing various projects for several different utility clients. None of the ABC Corp. projects have any relationship to the work called for in the RFP. Based on the NRC evaluation, the ABC Corp.' 39

is considered to be the best qualified company to perform the work outlined in the RFP. (ii) Guidance. An NRC contract normally could be awarded to the ABC Corp. because no conflict of interest exists which could motivate bias with respect to the work. An appropriate clause would be included in the contract to preclude the ABC Corp. from subsequently contracting for work during the performance of the NRC contract with the private sector which could create a conflict. For example, ABC Corp. would be precluded from the performance of similar work for the company developing the advanced reactor mentioned in the example. (3)(i) Example. As a result of operating problems in a certain type of commercial nuclear facility, it is imperative that the NRC secure specific data on various operational aspects of that type of plant so as to assure adequate safety protection of the public. Only one manufacturer has extensive experience with that type of plant. Consequently, that company is the only one with whom the NRC can contract which can develop and conduct the testing programs required to obtain the data within reasonable time. That company has a definite interest in any NRC decisions that might result from the data produced because those decisions affect the reactor's design and thus the company's costs. 40

(ii) Guidance. This situation would place the manufacturer in a role in which its judgment could be biased in relationship to its work for the NRC. Because the nature of the work required is vitally important in terms of the NRC's responsibilities and no reasonable alternative exists, a waiver of the policy in accordance with §2009.570-9 may be warranted. Any waiver must be fully documented in accordance with the waiver provisions of this policy with particular attention to the establishment of protective mechanisms to guard against bias. (4)(i) Example. The ABC Co. submits a proposal for a new system for evaluating a specific reactor component's performance for the purpose of developing standards that are important to the NRC program. The ABC Co. has advised the NRC that it intends to sell the new system to industry once its practicability has been demonstrated. Other companies in this business are using older systems for evaluation of the specific reactor component. (ii) Guidance. A contract could be awarded to the ABC Co. provided that the contract s.tipulates that no information produced under the contract will be used in the contractor's private activities unless this information has been reported to the NRC. Information which is reported to the NRC by contractors will normally be disseminated by the NRC to others so as to preclude an unfair competitive 41

advantage that might otherwise accrue. When the NRC furnishes information to the contractor for the performance of contractor work, the information may not be used in the contractor's private activities unless the information is generally available to others. Further, the contract will stipulate that the contractor will inform the NRC contracting officer of all situations in which the information developed under the contract is proposed to be used. (S)(i) Example. The ABC Corp., in response to a RFP, proposes to assemble a map showing certain seismological features of the Appalachian fold belt. In accordance with the representation in the RFP and '§2009.570-3(b)(1)(i), ABC Corp. informs the NRC that it is presently doing seismological studies for several utilities in the Eastern United States but none of the sites are within the geographic area contemplated _by the NRC study. (ii) Guidance. The contracting officer would normally conclude that award of a contract would not place ABC Corp. in a conflicting role where its judgment might be biased. The work for others clause of §2052.209-74(c) would preclude ABC Corp. from accepting work during the term of the NRC contract which could create a conflict of interest. (d) Other considerations. 42

(1) The fact that the NRC can identify and later avoid, eliminate, or neutralize any potential organizational conflicts arising from the performance of a contract is not relevant to a determination of the existence of conflicts prior to the award of a contract. (2) It is not relevant that the contractor has the professional reputation of being able to resist temptations which arise from organizational conflicts of interest, or that a follow-on procurement is not involved, or that a contract is awarded on a competitive or a sole source basis.

 §2009.570-4   Representation.

(a) The following procedures are designed to assist the NRC contracting officer in determining whether situations or relationships exist which may constitute organizational conflicts of interest with respect to a - particular offeror or contractor. (b) The organizational conflict of interest representation provision at §2052.209-73 must be included in all solicitations and unsolicited proposals for: (1) Evaluation services or activities; (2) Technical consulting and management support services; 43

(3) Research; and (4) Other contractual situations where special organizational conflicts of interest provisions are noted in the solicitation and would be included in the resulting contract'. This representation requirement also applies to all modifications for additional effort under the contract except those issued under the "Changes" clause. Where, however, a statement of the type required by the organizational yonflicts of interest representation provisions has previously been submitted with regard to the contract being modified, only an updating of the statement is required. (c) The offerer may, because of actual or potential organizational conflicts of interest, propose to exclude specific kinds of work contained in an RFP unless the RFP specifically prohibits the exclusion. Any such proposed exclusion by an offeror will be considered by the NRC in the evaluation of proposals. If the NRC considers the proposed excluded work to be an essential or integral part of the required work and its exclusion would be to the detriment of the competitive posture of the other offerers, the NRC shall reject the proposal as unacceptable. (d) The offerer's failure to execute the representation required by paragraph (b) of this section with respect to an invitation for bids is considered to be a minor informality. The offeror will be permitted to correct the omission. §2009.570-5 Contract clauses. 44

(a) General contract clause. All contracts and small purchases of the types set forth in §2009.570-4(b) must include the clause entitled, "Contractor Organizational Conflicts of Interest," set forth in §2052.209-74. (b) Addition to general clause for use when award of a follow-on contract would constitute an organization conflict of interest. The contracting officer shall add the additional paragraphs found at

  §2052.209-75 to the clause found at §2052.209-74 when it is determined that award of a follow-on contract would constitute an organizational conflict of interest.

(c) Addition to general clause for contractors having access to NRG-regulated activities. In contracts for on-site work where the contractor may have access to a utility site or other facility subject to NRC's regulatory authority or in any cont~act for technical support of NRC's regulatory activities, the contracting officer shall change paragraph (c), 4' "Work for others," to (c)(l) and add new paragraphs (c)(2) and (c)(3) found at §2052.209-76. (d) Additions to general clause for task order contracts. In all contracts for task order contracts, add a new sentence to paragraph (b),

  "Scope," and a new paragraph (d)(3) to paragraph (d), "Disclosure after award," as found at §2052.209.77.

(e) Other special contract clauses. If it is determined from the nature of the proposed contract that an organizational conflict of interest exists, the contracting officer may determine that the conflict can be 45

avoided, or, after obtaining a waiver in accordance with §2009.570-9, neut~alized through the use of an appropriate special contract clause. lf appropriate, the offeror may negotiate the terms and conditions of these clauses, including the extent and time period of any restriction. These clauses include but are not limited to: (1) Hardware exclusion clauses which prohibit the acceptance of production contracts following a related non-production contract previously performed by the contractor; (2) Software exclusion clauses; (3) Clauses which require the contractor (and certain of its key personnel) to avoid certain organizational conflicts of interest; and (4) Clauses which provide for protection of confidential data and guard against its unauthorized use. §2009.570-6 Evaluation, findings, and contract award. The contracting officer shall evaluate all relevant facts submitted by an offeror under the representation requirements of §2009.570-4(b) and other relevant information. After evaluating this information against the criteria of §2009.570-3, the contracting officer shall make a finding of whether organizational conflicts of interest exist with respect to a 46

particular offerer. If it has been determined that real or potential conflicts of interest exist, then the contracting officer shall: (a) Disqualify the offerer from award; (b) Avoid or eliminate such conflicts by appropriate measures, or (c) Award the contract under the waiver provision of §2009.570-9. §2009.570-7 Conflicts identified after award. If potential organizational conflicts of interest are identified after award with respect to a particular contractor, and the contracting officer determines that conflicts do, in fact, exist and that it would not be in the best interest of the government to terminate the contract as provided in the clauses required by §2009.570-5, the contracting officer shall take every reasonable action to avoid, eliminate or, after obtaining a waiver in accordance with §2009.570-9, neutralize the effects of the ident.ified conflict. §2009.570-8 Subcontracts. The contracting officer shall require offerers and contractors to submit a representation statement from subcontractors and consultants in accordance with §2009.570-4(b). The contracting officer shall require the contractor to include contract clauses in accordance with §2009.570-5 in 47

consultant agreements or subcontracts involving performance of work under a prime contract covered by this section.

 §2009.570-9  Waiver.

(a) Determination with respect to the need to seek a waiver for specific contract awards is made by the contracting officer with the advice and concurrence of the program office director and legal counsel. Upon the - recommendation of the contracting officer, and after consultation with legal counsel, the Executive Director for Operations may waive the policy in - specific cases if he determines that it is in the best interest of the United States to do so. (b) Waiver action is strictly limited to those situations in which: (1) The work to be performed under contract is vital to the NRC program; (2) The work cannot be satisfactorily performed except by a contractor whose interests give rise to a question of conflict of interest; and (3) Contractual and/or technical review and supervision methods can be employed by the NRC to neutralize the conflict. 48

(c) For any waivers, the justification and approval documents must be placed in the NRC Public Document Room, 2120 L Street, NW., Lower Level, Washington, DC.

 §2009.570-10   Remedies.

In addition to other remedies permitted by law or contract for a breach of the restrictions in this subpart or for any intentional misrepresentation or intentional nondisclosure of any relevant interest required to be provided for this section, the NRC may debar the contractor from subsequent - NRC contracts. PART 2010 - SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE DESCRIPTIONS Sec .

• 2010.004 - Brand name products or equal.

2010.011 - Solicitation provisions and contract clauses. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). 2010.004 - Brand name products or equal. 49

(a) Acquisitions will generally not be based on a specifically identified product or feature(s) thereof. However, under unusual circumstances this type of approach may be used as described below. (b) Brand name or equal purchase descriptions must cite all brand name products known to be acceptable and of current manufacture. If the use of a brand name or equal purchase description results in the purchase of an acceptable brand name product which was not listed as an "equal" product, a.

• reference to that brand name product should be included in the purchase description for later acquisitions. If a. brand name product is no longer

- applicable, the reference to that brand name must be deleted from any , subsequent purchase description. (1) It is imperative that brand name or equal purchase descriptions specify ea.ch physical or functional characteristic of the product that is essential to the intended use. Failure to do so may result in a. defective solicitation and the necessity to resolicit the requirements. Ca.re must be ta.ken to a.void specifying characteristics - that cannot be shown to materially affect the intended end use and which unnecessarily restrict competition. (2) When describing essential characteristics, permissible tolerances should be indicated. A characteristic (e.g., a. specific dimension) of a. brand name product may not be specified unless it is essential to the Government's need. The contracting officer shall be able to justify the requirement. 50

(c) The clause found at §2052.210-70 must be inserted in all solicitations citing a brand name or equal, except when samples are requested. (d) An offer may not be rejected for failure of the offered product to equal a characteristic of a brand name product if it was not specified in the brand name or equal description. However, if it is clearly established that the unspecified characteristic is essential to the intended end use, the soliciatation is defective and no award may be made. In such cases, the contracting officer should resolicit the requirements, using a purchase - description that sets forth the essential characteristics. (e) In small purchases within the open market limitations, brand name policies and procedures are applicable to the extent practicable.

 §2010.011 - Solicitation provisions and contract clauses.

The contracting officer shall insert the clause at §2052.210-71, Drawings, Designs, Specifications, and Data in all contracts in which drawings, designs, specifications, or other data will be developed. PART 2012 - CONTRACT DELIVERY OR PERFORMANCE Subpart 2012.104 - Contract clauses 51

2012.104-70 NRC clauses. AUTIIORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5-841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2012.104 - Contract clauses §2012.104-70 NRC clauses. (a) The contracting officer shall insert the clause at §2052.212-70, Preparation of Technical Reports, when deliverables include a technical report. (b) The contracting officer shall insert the clause at §2052.212-71, Technical Progress Report, in all solicitations and contracts except (1) firm fixed price, and (2) indefinite-delivery contracts to be awarded on a time and materials or labor-hour basis, or which provide for issuance of delivery orders for specific products/services (line items). (c) The contracting officer shall insert the clause at §2052.212-72, Financial Status Report, in all solicitations and contracts when detailed assessment of costs is warranted. 52

(d) The contracting officer may alter these clauses prior to issuance of the solicitation or during competition by solicitation amendment. Insignificant changes only may also be made by the contracting officer on a case-by-case basis during negotiations, without solicitation amendment. SUBCHAPTER C - CONTRACTING METHODS AND CONTRACT TYPES PART 2013 - SMALL PURCHASE AND OTHER SIMPLIFIED PURCHASE PROCEDURES Subpart 2013.5 Purchase Orders 2013.505-2 Agency order forms in lieu of Optional Forms 347 and 348. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. e* 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2013.5 Purchase Orders

  §2013.505-2  Agency order forms in lieu of Optional Forms 347 and 348.

NRG Form 103, Purchase Order, is prescribed for use by the NRC in lieu of Optional Forms 347 and 348. 53

PART 2014 - SEALED BIDDING Subpart 2014.2 Solicitation of Bids 2014.201 Preparation of invitation for bids. 2014.201-670 Solicitation provisions. Subpart 2014.4 Opening of Bids and Award of Contract 2014.406 Mistakes in bids. 2014.406-3 Other mistakes disclosed before award. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2014.2 Solicitation of Bids §2014.201 Preparation of invitation for bids. §2014.201-670 Solicitation provisions. (a) The contracting officer shall insert the provision at §2052.214-70, Prebid Conference, in Invitations for Bids (IFB) where there will be a prebid conference. This provision may be altered by the contracting officer to fit circumstances. 54

(b) The cognizant contracting officer shall insert in all invitations for bids the provisions at: (1) Section 2052.214-71, Bidder Qualifications and Past Experiences. (2) Section 2052.214-72, Bid Evaluation (paragraph g. is optional). (3) Section 2052.215-73, Timely Receipt of Bids. (4) Section 2052.214-74, Disposition of Bids. Subpart 2014.4 Opening of Bids and Award of Contract §2014.406 Mistakes in bids. §2014.406-3 Other mistakes disclosed before award. (a) The Director, Division of Contracts and Property Management, is delegated the authority to make the determinations concerning mistakes in bids, including those with obvious clerical errors, discovered prior to award. These determinations will be concurred in by legal counsel prior to notification of the bidder. 55

(b) The cognizant contracting officer is delegated the authority to make determinations concerning mistakes disclosed after award in accordance with FAR 14.406-4. Part 2015 - CONTRACTING BY NEGOTIATION Subpart 2015.4 - Solicitation and Receipt of Proposals and Quotations Sec. 2015.407-70 Solicitation provisions and contract clauses. Subpart 2015.5 - Unsolicited Proposals 2015.506 Agency procedures. 2015.506-1 Receipt and initial review. 2015.506-2 Evaluation. 2015.507 Contracting methods. Subpart 2015.6 - Source Selection 2015.602 Applicability. 2015.604 Responsibilities. 2015.605 Evaluation factors. 2015.607 Disclosure of mistakes before award. 2015.608 Proposal evaluation. 2015. 610 Written or oral discussions. 2015.611 Best and final offers. 2015.612 Source Evaluation Panel (SEP) structure. 2015.670 Contract provisions. 56

AUTIIORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2015.4 - Solicitation and Receipt of Proposals and Quotations §2015.407-70 Solicitation provisions and contract clauses. (a) The contracting officer shall insert in Requests for Proposals (RFPs) the provisions at: (1) Section 2052.215-73, Data Universal Numbering System (DUNS) Number; (2) Section 2052.215-74, Key Personnel; (3) Section 2052.215-77, Project Officer Authority (for solicitations for cost reimbursement, cost plus fixed fee, cost plus award fee, cost sharing labor hour o~ time and materials, including task order contracts); (4) Section 2052.215-78, Project Officer Authority - Alternate 1 (for solicitations for issuance of delivery orders for specific products/services); 57

(5) Section 2052.215-78, Project Officer Authority - Alternate 1 with paragraph (b)(l) deleted and the remainder of the clause renumbered (for solicitations for firm fixed price contracts); (6) Section 2052.215-79, Timely Receipt of Proposals; (7) Section 2052.215-80, Award Notification and Commitment of Public Funds; and (8) Section 2052.215-81, Disposition of Proposals. (b) The contracting officer shall insert in all solicitations for negotiated procurements for cost type contracts that do not provide for task orders or delivery orders, the provision at §2052.215-71, Proposal Presentation and Format except that (1) For all solicitations for negotiated task order contracts, paragraphs (d)(4)(xi) and (Xii) shall be deleted (and the remainder renumbered), and the paragraph found at §2052.215-72 shall be substituted for paragraph (d)(2). (2) For all negotiated procurements for a fixed price, labor hour, or time and materials contract, paragraph (d)(2) shall be deleted from the provision §2052.215-71. 58

The provision must be tailored to assure that all sections, but in particular paragraph (e), Technical and Management Proposal, reflect the evaluation criteria. (c) The contracting officer shall insert the provision at §2052.215-70, Preproposal Conference, in RFPs where there will be a preproposal conference. This provision may be altered to fit circumstances. (d) The contracting officer shall insert the clauses at §2052.215-75, Travel Reimbursement, and §2052-215-76, Travel Approvals, in RFPs where there will be travel. Subpart 2015.5 - Unsolicited Proposals §2015.506 Agency procedures. (a) The Division of Contracts and Property Management, Operations Support Staff, is the point of contact for the receipt, acknowledgement, and handling of unsolicited proposals. (b) Unsolicited proposals in original and two copies, and requests for additional information regarding their preparation must be submitted to: Chief, Operations Support Staff Division of_Contracts and Property Management Mail Stop P-1118 U.S. Nuclear Regulatory Commission 59

Washington, DC 20555 This will ensure that the proposal is logged into the unsolicited proposal tracking system. §2015.506-1 Receipt and initial review. (a) The NRC, Division of Contracts and Property Management, Operations Support Staff (ass) shall acknowledge receipt of an unsolicited proposal, complete a preliminary review, assign a docket number, and send copies of the unsolicited proposal to the appropriate program office Director(s) for evaluation. (b) ass shall be responsible for controlling reproduction and distribution of proposal material by notifying evaluators of their responsibilities and tracking the number of proposals received and forwarded to evaluators. (c) An acknowledgment letter will be sent to the proposer by the ass, providing an estimated date for a funding decision or identifying the reasons for non-acceptance of the proposal for review in accordance with FAR 15.503 and 15.505. §2015.506-2 Evaluation. 60

Directors of NRG offices shall conduct comprehensive technical evaluations of proposals submitted to them by the OSS, in accordance with the criteria discussed in FAR 15.506-2(a). §2015.507 Contracting methods. If a noncompetitive contract is recommended, the Director of the recommending NRG office shall submit to the Division of Contracts and Property Management a written evaluation, Request for Procurement Action (~A) and Justification for Other Than Full and Open Competition in accordance with FAR 15.507(b)(5). Subpart 2015.6 - Source Selection §2015.602 Applicability. This subpart does not apply to contracts awarded to the Small Business Administration under Section 8(a) of the Small Business Act. §2015.604 Responsibilities. (a) All persons participating in the evaluation process may not discuss or reveal .information concerning the evaluations except to an individual participating in the same evaluation proceeding, and then only to the extent that the information is required in connection with the proceeding. Divulging information during evaluation, selection, and negotiation phases of the acquisition to offerors or to other persons not 61

having a need to know could jeopardize the resultant award. Only the contracting officer (or authorized representative within the Division of Contracts and Property Management) may release source selection information to others during the selection process. The contracting officer (or authorized representative) shall instruct all participants in the evaluations to observe these restrictions to ensure that they understand that unauthorized disclosure of information contained in or concerning proposals could compromise the acquisition process and is prohibited. A I written acknowledgment of understanding must be obtained from each participant before he/she receives any proposal or participates in any discussion of proposals. (b) All persons participating in the evaluation process shall declare any financial or other relationships which may create conflict of interest problems with their evaluation duties. A form for this purpose must be signed prior to receipt of any proposals or participation in discussion of proposals. (c) Only the contracting officer (or authorized representative within the Division of Contracts and Property Management) may conduct discussions with offerers relative to any aspect of the acquisition. The contracting officer may include other personnel in discussions, as necessary. §2015.605 Evaluation factors. The evaluation criteria included in the solicitation serve as the standard against which all proposals are evaluated, and are the basis for 62

the development of proposal prepartion instructions, in accordance with

 §2015.407-70(b). Indication in the solicitation of the relative importance of evaluation factors and subfactors is accooplished by the assignment of a numerical weight to each. For those factors that will not be numerically weighted, only their relative importance will be stated in the solicitation. Examples of factors which may not be numerically weighted are conflict of interest, estimated cost, and business evaluations, and "go/no go" evaluation factors.
 §2015.607 Disclosure of mistakes before award.

(a) The contracting officer shall require that the offerer's clarification(s) provided in accordance with FAR 15.607 be in writing. (b) A correction of a mistake in a proposal may be made only after a written determination to permit it has been made by the contracting officer .

• 2015.608 Proposal evaluation.

(a) A Source Evaluation Panel (SEP) shall evaluate proposals in accordance with the solicitation technical evaluation criteria, cost, and other terms of the solicitation. The SEP prepares the Competitive Range Recommendation Report for the review and approval of the Designating Offical. The contracting officer uses this technical evaluation in determining the competitive range. 63

(b) The Designating Official (appointed by the requesting office) is responsible for appointing the SEP and is responsible for conducting an independent review and evaluation of the SEP's two primary products after proposal evaluation: the Competitive Range Recommendation Report and the Final Evaluation Recommendation Report. Any cancellation of solicitations and subsequent rejection of all proposals must be approved by the Head of the Contracting Activity. 2015.610 Written or oral discussions. - The contracting officer shall point out to each offeror within the competitive range any ambiguities or uncertainties in its proposal. The discussions are intended to assist the SEP in fully understanding the proposals and their strengths and weaknesses. Discussions also assure that the meanings and points of emphasis of solicitation provisions have been adequately conveyed to the offerers so that all offerers are competing equally on the basis intended by the Government.

 §2015.611 Best and final offers.

The SEP evaluates the best and final offers. Proposals will be rescored and reranked by the SEP, as appropriate, and a Final Evaluation Recommendation Report will be prepared and forwarded to the Designating Official for review and approval prior to submission to the contracting officer for final approval. The report will include a summary of the technical analysis of costs as a part of the analysis of proposals. The 64

SEP's individual evaluation worksheets and summary score sheet must accompany the Final Evaluation Recommendation Report and will become part of the official file. §2015.612 Source Evaluation Panel (SEP) structure. (a) For all proposed contracts with total estimated values in excess of $25,000 and expected to result from competitive technical and price/cost negotiations, the cooperative review efforts of technical, contracting, and other administrative personnel are formalized through the establishment of a Source Evaluation Panel (SEP). (b) The SEP includes (1) at least three technical members (one of whom serves as the chairperson) who participate in the scoring of proposals using weighte~ evaluation criteria and evaluating proposals using other unweighted factors, and (2) a contract negotiator who ensures that procurement rules and regulations ~re followed, ensures that the integrity of the process is maintained, and negotiates the contract on behalf of the NRG. Except in unusual cases, the SEP should not exceed five members including the Chairperson. The technical members are usually employees of the NRG program office initiating the request or other NRC employees with expertise in areas related to the solicitation Statement of Work. Appointment of a technical member from other than the office initiating the request is encouraged. Employees of other agencies with expertise in a specific area may also serve as SEP technical members notwithstanding the fact that they are not employees of the NRG. Evaluators need not be Federal employees, but the potential for conflict of interest must be carefully considered in these 65

cases and the solicitation should notify offerors of the NRC's intent to use non-Federal evaluators. For proposed procurements with a total estimated cost of less than $500,000 over a performance period of three years or less, a single technical member may be appointed to evaluate proposals with the contracting officer's approval. Designation of SEP members is accomplished by memorandum initiated by the director of the program office or the director's designee. This official is referred to as the Designating Official (DO). (c) The SEP chairperson may obtain the services of advisors (e.g., legal, financial, etc.) to assist the SEP. Advisors who serve on technical evaluation committees are appointed in writing by the DO. Advisors are not SEP members, and therefore do not score proposals. Advisors need not be Federal employees, but the potential for conflict of interest must.be carefully considered in these cases, and the solicitation should notify offerers of the NRC's intent to use non-Federal advisors. (d) The contracting officer shall establish the competitive range on all acquisitions. This is accomplished by approval of the SEP's written recommendation transmitted by the DO. (e) The source selection official is the contracting officer. Selection is made based on review of the SEP's recommendations as endorsed by the DO, together with all supporting data to assure that award is in accordance with sound procurement principles and directly related to the evaluation criteria as set forth in the solicitation. Any proposed 66

selection not endorsed by the DO will be concurred in by the Head of the Contracting Activity. §2015.670 Contract provisions. (a) The contracting officer shall include the provision found at §2052.215-82, Contract Award and Evaluation of Proposals, in all solicitations except that: (1) The contracting officer shall substitute the paragraph found at §2052.215-83 for paragraph (b) in all solicitations for negotiated competitive procurements where cost is more important than technical merit. (2) The contracting officer shall substitute the paragraph found at §2052.215-84 for paragraph (b) in all solicitations for negotiated competitive procurements where cost and technical merit are of equal significance. (b) The contracting officer may make appropriate changes to the provision to accurately reflect other evaluation procedures, such as evaluation of proposals against mandatory criteria and benchmarking criteria for ADP procurements. Part 2016 - TYPES OF CONTRACTS Subpart 2016.3 - Cost Reimbursement Contracts 67

2016.307-70 Contract provisions and clauses. Subpart 2016.5 - Indefinite-Delivery Contracts 2016.506-70 Contract provisions and clauses*. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2016.3 - Cost Reimbursement Contracts §2016.307-70 Contract provisions and clauses. (a) The contracting officer shall insert the clause at §2052.216-70, Level of Effort, in solicitations for negotiated procurements containing labor costs other than maintenance services, to be awarded on a cost reimbursement, cost sharing, cost plus award fee, cost plus fixed fee, time and materials, or labor hour basis. (b) The contracting officer shall insert the following provisions and clauses in all cost reimbursement contracts: (1) Section 2052.216-71, Indirect Cost Rates (where provisional rates without ceilings apply). 68

(2) Section 2052.216-72, Indirect Cost Rates - Alternate 1 (where predetermined rates apply). (3) Section 2052.216-73, Indirect Cost Rates - Alternate 2 (where provisional rates with ceilings apply). (c) The contracting officer may make appropriate changes to these clauses to reflect different arrangements. Subpart 2016.5 - Indefinite-Delivery Contracts. 2016.506-70 Contract provisions and clauses. The contracting officer shall insert the following provisions in all solicitations and contracts that contain task order procedures: (a) Section 2052.216-74, Task Order Procedures; (b) Section 2052.216-75, Accelerated Task Order Procedures. SUBCHAPTER D - SOCIOECONOMIC PROGRAMS Part 2019 - SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS Subpart 2019.7 - Subcontracting with small business and small disadvantaged business concerns. 69

2019.705 Responsibilities of the contracting officer under the subcontracting assistance program. 2019.705-2 Determining the need for a subcontracting plan. 2019.705-4 Reviewing the subcontracting plan. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. ,*- 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2019.7 - Subcontracting with Small Business and Small Disadvantaged Business Concerns

   §2019-705       Responsibilities of the contracting officer under the subcontracting assistance program.
   §2019.705-2     Determining the need for a subcontracting plan.

In determining whether the acquisition meets the dollar threshold established in FAR 19.702 for requiring a subcontracting plan, the total value of the acquisition must be considered, including the value of all proposed option quantities and funding actions.

   §2019.705-4   Reviewing the subcontracting plan.

70

(a) During the source selection process, subcontracting plans may be requested from all concerns determined to be in the competitive range, for negotiation with the apparent successful offeror. (b) The contracting officer may accept the terms of an overall or "master" company subcontracting plan incorporated by reference into a specific subcontracting plan submitted by the apparent successful offeror/bid fo~ a specific contract, if: (1) The master plan contains all of the elements required by FAR 19.704; (2) Subcontracting goals for""'"small and small disadvantaged business concerns are specifically set forth in each contract or modification over the statutory threshold; (3) Any changes to the plan deemed necessary and required by the contracting officer in areas other than goals are specifically set forth in the contract or modification; and (4) The contracting officer has copies of the entire plan. Part 2020 - LABOR SURPLUS AREA CONCERNS Subpart 2020.1 General Sec. 2020.102 - General policy. 71

AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2020.1 - General §2020.102 General policy. Acquisitions that are in excess of $25,000 must be reviewed for potential labor surplus area set-aside consideration in accordance with FAR 20.104 using publications and other information identifying labor surplus areas obtained from: U.S. Department of Labor Employment and Training Administration U.S. Employment Service Office of Labor Market Information 200 Constitution Ave., NW., Room N4456 Washington, DC 20510 Telephone Number: (202) 535-0157 Part 2022 - APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS Subpart 2022.1 Basic Labor Policies. Sec. 72

2022.103-4 Approvals. Subpart 2022.9 Nondiscrimination Because of Age. 2022.901-70 Contract provisions. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat, 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2022.1 Basic Labor Policies §2022.103-4 Approvals. The agency approving official for approval of contractor overtime shall be the contracting officer. Subpart 2022.9 - Nondiscrimination Because of Age. §2022.901-70 Contract provisions. The contracting officer shall insert the provision found at §2052.222-70, Nondiscrimination Because of Age, in all solicitations. 73

Part 2024 - PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION Subpart 2024.1 Protection of Individual Privacy Sec. 2024.103 Procedures. Subpart 2024.2 - Freedom of Information Act 2024.202 Policy. AUTIIORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2024.1 - Protection of Individual Privacy §2024.103 Procedures. The provisions at 10 CFR Part 9, Subpart B, Privacy Act Regulations, are applicable to the maintenance or disclosure of information for a system of records on individuals. Subpart 2024.2 - Freedom of Information Act §2024.202 Policy. 74

The provisions at 10 CFR Part 9, Subpart A, Freedom of Information Act Regulations are applicable to the availability of NRC records to the public. Part 2025 - FOREIGN ACQUISITION Subpart 2025.1 - Buy American Act - Supplies 2025.102 Policy. - AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2025.1 - Buy American Act - Supplies

 §2025.102 Policy.

Contracting officers may make the determination required by FAR 25.102(a)(4), provided the determination is factually supported in writing. For contracts exceeding $1 million, the Head of the Contracting Activity shall approve the determination. SUBCHAPTER E - GENERAL CONTRACTING REQUIREMENTS Part 2027 - PATENTS, DATA, AND COPYRIGHTS 75

Subpart 2027.3 - Patent Rights Under Government Contracts. 2027.305 Administration of patent rights clauses. 2027.305-3 Follow-up by Government. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1241, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2027.3 - Patent Rights Under Government Contracts.

 §2027.305   Administration of patent rights clauses.

The contracting officer shall assure that each contractor report is in - writing on whether any*patent rights are being claimed, prior to final payment and closeout of the contract.

 §2027.305-3    Follow-up by Government.

(a) The contracting officer shall, as a part of the closeout of a contract, require each contractor to report on any patents, copyrights, or royalties attained using any portion of the contract funds. The contractor shall, if no activity is to be reported, certify that in connection with the performance of the contract: 76

(1) No inventions or discoveries were made, (2) No copyrights were secured, produced, or composed, (3) No notices or claims of patent or copyright infringement have been received by the contractor or its subcontractors, and (4) No royalty payments were directly involved in the contract or reflected in the contract price to the Government, nor were any royalties or other payments paid or are there any to be paid directly to others. (b) The contracting officer shall notify agency legal counsel responsible for patents whenever a contractor reports any patent, copyright, or royalty activity, and shall document the official file with the resolution to protect the Government's rights prior to making any final payment and closing out the contract. Part 2030 - COST ACCOUNTING STANDARDS Subpart 2030.2 - CAS Program Requirements. Sec. 2030.201-5 Waiver. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1241, as amended (42 U.S.C. 5.841); Pub. L. 93-400, 88 Stat. 77

796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2030.2 - GAS Program Requirements.

 §2030.201-5   Waiver.

In accordance with the FAR 30.201-5(c), the Head of the Contracting - Activity may waive GAS requirements. Part 2031 - CONTRACT COST PRINCIPLES AND PROCEDURES Subpart 2031.1 - Applicability. 2031.109-70 Contract clauses. AlifHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, a.s amended by Puhl. L. 96-83, 93 stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2031.1 - Applicability

 §2031.109-70   Contract clauses.

78

The contracting officer shall insert the clause at §2052.231-70, Precontract Costs, in all cost type contracts when costs in connection with work under the contract will be incurred by the contractor prior to the effective date of the contract. Approval for use of this clause shall be obtained at one level above the contracting officer. Part 2032 - CONTRACT FINANCING Subpart 2032.4*- Advance Payments Sec. 2032.402 General. 2032.406 Letters of credit. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2032.4 - Advance Payments §2032.402 General. (a) The contracting officer shall have the responsibility and authority for making findings and determinations, and for approval of contract terms concerning advance payments. 79

(b) Before authorizing any advance payment agreements except for subscriptions to publications, the approving official shall coordinate with the Office of the Controller, Division of Accounting and Finance, to ensure completeness of contractor submitted documentation.

 §2032.406 - Letters of credit.

Prior to authorizing a letter of credit arrangement, the contracting - officer shall coordinate with the Office of the Controller, Division of Accounting and Finance, to ensure completeness of contractor submitted documentation. Part 2033 - PROTESTS, DISPUTES AND APPEALS Subpart 2033.1 - Protests

• 2033.103 2033.203 Protests to the agency.

Applicability. 2033.211 Contracting officer's decision. 2033.214 Contract clause. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat 648, Pub. L. 98-577,. 98 Stat. 3074 (41 U.S.C. 401 et seq.). 80

Subpart 2033.l Protests

 §2033.103   Protests to the agency.

(a) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the closing date for receipt of proposals must be filed prior to bid opening date or the closing date for receipt of initial proposals. In acquisitions where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation - must be protested not later than prior to the next closing date for receipt of proposals following the incorporation. (b) In cases other than those covered in paragraph (a) of this section, protests must be filed not later than ten working days after the basis of protest is known or should have been known, whichever is earlier .

• (c) The agency may not process, or shall cease processing, agency level protests that are protested outside the agency.

 §2033.203   Applicability.

(a) Pursuant to an interagency agreement between the NRC and the Department of Energy Board of Contract of Appeals (EBCA), the EBCA will hear appeals from final decisions of NRC contracti~g officers issued pursuant to the Contract Disputes Act. The EBCA rules appear in 10 CFR Part 1023. 81

 §2033.211  Contracting officer's decision.

(a) Contracting officers shall alter the paragraph at FAR 33.2ll(a)(4)(iv) to identify the Energy Board of Contract Appeals and include its address: Webb Building, Room 1006, 4040 N. Fairfax Drive, Arlington, Virginia 22203, when preparing a written decision.

 §2033.214  Contract clause.

(a) The contracting officer shall use the clause at FAR 52.233-1, - Disputes, with its Alternate I where continued performance is vital to National security, the public health and safety, critical and major agency programs, or other essential supplies or services whose timely reprocurement from other sources would be impracticable. SUBCHAPTER F - SPECIAL CATEGORIES OF CONTRACTING Part 2035 - RESEARCH AND DEVELOPMENT CONTRACTING Sec. 2035.70 Contract clauses. 2035.71 Broad agency announcements. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). 82

§2035.70 Contract clauses. The contracting officer shall insert the following clauses in all RFPs for Research and Development or in Requests for Proposals (RFPs) for other technical services as appropriate:

         §2052.235-70, Dissemination of Contract Information.
         §2052.235-71, Private Use of Contract Information and Data.
         §2052.235-72, Safety, Health and Fire Protection.

§2035.71 Broad agency announcements. (a) The Competition in Contracting Act provides the Broad Agency Announcement (BAA) as an alternative method to the full competitive process for funding research. This acquisition method refers to the competitive selection of basic or applied research proposals resulting from a BAA published in the Commerce Business Daily (CBD). The publication of the BAA in the CBD satisfies the FAR requirement for full and open competition~ A primary benefit of the BAA is the ability to make multiple awards on the basis of one announcement which reduces the procurement lead-time and the staff effort involved in initiating several competitive projects. It also provides flexibility in source selection, based on the merits of the individual proposal(s). (b) The BAA is an efficient means of soliciting competitive basic or applied research "ideas." BAAs may be used to fulfill requirements for scientific study and experimentation directed toward advancing the 83

state-of-the-art, or increasing knowledge or understanding rather than focusing on a specific system or hardware solution. The BAA technique may only be used when meaningful proposals with varying technical/scientific approaches can be reasonably anticipated. (1) The BAA consists of the following: (i) A description of the agency's research interest, either for an individual program requirement or for broadly defined areas of interest covering the full range of the agency's requirements; (ii) A description of the criteria for selecting the proposals, their relative importance and the method of evaluation. (iii) A specification of the period of tim~ during which proposals submitted in response to the BAA will be accepted; and (iv) Instructions for the preparation and submission of proposals. (2) Proposals received as a result of the BAA must be evaluated in accordance with evalution criteria specified in the announcement by a peer or scientific review group established by the Designating Official. The BAA evaluation criteria should include "scientific merit" and should describe the method that will be used for evaluating proposals. Written evaluation reports on individual proposals are necessary, but proposals will not be evaluated against each other since they are not submitted in accordance with 84

a common work statement. Criteria for selecting contractors will include such factors as: (i) Unique and innovative methods, approaches, or concepts demonstrated by the proposal. (ii) Overall scientific, technical, or socio-economic merits of the proposal. (iii) The offerer's capabilities, related experience, facilities, techniques, or unique combinations of these which are integral factors for achieving the proposal objectives. (iv) The qualifications, capabilities, and experience of the proposed principal investigator, team leader, or key personnel who are critical in achieving the proposal objectives. (v) Potential contribution of the effort to NRC's mission. (vi) Overall standing among similar proposals available for evaluation and/or evaluation against the known state-9f-the-art. (3) Once a proposal is received, communication between the agency's scientific or engineering personnel and the principal investigator is permitted for clarification purposes only and must be coordinated through the Division of Contracts and Property Management. 85

(c) After evaluation of the proposals, the Designating Official shall submit a comprehensive evalution report to the contracting officer which recommends the source(s) for contract award. The report must reflect the basis for the selection or nonselection of each proposal received. Part 2039 - ACQUISITION OF INFORMATION RESOURCES Sec. 2039.001 Policy. 2039.002 Delegations of procurement authority. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). 2039.001 Policy. In accordance with the Federal Information Resources Management Regulation (41 CFR Ch. 201), and appropriate NRC Manual issuances, the Office of Information Resources Management will be responsible for development and approval of information resources studies, including analyses of alternatives, software conversion studies, and other requirements analyses for information resources management procurements in excess of $25,000 (automated data processing, telecommunications, and records), when required. These documents must be submitted to the Division 86

of Contracts and Property Management with the Request for Procurement Action (RFPA) for which these documents are required. 2039.002 Delegations of procurement authority. The NRC official authorized to sign Agency Procurement Requests and Agency Telecomnunications Requests for Delegations of Procurement Authority is the Director, Office of Information Resources Management. SUBCHAPTER G - CONTRACT MANAGEMENT Part 2042 - CONTRACT ADMINISTRATION Subpart 2042.8 - Disallowance of Costs 2042.803 Disallowing costs after incurrence. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2042.8 - Disallowance of Costs §2042.803 Disallowing costs after incurrence. 87

(a) Vouchers and invoices submitted to NRC must be submitted to the contracting officer or designee for review and approval for payment. If the examination of a voucher or invoice raises a question regarding the allowability of a cost submitted, the contracting officer shall: (1) Hold informal discussions with the contractor as appropriate. (2) If the discussions do not resolve the matter, the contracting officer shall issue a notice advising the contractor of costs disallowed. The notice must advise the contractor that it may: (i) If in disagreement with the disallowance, submit a written claim to the contracting officer as to why the cost should be reimbursed; or (ii) If the disagreement(s) cannot be settled, file a claim under the disputes clause which will be processed in accordance with disputes procedures found at FAR 33.2; and (3) Process the voucher or invoice for payment and advise the NRC Division of Accounting and Finance to deduct the disallowed costs when scheduling the voucher for payment. (b) When audit reports or other notifications question costs or consider them unallowable, the contracting officer shall resolve all cost 88

issues through discussions with the contractor and/or auditor within six months of receipt of the audit report. (1) One of the following courses of action must be pursued: (i) Accept and implement audit recommendations as submitted. (ii) Accept the principle of the audit recommendation but adjust the amount of the questioned costs. (iii) Reject audit findings and recommendations. (2) When implementing the chosen course of action, the contracting officer shall-(i) Hold discussions with the auditor and contractor, as appropriate; (ii) If the contracting officer agrees with the auditor concerning the questioned costs, attempt to negotiate a mutual settlement of questioned costs; (iii) Issue a final decision including any disallowance of questioned costs, and inform the contractor of his/her right to appeal the decision under the disputes procedures found at FAR 33.2, and provide a copy of the final decision to the Office of the Inspector General; and 89

(iv) Initiate immediate recoupment actions for all disallowed costs owed the government by one or more of the following methods: (A) Requesting that the contractor provide a credit adjustment (offset) against amounts billed the government on the next or other future invoice(s) submitted under the contract for which the disallowed costs apply; (B) Deducting the disallowed costs from the next invoice submitted under the contract; (C) Deducting the disallowed costs on a schedule determined by the contracting officer after discussion with the contractor (if the contracting officer determines that an immediate and complete deduction is inappropriate); and (D) Advising the contractor that a refund is immediately payable to the government (in situations where there are insufficient payments owed by the government to effect recovery from the contract). PART 2045 - GOVERNMENT PROPERTY Subpart 2045.3 - Providing Government Property to Contractors Sec. 90

2045.370 Providing government property (in general). AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41' U.S.C. 401 et seq.). Subpart 2045.3 - Providing Government Property to Contractors

§2045.370   Providing government property (in general).

(a) A contractor may be provided Government property or allowed to purchase the property at Government expense upon determination made by the _contracting officer with the advice of the agency property official that: (1) No practicable or economical alternative exists; e.g., acquisition from other sources, utilization of subcontractors, rental of property, or modification of program project requirements; (2) Furnishing _Government property is likely to result in substantially lower costs to the Government for the items produced or services rendered when all costs involved (e.g., transportation, installation, modification, maintenance, etc.) are compared with the costs to the Government of the contractor's use of privately-owned property; and 91

,.,, I (3) The Government receives adequate consideration for providing the property. (b) If the program office is aware prior to the submission of the request for procurement action (RFPA) that it will be necessary to provide prospective contractors with Government property, a written justification must accompany the RFPA to the Division of Contracts and Property Management. SUBCH.APTER H - CLAUSES AND FORMS Part 2052 - SOLICITATION PROVISIONS AND CONTRACT CLAUSES Subpart 2052.2 Text of Provisions and Clauses 2052.200 Authority. 2052.204-70 Security. 2052.204-71 Site access badge requir~ments. 2052.209-70 Qualifications of contract employees. 2052.209-71 Current/former agency employee involvement. 2052.209-72 Certification regarding debarment status. 2052.209-73 Contractor organizational conflicts of interest (representation). 2052.209-74 Contractor organizational conflicts of interest. 2052.209-75 Contractor organizational conflicts of 92

interest - language for follow-on contracts. 2052.209-76 Contractor organizational conflicts of interest - language for work for others. 2052.209-77 Contractor organizational conflicts of interest - language for task order contracts. 2052.210-70 Brand name products or equal. 2052.210-71 Drawings, designs, specifications, and other data. 2052.212-70 Preparation of technical reports. 2052.212-71 Technical progress report. - 2052.212-72 2052.214-70 2052.214-71 Financial status report. Prebid conference. Bidder qualifications and past experiences. 2052.214-72 Bid evaluation. 2052.214-73 Timely receipt of bids. 2052.214-74 Disposition of bids. 2052.215-70 Preproposal conference. 2052.215-71 Proposal presentation and format. - 2052. 215-72 2052.215-73 Proposal presentation and format - language for negotiated task order contracts. Data universal numbering system (DUNS) number. 2052.215-74 Key personnel. 2052.215-75 Travel reimbursement. 2052.215-76 Travel approvals. 2052. 215-77 Project officer authority. 2052.215-78 Project officer authority - Alternate 1. 2052.215-79 Timely receipt of proposals. 93

2052.215-80 Award notification and commitment of public funds. 2052.215-81 Disposition of proposals. 2052.215-82 Contract award and evaluation of proposals. 2052.215-83 Contract award and evaluation of proposals - cost more important than technical merit. 2052.215-84 Contract award and evaluation of proposals - cost and technical merit of equal value. 2052.216-70 Level of effort. 2052. 216-71 Indirect cost rates. - 2052.216-72 2052.216-73 2052.216-74 Indirect cost rates - Alternate 1. Indirect cost rates - Alternate 2. Task order procedures. 2052.216-75 Accelerated task order procedures. 2052.222-70 Nondiscrimination because of age. 2052.231-70 Preaward costs. 2052.235-70 Dissemination of contract information. 2052.235-71 Private use of contract information and data. 2052.235-72 Safety, health, and fire protection. AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 93-400, 88 Stat. 796, as amended by Pub. L. 96-83, 93 Stat. 648, Pub. L. 98-577, 98 Stat. 3074 (41 U.S.C. 401 et seq.). Subpart 2052.2 Text of Provisions and Clauses 94

§2052.200 Authority. §2052.204-70 Security. As prescribed at §2004.404(a), insert the following clause in applicable solicitations and contracts: Security (a) Security/Classification Requirements Form. The attached NRC Form 187 (See Section J for List of Attachments) furnishes the basis for providing security and classification requirements to prime contractors, subcontractors or others (e.g., bidders) who have or may have an NRC contractual relationship which requires access to classified information or matter, access on a continuing basis (in excess of 30 days) to NRC Headquarters controlled buildings or otherwise requires NRC photo identification or card-key badges. (b) It is the contractor's duty to safeguard Restricted Data, Formerly Restricted Data, and other classified information. The contractor shall, in accordance with the Commission's security regulations and requirements, be responsible for safeguarding Restricted Data, Formerly Restricted Data, and other classified information and protecting against sabotage, espionage, loss and theft, the classified documents and material in the contractor's possession in connection with the performance of work under this contract. Except as otherwise expressly provided in this contract, the contractor shall, upon completion or termination of this contract, transmit to the 95

Commission any classified matter in the possession of the contractor or any person under the contractor's control in connection with performance of this contract. If retention by the contractor of any classified matter is required after the completion or termination of the contract and such retention is approved by the contracting officer, the contractor shall complete a certificate of possession to be furnished to the Commission specifying the classified matter to be retained. The certification must identify the items and types or categories of matter retained, the conditions governing the retention of the matter and their period of retention, if known. If the retention is approved by the contracting officer, the security provisions of the contract continue to be applicable to the matter retained. (c) In connection with the performance of the work under this contract, the contractor may be furnished, or may develop or acquire, proprietary data (trade secrets) or confidential or privileged technical, business, or financial information, including Commission plans, policies, reports, financial plans, internal data protected by the Privacy Act of 1974 (P.L. 93-579), or other information which has not been released to the public or has been determined by the Commission to be otherwise exempt from disclosure to the public. The contractor agrees to hold the information in confidence and not to directly or indirectly duplicate, disseminate, or disclose the information in whole or in part to any other person or organization except as may be necessary to perform the work under this contract. The contractor agrees to return the information to the Commission or otherwise dispose of it either as the contracting officer may from time to time direct during the progress of the work or in any event as the 96

contracting officer shall direct upon completion or termination of this contract. Failure to comply with this clause is grounds for termination of this contract. (d) Regulations. The contractor agrees to conform to all security

• regulations and requirements of the Commission.

(e) Definition of Restricted Data. The term "Restricted Data," as used in this clause, means all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but does not include data declassified or removed from the Restricted Data category pursuant to Section 142 of the Atomic Energy Act of 1954, as amended. (f) Definition of Formerly Restricted Data. The term "Formerly Restricted Data," as used in this clause, means all data removed from the Restricted Data category under Section 142-d of the Atomic Energy Act of 1954, as amended. (g) Security clearance personnel. The contractor may not permit any individual to have access to Restricted Data, Formerly Restricted Data, or other classified information, except in accordance with the Atomic Energy Act of 1954, as amended, and the Commission's regulations or requirements applicable to the particular type or category of classified information to which access is required. 97

(h) Criminal liabilities. It is understood that disclosure of Restricted Data, Formerly Restricted Data, or other classified information relating to the work or services ordered hereunder to any person not entitled to receive it, or failure to safeguard any Restricted Data, Formerly Restricted Data, or any other classified matter that may come to the contractor or any person under the contractor's control in connection with work under this contract, may subject the contractor, its agents, employees or subcontractors to criminal liability under the laws of the United States. (See the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq.; 18 U.S.C. 793 and 794; and Executive Order 12356.) (i) Subcontracts and purchase orders. Except as otherwise authorized in writing by the contracting officer, the contractor shall insert provisions similar to the foregoing in all subcontracts- and purchase orders under this contract. (j) In performing the contract work, the contractor shall assign classifications 'to all documents, material, and equipment originated or generated by the contractor in accordance with classification guidance issued by the Commission. Every subcontract and purchase order issued hereunder involving the origination or generation of classified documents, material, and equipment shall provide that the subcontractor or supplier assign classifications to all such documents, material, and equipment in accordance with classification guidance furnished by the contractor. (End of Clause) 98

 §2052.204-71   Site access badge requirements.

As prescribed at §2004.404(b), insert the following clause in applicable solicitations and contracts: Site Access Badge Requirements During the life of this contract, the rights of ingress and egress for contractor personnel must be made available as required. In this regard, all contractor personnel whose duties under this contract require their presence on-site shall be clearly identifiable by a distinctive badge furnished by the Government. The Project Officer shall assist the contractor in obtaining the badges for the contractor personnel. It is the sole responsibility of the contractor to ensure that each employee has proper identification at all times. All prescribed identification,must be immediately delivered to the Security Office for cancellation or disposition upon the termination of employment of any contractor personnel. Contractor - personnel must have this identification in their possession during on-site performance under this contract. It is the contractor's duty to assure that contractor personnel enter only those work areas necessary for performance of contract work, and to assure the safeguarding of any Government records or data that contractor personnel may come into contact with. Adherence to special requirements for Foreign Nationals, in accordance with NRC Manual Chapter 2101, Part VII.C is the responsibility of the contractor. (End of Clause)

 §2052.209-70    Qualifications of contract employees.

99

As prescribed at §2009.105-70(a), insert the following provision in applicable solicitations: Qualifications of Contract Employees The offeror hereby certifies by submission of this offer that all representations made regarding its employees, proposed subcontractor personnel and consultants are accurate. (End of Provision) §2052.209-71 Current/former agency employee involvement. As prescribed at §2009.105-70(b), insert the following provision in applicable soliciations: Current/Former Agency Employee Involvement (a) The following representation is required by the NRG Acquisition Regulation 2009.105-70(b). It is not NRG policy to encourage offerers and contractors to propose current/former agency employees to perform work under NRG contracts, and as set forth in the above cited provision, the use of such employees can adversely affect NRC's consideration of non-competitive proposals and task orders. (b) The offerer hereby certifies that there ( ) are ( ) are not current/former NRG employees who have been or will be involved, directly or 100

a indirectly, in developing the offer, or in negotiating on behalf of the offeror, or in managing, administering or performing any contract, consultant agreement or subcontract resulting from this offer. For each individual so identified, the Technical and Management proposal must contain, as a separate attachment the name of the individual, the individual's title while employed by the NRC, the date individual left NRC, and brief description of the individual's role under this proposal. (End of Provision)

 §2052.209-72   Certification regarding debarment status.

As prescribed at §2009.405-2(a), insert the following provision in applicable solicitations: Certification Regarding Debarment Status The offerer hereby certifies by submission of this offer that it and any subcontractor(s) that will be performing under this contract is not a debarred person or firm. (End of Provision)

 §2052.209-73   Contractor organizational conflicts of interest (representation).

101

As prescribed in §2009.570-4(b), insert the following provision in applicable solicitations: Contractor Organizational Conflicts of Interest Representation I represent to the best of my knowledge and belief that: The award to _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ of a contract or the modification of an existing contract does/ / does not/ / involve situations or relationships of the type set forth in §2009.570-3(b). (a) If the representation, as completed, indicates that situations or relationships of the type set forth in §2009.570-3(b) are involved, or the contracting officer otherwise determines that potential organizational conflicts of interest exist, the offerer shall pro~ide a statement in writing which describes in a concise manner all relevant factors bearing on his representation to the contracting officer. If the contracting officer determines that organizational conflicts exist, the following actions may be taken: (1) Impose appropriate conditions which avoid such conflicts, (2) Disqualify the offerer, or (3) Determine that it is otherwise in the best interest of the United States to seek award of the contract under the waiver provisions of

    §2009-570-9.

102

(b) The refusal to provide the representation required by

 §2009.570-4(b), or upon request of the contracting officer, the facts required by §2009.570-3(b), must result in disqualification of the offeror for award. The nondisclosure or misrepresentation of any relevant interest may also result in the disqualification of the offeror for awards; or if nondisclosure or misrepresentation is discovered after award, the resulting contract may be terminated. The offeror may also be disqualified from subsequent related NRC contracts and be subject to such other remedial actions provided by law or the resulting contract.

(End of Provision)

 §2052.209-74    Contractor organizational conflicts of interest.

As prescribed at §2009.570-S(a), insert the following clause in all applicable solicitations and contracts: Contractor Organizational Conflicts of Interest - (a) Purpose. The primary purpose of this clause is to aid in ensuring that the contractor: (1) is not placed in a conflicting role because of current or planned interests (financial, contractual, organizational, or otherwise) which relate to the work under this contract, and (2) does not obtain an unfair competitive advantage over other parties by virtue of its performance of this contract. 103

(b) Scope. The restrictions described apply to performance or participation by the contractor as defined in 48 CFR 2009.570-2 in the activities covered by this clause. (c) Work for others. Notwithstanding any other provision of this contract, during the term of this contract, the contractor agrees to forego entering into consulting or other contractual arrangements with any firm or organization, the result of which may give rise to a conflict of interest with respect to the work being performed under this contract. The contractor shall ensure that all employees under this contract abide by the provision of this clause. If the contractor has reason to believe with respect to itself or any employee that any proposed consultant or other contractual arrangement with any firm or organization may involve a potential conflict of interest, the contractor shall obtain the written approval of the contracting officer prior to execution of such contractual arrangement. (d) Disclosure after award. (1) The contractor warrants that to the best of its *knowledge and belief, and except as otherwise set forth in this contract, it does not have any organizational conflicts of interest as defined in 48 CFR 2009.570-2. (2) The contractor agrees that, if after award, it discovers organizational conflicts of interest with respect to this contract, it shall make an immediate and full disclosure in writing to the 104

contracting officer. This statement must include a description of the action which the contractor has taken or proposes to take to avoid or mitigate such conflicts. The NRG may, however, terminate the contract if termination is in the best interest of the Government. (e) Access to and use of information. (1) If the contractor in the performance of this contract obtains access to information, such as NRG plans, policies, reports, studies, financial plans, internal data protected by the Privacy Act of 1974 (Pub. L. 93-579), or data which has not been released to the public, the contractor agrees not to: (i) Use this information for any private purpose until the information has been released to the public; (ii) Compete for work for the Commission based on the information for a period of six months after ?ither the completion of this contract or the release of the information to the public, whichever is first; (iii) Submit an unsolicited proposal to the Government based on the information until one year after the release of the information to the public, or 105

(iv) Release the information without prior written approval by the contracting officer unless the information has previously been released to the public by the NRG. (2) 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 (Pub. L. 93-579), or other confidential or privileged technical, business, or financial information under this contract, the contractor shall treat the information in accordance with restrictions placed ;n-use of the information. (3) The contractor shall have, subject to patent and security provisions of this contract, the right to use technical data it produces under this contract for private purposes provided that all requirements of this contract have been met. (f) Subcontracts. Except as provided in 48 CFR 2009.570-Z(g), the contractor shall include this clause, including this paragraph, in subcontracts of any tier. The terms "contract," "contractor," and "contracting officer," must be appropriately modified to preserve the Government's rights. (g) Remedies. For breach of any of the above restrictions, or for intentional nondisclosure or misrepresentation of any relevant interest required to be disclosed concerning this contract or for such erroneous representations that necessarily imply bad faith, the Government may terminate the contract for default, disqualify the contractor from 106

subsequent contractual efforts, and pursue other remedies permitted by law or this contract. (h) Waiver. A request for waiver under this clause must be directed in writing through the contracting officer to the Executive Director for Operations (EDO) in accordance with the procedures outlined in 48 CFR 2009.570-9. (End of Clause) §2052.209-75 Contractor organizational conflicts of interest - language for follow-on contracts. As prescribed by §2009.570-5(b), add the following to the general clause found at §2052.209-74: (a) Follow-on effort. The contractor shall be ineligible to participate in NRC contracts, subcontracts, or proposals therefor (solicited or unsolicited) which stem directly from the contractor's performance of work under this contract. Furthermore, unless so directed in writing by the contracting officer, the contractor may not perform any technical consulting or management support services work or evaluation activities under this contract on any of its products or services or the products or services of another firm if the contractor has been substantially involved in the development or marketing of the products or services. (1) If the contractor, under this contract, prepares a complete 107

or essentially complete statement of work or specifications, the contractor is not eligible to perform or participate in the initial contractual effort which is based on the statement of work or specifications. The contractor may not incorporate its products or services in the statement of work or specifications unless so directed in writing by the contracting officer, in which case the restrictions in this paragraph do not apply. (2) Nothing in this paragraph precludes the contractor from offering or selling its standard commercial items to the Government. §2052.209-76 Contractor organizational conflicts of interest - language for work for others. As prescribed at §2009.570-S(c), add the following to the general clause found at §2052.209-74: (2) The contractor may not perform any services for any NRC licensee or applicant that are the same as, or substantially similar to, the services contemplated under the scope of work for this contract without prior written approval of the NRG contracting officer. (3) The contractor may not represent, assist, or otherwise support an NRG licensee or applicant undergoing an NRC audit, inspection, or review where the activities that are the subject of the audit, inspection or review are the same as or substantially similar to the services within the scope of this contract, except where the NRG 108

licensee or applicant requires the contractor's support to explain or defend the contractor's prior work for the utility or other entity which NRC questions.

 §2052.209-77  Contractor organizational conflicts of interest - language for task order contracts.

As prescribed at §2009.570-5(d), the following two additions shall be - made to the general clause found at §2052.209-74: (a) Add to paragraph (b), "Scope," the following sentence: Except where a lesser limitation is stated, these provisions apply to the entire subject matter set forth in the scope of work for the entire period of contract performance, including any extensions, and are therefore not limited to the scope or duration of a particular task order. (b) Add to paragraph (d), "Disclosure after award," a new paragraph (d)(3) as follows: Recognizing that the scop? of work of this task order type, contract necessarily encompasses a broad spectrum of activities, the contractor agrees that it will disclose 411 proposed new work of any type involving NRG licensees or applicants. Such disclosure must be made prior to the 109

submission of a bid or proposal to the utility or other regulated entity whenever possible, and must be received by the NRC at least 15 days prior to the proposed award date in any event. The disclosure must include the statement of work and any other documents that are needed to fully describe the proposed work for the regulated utility or other regulated entity. - §2052.210-70 Brand name products or equal. As prescribed at §2010.004, insert the following clause in applicable solicitations and contracts: Brand Name Products or Equal Offerers (proposers) offering other than brand name items identified herein should furnish with their offers adequate information to ensure that a determination can be made as to equality of the product(s) offered.

 §2052.210-71   Drawings, designs, specifications, and other data.

As prescribed at §2010.011, the following clause shall be submitted in applicable solicitations and contracts: Drawings, Designs, Specifications, and Other Data 110

All drawings, sketches, designs, design data, specifications, notebooks, technical and scientific data, and all photographs, negatives, reports, findings, recommendations, other data and memoranda of every description relating thereto, as well as all copies of the foregoing relating to the work or any part thereto, are subject to inspection by the Commission at all reasonable times. Inspection of the proper facilities must be afforded the Commission by the contractor and its subcontractors. These data are the property of the Government and may be used by the - Government for any purpose whatsoever without any claim on the part of the contractor and its subcontractors and vendors for additional compensation - and must, subject to the right of the contractor to retain a copy of the material for its own use. These data must be delivered to the Government, or otherwise disposed of by the contractor as the contracting officer may direct during the progress of the work or upon completion or termination of this contract. The contractor's right of retention and use is subject to the security, patent, and use of information provisions, if any, of this contract. (End of Clause)

 §2052.212-70   Preparation of technical reports.*

As prescribed at §2012.104-70(a), insert the clause in applicable solicitations and contracts: Preparation of Technical Reports 111

All technical reports required by Section C and all Technical Progress Reports required by Section Fare to be prepared in accordance with the attached NRC Manual Chapter 3202, "Publication of Technical Reports Prepared by NRC Contractors, Including Reports Prepared Under or Pursuant to Interagency Agreements." NRC Manual Chapter 3202 is not applicable to any Contractor Spending Plan and any Financial Status Report that may be included in this contract. (See Section J for List of Attachments). (End of Clause) §2052.212-71 Technical progress report. As prescribed at §2012.104-70(b), insert the following clause in applicable solicitations and contracts: Technical Progress Report The contractor shall provide a monthly Technical Progress Report to the project officer and the contracting officer. The report is due within 15 calendar days after the end of the report period and shall identify the title of the project, the contract number, FIN number, project manager and/or principal investigator, the contract period of performance, and the period covered by the report. Each report must include the following for each discrete task/task order: (a) A listing of the efforts completed during the period; milestones reached or, if missed, an explanation provided; 112

(b) Any problems or delays encountered or anticipated and recommendations for resolution; (if the recommended resolution involves a contract modification, e.g., change in work requirements, level of effort (cost) or schedule delay, the contractor shall submit a separate letter to the contracting officer identifying the required change and estimated cost impact). (c) A summary of progress to date; and (d) Plans for the next reporting period. (End of Clause) §2052.212-72 Financial status report. As prescribed at §2012.104-70(c), insert the following clause in applicable solicitations and contracts: Financial Status Report The contractor shall provide a monthly Financial Status Report to the project officer and the contracting officer. The report is due within 15 calendar days after the end of the report period and must identify the title of the project, the contract number, FIN number, project manager and/or principal investigator, the contract period of performance, and the period covered by the report. Each report must include the following for each discrete task: 113

(a) Provide total estimated cost (value) of the project as reflected in the contract, the amount of funds available in the contract to date, and the balance of funds required to complete the work as follows: (1) Total estimated contract amount. (2) Total funds obligated to date. (3) Total costs incurred this reporting period. (4) Total costs incurred to date. ,e (5) (6) Balance of obligations remaining. Balance of funds required to complete contra.ct.

-      (b)  Details of all direct and indirect-costs incurred during the reporting period for each task.

(c) Update the approved Contractor Spending Plan (CSP) if required under this contra.ct. If there have been no changes to the projections, a certification to that effect may be provided with the Financial Status Report in lieu of the CSP. (End of Clause)

  §2052.214-70    Prebid conference.

As prescribed in §2014.201-670(a), insert the following provision in applicable solicitations: Prebid Conference 114

(a) A prebid conference is scheduled for: Date:

• Location:
• Time: *

(b) This conference is to afford interested parties an opportunity to present questions and clarify uncertainties regarding this solicitation. You are requested to mail written questions concerning those areas of uncertainty which, in your opinion, require clarification or correction. You are encouraged to submit your questions in writing not later than* working day(s) prior to the conference date. Receipt of late questions may result in the questions not being answered at the conference although they will be considered in preparing any necessary amendment to the solicitation. If you plan to attend the conference, notify* by letter or telephone* no later than close of business* Notification of your intention to attend is essential in the event the conference is rescheduled or cancelled. (c) Written questions must be submitted to: U.S. Nuclear Regulatory Commission Division of Contracts and Property Management ATI'N:

• Mail Stop
• Washington, DC 20555 115

(d) The envelope must be marked "Solicitation No. * /Prebid Conference." (e) A transcript of the conference will be furnished to all prospective offerers through the issuance of an amendment to the solicitation.

           *To be incorporated into the solicitation.

(End of Provision)

 §2052.214-71   Bidder qualifications and past experiences.

As prescribed *in §2014.201-670(b)(l), insert the following provision in applicable solicitations: Bidder Qualifications and Past Experiences (a) The bidder shall list* previous/current contracts for the same or similar products/services. This information will assist the contracting officer in his/her Determination of Responsibility. Lack of previous/current contracts for same or similar products/services or failure to submit this information will not necessarily result in an unfavorable Determination of Responsibility. (1) Contract No.: Name and address of 116

Government agency or commercial entity: Point of Contact and Telephone Number: (2) Contract No.: Name and address of Government agency or commercial entity: Point of Contact and Telephone Number: (3) Contract No.: Name and address of Government agency or commercial entity: Point of Contact and Telephone Number: 117

(b) The bidder shall also provide the name, title and full telephone number for its technical representative and contracts/business representative: (1) Technical Representative Name _____________ Title_______________ Telephone No. ~ - ~ - - - - - - - - (2) Contracts/Business Representative Name________________ Title_ _ _ _ _ _ _ _ _ _ _ _ _ __ Telephone No.

                   -lr'fo be incorporated into the solicitation (End of Provision)

§2052.214-72 Bid evaluation. As prescribed at §2014.201-670(b)(2), insert the following provision in applicable solicitations: Bid Evaluation 118

(a) Bids in response to this IFB must set forth full, accurate, and complete information as required herein. The penalty for making false statements in bids is prescribed in 18 U.S.C. 1001. (b) Award will be made to that responsive, responsible bidder within the me~ing of Federal Acquisition Regulation 9-1 whose total bid amount, as set forth by the bidder in Section B of this IFB constitutes the lowest overall evaluated final contract price to the Government based upon the requirements as set forth in the schedule. Bids will be evaluated for purposes of award by first ascertaining the sum of the total amount for each - of the items specified in Section B of this solicitation. This will constitute the bidder's "Total Bid Amount." (c) Bidders shall insert a definite price or indicate "no charge" in the blank space provided for each item and/or sub-item listed in Section B. Unless expressly provided for herein,-no additional charge will be allowed for work performed under the contract other than the unit prices stipulated for each such item and/or sub-item. (d) Any bid which is materially unbalanced as to price for the separate items specified in Section B of this IFB may be rejected as nonresponsive. An unbalanced bid is defined as one which is based on prices which, in the opinion of the NRG are significantly less than cost for some work and/or prices that may be significantly overstated for other work. (e) Separation charges, in any form, are not solicited. Bids containing charges for discontinuance, termination, failure to exercise an 119

option, or for any other purpose will cause the bid to be rejected as non:tesponsive. (f) A preaward onsite survey of the bidder's facilities, equipment, etc., in accordance with FAR 9.106 may be made by representatives of the Commission for the purpose of determining whether the bidder is responsible within the meaning of FAR 9.1 and whether the bidder possesses qualifications that are conducive tq the production of work that will meet the requirements, specifications, and provisions of this contract. Also, if requested by the Commission, the prospective contractor may be required to - submit statements within* hours after such request: (1) concerning their ability to meet any of the minimum standards set forth in FAR 9.104, (2) samples of work, and (3) names and addresses of additional clients, Government agencies and/or commercial firms which the bidder is now doing or had done business with. (g) Notwithstanding paragraph (b) of this section, the award of any contract resulting from this solicitation will be made on an "all or none" basis. Thus, bids submitted on fewer than the items listed in Section B of this IFB, or on fewer than the estimated quantity will cause the bid to be rejected as nonresponsive. 11-'fo be inserted into solicitation. (End of Provision)

     §2052.214-73     Timely receipt of bids.

120

As prescribed at §2014.670(b)(3), insert the following provision in applicable solicitations: Timely Receipt of Bids Because the NRC is a secure facility with perimeter access control, bidders shall allow additional time for hand delivery (including express mail and delivery services) of bids to ensure that they are timely received in the depository at the address shown in Item 9 on the Standard Form 33. (End of Provision) §2052.214-74 Disposition of bids. As prescribed at §2014.670(b)(4), insert the following provision in applicable solicitatiqns: Disposition of Bids After award of the contract, one copy of each unsuccessful bid will be retained by NRC's Division of Contracts and Property Management. Unless return of the additional copies of the bid is requested by the bidder upon submission of the bid, all other copies will be destroyed. This request should appear in a cover letter accompanying the bid. (End of Provision) 121

  §2052.215-70    Preproposal conference.

As prescribed at §2015.407-70(c), insert the following provision in applicable solicitations: (a) A preproposal conference is scheduled for: Date:

• Location:
• Time: *

(b) This conference is to afford interested parties an opportunity to present questions and clarify uncertainties regarding this solicitation. You are requested to mail written questions concerning those areas of uncertainty which, in your opinion, require clarification or correction. You are encouraged to submit your questions in writing not later than one working day prior to the conference date. Receipt of late questions may result in the questions not being answered at the conference although they will be considered in preparing any necessary amendment to the solicitation. If you plan to attend the conference, notify* by letter or telephone* no later than close of business* Notification of your intention to attend is essential in the event the conference is rescheduled or cancelled. (c) Written questions must be submitted to: U.S. Nuclear Regulatory Commission 122

Division of Contracts and Property Management ATTN:

• Mail Stop
• Washington, DC 20555 (d) The envelope must be marked "Solicitation No.* /Preproposal Conference."

(e) A transcript of the conference will be furnished to all prospective offerors through the issuance of an amendment to the - solicitation.

                 *To be incorporated into the solicitation.

(End of Provision)

 §2052.215-71    Proposal presentation and format.

As prescribed at §2015.407-70(b), insert the following provision in applicable solicitations: Proposal Presentation and Format (a) Proposals must be typed, printed or reproduced on letter-size paper and each copy must be legible. 123

(b) Proposals in response to this Request for Proposal must be submitted in the following three (3) separate and distinct parts: (1) Two (2) original signed copies of this solicitation package. All applicable sections must be completed by the offerer. (2) One (1) original and* copies of the "Cost Proposal" must be submitted. (3) One (1) original and* copies of the "Technical and Management Proposal" must be submitted. (c) Correctness of the Proposal. Caution--offerors are hereby notified that all information provided in )its proposals, including all resumes, must be accurate, truthful, and complete to the best of the offerer's knowledge and belief. The Commission will rely upon all such representations made by the offerer both in the evaluation process and for the performance of the work by the offerer selected for award. The Commission may require the offerer to substantiate the credentials, education and employment history of its employees, subcontractor personnel and consultants, through submission of copies of transcripts, diplomas, licenses, etc. (d) Cost Proposal. (1) The offerer shall use Standard Form 1411, Contracting Pricing 124

Proposal Cover Sheet, in submitting the Cost Proposal. A copy of the form and instructions are attached to this solicitation. The information must include pertinent details sufficient to show the elements of cost upon which the total cost is predicted. The Cost Proposal must be submitted separately from the Technical and Management Proposal. (2) When the offeror's estimated cost for the proposed work exceeds $100,000 and the duration of the contract period exceeds six months, the offerer shall submit a Contractor Spending Plan (CSP) as part of its cost proposal. Guida.nee for completing the CSP is attached. (e) Technical and Management Proposal. (1) The Technical and Management Proposal may not contain any reference to cost. Resource information, such as data concerning labor hours and categories, materials, subcontracts, travel, computer time, etc., must be included in the Technical and Management Proposal so that the offeror's understanding of the scope of work may be evaluated. (2) The offeror shall submit with the Technical and Management Proposal full and complete information as set forth below to permit the Government to make a thorough evaluation and a sound determination that the proposed approach will have a reasonable likelihood of meeting the requirements and objectives of this procurement. (3) Statements which paraphrase the statement of work without 125

communicating the specific approach proposed by the offerer or statements to the effect that the offerer's understanding can or will comply with the statement of work may be construed as an indication of the offerer's lack of understanding of the statement of work and objectives. (4) The Technical and Management Proposal must set forth as a minimum, the manner and sequence outlined below: (i) Discussion of the statement of work to substantiate the offerer's understanding of the work requirements. (ii) Discussion of the proposed method of approach to meet the contract objectives. (iii) Discussion of potential problem areas and the approach to be taken to resolve these areas. (iv) Statements of any interpretations, requirements, or assumptions made by the offerer. (v) Discussion of support personnel and facilities available to assist the professional personnel. (vi) Identification of "Key Personnel," and for the 126

person(s) so identified, specify the percentage of time that will be committed to other projects over the course of the proposed contract period of performance. (vii) Resumes for all professional personnel, including subcontractors and consultants, to be utilized in the performance of any resulting contract. Include educational background, specific pertinent work experience and a list of any pertinent publications authored by the individual. (viii) Description of the source of personnel required for performance of each task including those not presently employed by the offerer. If any of the personnel are under commitment, describe the terms of the commitment(s). Note specifically the personnel that will be employed at time of contract award. - (~) If the offerer plans to obtain consultant services, explanation of the need for such services. List the proposed - consultants by name, describe the work they will perform under this contract, and include related past experience. Individuals who are employees of the contractor or of the U.S. Government are prohibited from being paid as a consultant under this contract. (x) If the offerer plans to subcontract any of the work to be performed, list of proposed subcontractors, if known, by name. Provide a detailed description of the work to be performed by the subcontractor, and supporting documentation on the selection 127

process, i.e., competitive vs. noncompetitive, technical and cost evaluations. (xi) A detailed schedule for work to be performed and identification of significant milestones and completion dates for each subpart or task. (xii) Projected scheduling and contingency planning demonstrating a logical progression and integration of the tasks to ensure completion within the performance period and without program slippage. (xiii) Description of the management organizational structure delineating areas of responsibility and authority under the proposed contract. Describe the relationship of the project organization to corporate management and to subcontractors, if any. Discuss the functions and authorities of the project manager. (xiv) Procedures to periodically review in-house organizational functions, program reviews and controls and subsequent coordination with the NRC. (xv) Management controls expected to be utilized to preclude a contract cost growth. (xvi) List of any commitments with other organizations, Government and/or commercial, for the same or similar effort. 128

(xvii) List of* previous contracts for the same or similar services, with the name, title, and full telephone number of a contact for each. (xviii) List of the name, title and full telephone number for the proposer's technical representative and contracts/business representative. (xix) *----* * - - - - * * - - - - * *----* *----*

• To be incorporated into the solicition (End of Provision)

§2052.215-72 Proposal presentation and format - language for negotiated task order contracts. As .prescribed at §2015.407-70(b)(1), insert the following 18.{lguage in provision §2052.215-71. (d) Cost Proposal. (1) The offeror shall provide a cost proposal based on the Estimated Level of Effort. The total estimated cost proposed by the offeror is used for evaluation purposes only. Any resultant contract, except a requirements contract, contains an overall cost ceiling 129

whereby individual task orders may be issued. The cost and fee, if any, for each task order is individually negotiated and also contains a cost ceiling. §2052.215-73 Data universal numbering system (DUNS) number. As prescribed at §2015.407-70(a)(l), insert the following provision in applicable solicitations: Data Universal Numbering System (DUNS) Number All offerers shall provide their DUNS-number code in the box marked "code" in item 15A of Standard Form 33. In the event the code is unknown, enter "NA." (End of Provision) §2052.215-74 Key personnel. As prescribed at §2015.407-70(a)(2), insert the following clause in applicable solicitations and contracts: Key Personnel (a) The following individuals are considered to be essential to the successful performance of the work hereunder: 130

The contractor agrees that personnel may not be removed from the contract work or replaced without compliance with paragraphs (b) and (c) of this section. (b) If one or more of the key personnel, for whatever reason, becomes, or is expected to become unavailable for work under this contract for a continuous period exceeding 30 work days, or is expected to devote substantially less effort to the work than indicated in the proposal or initially anticipated, the contractor shall immediately notify the contracting officer and shall, subject to the concurrence of the contracting officer, promptly replace the personnel with personnel of at least substantially equal ability and qualifications. (c) Each request for approval of substitutions must be in writing and contain a detailed explanation of the circumstances necessitating the proposed substitutions. The request must also contain a complete resume for the proposed substitute and other information requested or needed by the contracting officer to evaluate the proposed substitution. The contracting officer or his/her authorized representative shall evaluate the request and promptly notify the contractor of his or her approval or disapproval in writing. (d) If the contracting officer determines that suitable and timely replacement of key personnel who have been reassigned, terminated or have 131

otherwise become unavailable for the contract work, is not reasonably forthcoming, or that the resultant reduction of productive effort would be so substantial as to impair the successful completion of the contract or the service order, the contract may be terminated by the contracting officer for default or for the convenience of the Government, as appropriate. If the contracting officer finds the contractor at fault for the condition, the contract price or fixed fee may be equitably adjusted downward to compensate the Government for any resultant delay, loss or damage. (End of Clause)

               -lr'fo be incorporated into any resultant contract

§2052.215-75 Travel reimbursement. As prescribed at §2015.407-70(d), insert the clauses in appropriate solicitations and contracts: Travel Reimbursement (a) Total expenditure for domestic travel may not exceed*---- without the prior approval of the contracting officer. 132

(b) The contractor is encouraged to use Government contract airlines, AMTRAK rail services, and discount hotel/motel properties in order to reduce the cost of travel under this contract. The contracting officer shall, upon request, provide each traveler-with a letter of identification which is required in order to participate in this program. The Federal Travel Directory (FTD) identifies carriers, contract fares, schedules, payment conditions, and hotel/motel properties which offer their services and rates to Government contractor personnel traveling on official business under this contract. The ITD, which is issued monthly, may be purchased from the U.S. Government Printing Office, Washington, DC 20402. (c) The contractor will be reimbursed for reasonable domestic travel costs incurred directly and specifically in the performance of this contract. The cost limitations for travel costs are determined by the Federal Travel Regulations that are in effect on the date of the trip. These regulations specify the daily maximum per diem rates for specific localities within the Conterminous United States (CONUS), the standard CONUS rate, the allowance for meals and incidental expenses (M&IE), the cost of - travel by privately owned automobile, and the items which require receipts. A copy of the regulations may be obtained from the Superintendent of Documents, Government Printing Office, Washington, DC 20402. (d) When the Government changes the Federal Travel Regulations, it is the responsibility of the contractor to notify the contracting officer in accordance with the Limitations of Cost clause of this contract if the contractor will be unable to make all of the approved trips and remain within the cost and fee limitations of this contract due to the changes. 133

(e) The rates for foreign travel are established by the U.S. Department of State and are listed in a publication entitled "Maxi.mum Travel Per Diem Allowances for Foreign Areas." Copies of this publication may be obtained from the U.S. Government Printing Office, Washington, DC 20402.

                    'l'r'fo be incorporated into any resultant contract (End of Clause)

§2052.215-76 Travel approvals. As prescribed in §2015.407-70(d), insert the following clause in applicable solicitations and contracts: Travel Approvals (a) All domestic travel requires the prior approval of the project officer. (b) All foreign travel must be approved in advance by the NRC on NRC Form 445 and must be in compliance with FAR 52.247-63 Preference for U.S. Flag Air Carriers. Foreign travel approval must be communicated in writing through the contracting officer. (End of Clause) §2052.215-77 Project officer authority. 134

As prescribed in §2015.407(a)(3), insert the following clause in applicable solicitations and contracts: Proiect Officer Authority (a) The contracting officer's authorized representative hereinafter referred to as the project officer for this contract is: -- Name: Address: Telephone Number: * (b) Performance of the work under this contract is subject to the technical direction of the NRC project officer. The term "technical direction" is defined to include the following: (1) Technical direction to the contractor which shifts work emphasis between areas of work or tasks, fills in details or otherwise serves to accomplish the contractual statement of work. (2) Provide advice and guidance to the contractor in the preparation of drawings, specifications or technical portions of the work description. (3) Review and, where required by the contract, approval of technical reports, drawings, specifications and technical information to be delivered by the contractor to the Government under the contract. 135

(c) Technical direction must be within the general statement of work stated in the contract. The project officer does not have the authority to and may not issue any technical direction which: (1) Constitutes an assignment of work outside the general scope of the contract. (2) Constitutes a change as defined in the "Changes" clause of this contract. (3) In any way causes an increase or decrease in the total estimated contract cost, the fixed fee, if any, or the time required for contract performance. (4) Changes any of the expressed terms, conditions or specifications of the contract. (5) Terminates the contract, settles any claim or dispute arising under the contract, or issues any unilateral directive whatever. (d) All technical directions must be issued in writing by the project officer or must be confirmed by the project officer in writing within ten (10) working days after verbal issuance. A copy of the written direction must be furnished to the contracting officer. (e) The contractor shall proceed promptly with the performance of technical directions duly issued by the project officer in the manner 136

prescribed by this clause and within the project officer's authority under the provisions of this clause. (f) If, in the opinion of the contractor, any instruction or direction issued by the project officer is within one of the categories as defined in paragraph (c) of this section, the contractor may not proceed but shall notify the contracting officer in writing within five (5) working days after the receipt of any instruction or direction and shall request the contracting officer to,modify the contract accordingly. Upon receiving the notification from the contractor, the contracting officer shall issue an appropriate contract modification or advise the contractor in writing that, in the contracting officer's opinion, the technical direction is within the scope of this article and does not constitute a change under the Changes Clause. (g) Any unauthorized commitment or direction issued by the project officer may result in an unnecessary delay in the contractor's performance and may even result in the contractor expending funds for unallowable costs under the contract. (h) A failure of the parties to agree upon the nature of the instruction or direction or upon the contract action to be taken with respect thereto is subject to §52.233 Disputes. (i) In addition to providing technical direction as defined above, the project officer shall--- 137

(1) Monitor the contractor's technical progress, including surveillance and assessment of performance, and recommend to the contracting officer changes in requirements. (2) Assist the contractor in the resolution of technical problems encountered during performance. (3) Review all costs requested for reimbursement by the contractor and submit to the contracting officer recommendations for approval, disapproval, or suspension of payment for supplies and services required under this contract.

               *To be incorporated into any resultant contract (End of Clause)

§2052.215-78 Project officer authority - Alternate 1. As prescribed at §2015.407-70(1)(4), insert the following clause in applicable solicitations and contracts: Project Officer Authority - Alternate 1 (a) The contracting officer's authorized representative hereinafter referred to as the project officer for this contrac~ is: Name:

• 138

Address:

• Telephone Number: *

(b) The project officer shall-- (1) Place delivery orders for items required under this contract. (2) Monitor contractor performance and recommend to the contracting officer changes in requirements. (3) Inspect and accept products/services provided under the contract. (4) Review all contractor invoices/vouchers requesting payment for products/services provided under the contract and make recommendations for approval, disapproval, or suspension. (c) The project officer may not make changes to the express terms and conditions of this contract.

              *To be incorporated into any resultant contract (End of Clause)

§2052-215-79 Timely receipt of proposals. 139

As prescribed in §2015.407-70(a)(6), insert the following provision in applicable solicitations: Timely Receipt of Proposals Because NRC is a secure facility with perimeter access control, offerers shall allow additional time for hand delivery (including express mail and delivery services) of proposals to ensure that they are timely e, received in the depository at the address shown in Item 9 on the Standard Form 33. (End of Provision)

  §2052.215-80    Aw.ard notification and commitment of public funds As prescribed at §2015.407-70(a)(7), insert the following clause in applicable solicitations and contracts:

Award Notification and CoDHDitment of Public Funds (a) All offerers will be notified of their selection or nonselection as soon as possible. Formal notification of nonselection for unrestricted awards may not be made until a contract has been awarded. Pursuant to requirements of FAR 15.100l(b)(2), prelimin~ry notification will be provided prior to award for small business set-aside procurements on negotiated procurements. 140

(b) It is also brought to your attention that the contracting officer is the only individual who can legally commit the NRG to.the expenditure of public funds in connection with this procurement. This means that unless provided in a contract document or specifically authorized by the contracting officer, NRG technical personnel may not issue contract modifications, give informal contractual commitments or otherwise bind, commit, or obligate the NRG contractually. Informal contractual commitments include (1) Encouraging a potential contractor to incur costs prior to receiving a contract; (2) Requesting or requiring a contractor to make changes under a contract without formal contract modifications; (3) Encouraging a contractor to incur costs under a cost-reimbursable contract in excess of those costs contractually allowable; and (4) Committing the Government to a course of action with regard to a potential contract, contract change, claim, or dispute. (End of Clause) §2052.215-81 Disposition of proposals. 141

As prescribed in §2015.407-70(a)(8), insert the following provision in applicable solicitations: Disposition of Proposals After award of the contract, one copy of each unsuccessful proposal is retained by.the NRC's Division of Contracts and Property Management. Unless return of the additional copies of the proposals is requested by the offerer upon submission of proposal, all other copies will be destroyed. This request should appear in a cover letter accompanying the proposal. (End of Provision) §2052.215.82 Contract award and evaluation of proposals. As prescribed in §2015.670(a), insert the following provision in applicable solicitations: Contract Award and Evaluation of Proposals (a) By use of numerical and narrative scoring techniques, proposals are evaluated against the evaluation factors specified in paragraph* below. These factors are listed in their relative order of importance. Award is made to the offerer (1) whose proposal is technically acceptable, (2) whose technical/cost relat.ionship is most advantageous to the Government, and (3) who is considered to be responsible within the meaning of Federal Acquisition Regulation Part 9.1. 142

(b) Although cost is a factor in the evaluation of proposals, technical merit in the evaluation criteria set forth below is a more significant factor in the selection of a contractor. Further, to be selected for an award, the proposed cost must be realistic and reasonable. (c) The Government may -- (1) Reject any or all offers if the action is in the public interest; (2) Accept other than the lowest offer; and (3) Waive informalities and minor irregularities in offers received. (d) The Government may award a contract on the basis of initial offers received, without discussions. Therefore, each initial offer should contain the offeror's best terms from a cost or price and technical standpoints. (e) A separate cost analysis is performed on each cost proposal. To provide a common base for evaluation of cost proposals, the level of effort data must be expressed in staff hours. Where a Contractor Spending Plan (CSP) is required by other provisions of this solicitation, consideration is given to the Plan for completeness, reasonableness, and as a measure of effective management of the effort. 143

(f) In making the above determination, an analysis is performed by the Government that takes into consideration the results of the technical evaluation and cost analysis.

                 *Tobe incorporated into the solicitation.

(End of Provision) §2052.215-83 Contract award and evaluation of proposals - cost more important than technical merit. As prescribed at §2015.670(1), substitute the following paragraph for paragraph (b) in the clause at §2052.215.83: (b) Although technical merit in the evaluation criteria set forth below is a factor in the evaluation of proposals, cost is more a significant factor in the selection of a contractor. Further, to be selected for an award, the proposed cost must be realistic and reasonable. §2052.215-84 Contract award and evaluation of proposals - cost and technical merit of equal value. As prescribed at §2015.670(2), substitute the following paragraph for paragraph (b) in the clause at §2052.215.83: 144

(b) In the selection of a contractor, technical merit in the evaluation criteria set forth below and cost bear equal significance. To be selected for an award, the proposed cost must be realistic and reasonable. §2052.216-70 Level of effort. Level of Effort As prescribed at §2016.307-70(a), insert the following provision in applicable solicitations: The NRC's estimate of the total of professional and clerical effort for this project is approximately* staff-years for the duration of this contract. This information is advisory and is not to be considered as the sole basis for the development of the staffing plan. For the purposes of the Government estimate, 2000 hours constitute a staff year.

              *To be incorporated into any resultant contract (End of Provision)

§2052.216-71 Indirect cost rates. As prescribed at §2016.307-70(b)(l), insert the following clause in applicable solicitations and contracts: 145

Indirect Cost Rates (a) Pending the establishment of final indirect rates which must be negotiated based on audit of actual costs, the contractor shall be reimbursed for allowable indirect costs as follows: (b) The contracting officer may adjust the above rates as appropriate during the term of the contract upon acceptance of any revisions proposed by the contractor. It is the contractor's responsibility to notify the contracting officer in accordance with FAR 52.232-20, Limitation of Cost, or FAR 52.232-22, Limitation of Funds, as applicable, if these changes affect performance of work within the established cost or funding limitations.

         *To be incorporated into any resultant contract.

(End of Clause) §2052.216-72 Indirect cost rates - Alternate 1. As prescribed at §2016.307-70(b)(2), insert the following clause in applicable solicitations and contracts: Indirect Cost Rates - Alternate 1 146

The contractor is reimbursed for allowable indirect costs in accordance with the following predetermined (fixed) rates:

         -k'fo be incorporated into any resultant contract.

(End of Clause) §2052.216-73 Indirect cost rates - Alternate 2. As prescribed at §2016.307-70(b)(3), insert the following clause in applicable solicitations and contracts: Indirect Cost Rates - Alternate 2 (a) For this contract, the final amount reimbursable for indirect costs is as follows: (b) In the event that indirect rates developed by the cognizant audit activity on the basis of actual allowable costs are less than the ceiling rates, the rates established by the cognizant audits must apply. The Government may not be obligated to pay any additional amounts for indirect costs above the ceiling rates set forth above for the applicable period.

                -k'fo be incorporated into any resultant contract.

147

(End of Clause)

 §2052.216-74   Task order procedures.

As prescribed at §2016.506-70(a), insert the following clause in applicable solicitations and contracts: Task Order Procedures (a) Task Order Request for Proposal. When a requirement within the scope of work for this contract is identified, the contracting officer shall transmit to the contractor a Task Order Request for Proposal (TORP) which includes the following, as appropriate -- - (1) Scope of work/meetings/travel and deliverables; (2) Reporting requirements; (3) Period of performance - place of performance; (4) Applicable special provisions; (5) Technical skills required; and (6) Estimated level of effort. (b) Task Order Proposal. 148

By the date specified in the TORP, the contractor shall deliver to the contracting officer a written proposal that provides the following technical and cost information, as appropriate -- (1) Technical Proposal Content; (i) A discussion of the scope of work requirements to substantiate the contractor's understanding of the requirements of the task order and the contractor's proposed method of approach to meet the objective of the order. (ii) Resumes for professional personnel proposed to be utilized in the performance of any resulting task order. Include educational background, specific pertinent work experience and a list of any pertinent publications authored by the individual. (iii) Identification of administrative support personnel and/or facilities that are needed to assist the professional personnel in completing work on the task order. ( iv) Identification of "Key Personnel" and the number of staff hours that will be committed to completion of work on the task order. (2) Cost Proposal. 149

The contractor's cost proposal for each task order must be prepared using Standard Form 1411, Contract Pricing Proposal cover sheet. A copy of the form and instructions are attached to this contract. Each task order cost proposal must be fully supported by cost and pricing data adequate to establish the reasonableness of the proposed amounts. When the contractor's estimated cost for the proposed task order exceeds $100,000 and the period of performance exceeds six months, the contractor may be required to submit a Contractor Spending Plan (CSP) as part of its cost proposal. The TORP indicates if a CSP is required. (c) Task Order Award. The contractor shall perform all work described in definitized task orders issued by the contracting officer. Definitized task orders include the following - (1) Statement of work/meetings/travel and deliverables; - (2) (3) (4) Reporting requirements; Period of performance; Key personnel; (5) Applicable special provisions; and (6) Total task order amount including any fixed fee. (End of Clause) 150

§2052.216-75 Accelerated task order procedures. As prescribed at §2016.506-70(b), insert the following clause in applicable solicitations and contracts: Accelerated Task Order Procedures (a) The NRC may require the contractor to commence work before receipt of a definitized task order from the contracting officer. Accordingly, when the contracting officer verbally authorizes the work, the contractor shall proceed with performance of the task order subject to the monetary limitation established for the task order by the contracting officer. (b) When this accelerated procedure is employed by the NRG, the contractor agrees to begin promptly negotiating with the contracting officer the terms of the definitive task order and agrees to submit a cost proposal with supporting cost or pricing data. If agreement on a definitized task order is not reached by the target date mutually agreed upon by the contractor and contracting officer, the contracting officer may determine a reasonable price and/or fee in accordance with Subpart 15.8 and Part 31 of the FAR, subject to contractor appeal as provided in 52.233-1, Disputes. In any event, the contractor shall proceed with completion of the task order, subject only to the monetary limitation established by the contracting officer and the terms and conditions of the basic contract. (End of Clause) 151

D

   §2052.222-70    Nondiscrimination because of age.

As prescribed at §2022.901-70, insert the following clause in applicable solicitations and contracts: Nondiscrimination Because of Age It is the policy of the Executive Branch of the Government that (a) - contractors and subcontractors engaged in the performance of Federal contracts may not, in connection with the employment, advancement, or discharge of employees or in connection with the terms, conditions, or privileges of their employment, discriminate against persons because of their age except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirements, and (b) that contractors and subcontractors, or person acting on their behalf, may not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for employment unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan, or statutory requirement. (End of Provision)

   §2052.231-70    Preaward costs.

As prescribed in §2031.109-70, insert the following clause in applicable solicitations and contracts: 152

Preaward Costs Allowable costs under this contract must include such costs, incurred by the contractor in connection with the work covered by this contract during the period from

• and including
• to the effective date of this contract, as would have been allowable pursuant to the terms of this contract if this contract had been in effect during that period; provided, however, that the costs may not in aggregate exceed* which is included in the estimated cost of this contract.

              *To be incorporated into any resultant contract (End of Clause)

§2052.235-70 Dissemination of contract information. As prescribed in §2035.70, insert the following clause in applicable solicitations and contracts: Dissemination of Contract Information The contractor shall comply with the requirements of the attached NRC Manual Chapters 3202, "Publication of Technical Reports Prepared by NRC Contractors, Including Reports Prepared Under or Pursuant to Interagency Agreements," and 3206, "NRC Contractor Unclassified Papers, Journal Articles and Press or Other Media Releases on Regulatory and Technical Subjects," (see Section J for List of Attachments) regarding publications or 153

dissemination to the public of any information, oral or written, concerning the work performed under this contract. Failure to comply with this clause constitutes grounds for termination of this contract. (End of Clause)

 §2052.235-71   Private use of contract information and data.

- As prescribed in §2035.70, insert the following clause in applicable solicitations and contracts: Private Use of Contract Information and Data Except as specifically authorized by this contract, or as otherwise approved by the contracting officer, information and other data developed or acquired by or furnished to the contractor in the performance of this contract may be used only in connection with the work under this contract. (End of Clause)

 §2052.235-72   Safety, health, and fire protection.

As prescribed in §2035.70, insert the following clause in applicable solicitations and contracts: 154

I-*' Safety, Health, and Fire Protection The contractor shall take all reasonable precautions in the performance of the work under this contract to protect the health and safety of its employees and of members of the public, including NRC employees and contractor personnel, and to minimize danger from all hazards to life and property and shall comply with all applicable health, safety, and fire protection regulations and requirements (including reporting requirements) of the Commission and the Department of Labor. In the event that the contractor fails to comply with these regulations or requirements, the contracting ofzicer may, without prejudice to any other legal or contractual rights of the Commission, issue an order stopping all or any part of the work; thereafter, a start order for resumption of work may be issued at the discretion of the contracting officer. The contractor shall make no claim for an extension of time or for compensation or damages by reason of, or in connection with, this type of work stoppage .

• Part 2053 - Forms [RESERVED]

Dated at Bethesda, Maryland this 22nd day of September , 1989. For the Nuclear Regulatory Commission. P~,r&~ Office of Administration. 155}}