[Federal Register Volume 60, Number 81 (Thursday, April 27, 1995)]
[Proposed Rules]
[Pages 20663-20668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10262]
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DEPARTMENT OF ENERGY
48 CFR Part 970
[Regulation Identifier Number 1991-AB20]
Acquisition Regulation; Department of Energy Management and
Operating Contracts
AGENCY: Department of Energy.
ACTION: Amendment of a notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) today amends its March 2, 1995,
notice of proposed rulemaking (60 FR 11646) which proposed amendments
to the DOE Acquisition Regulation (DEAR) provisions applicable to
subcontracting by management and operating contractors. Today's
amendments do not affect the principal provisions of the proposal which
are: Substitution of more commercial-like subcontracting objectives,
expectations, and standards for the so-called ``Federal norm'' that, in
effect, requires DOE's management and operating contractors to follow
certain Federal-oriented prescribed procedures in their award of
subcontracts; and elimination of the reference concerning General
Accounting Office protest jurisdiction over such subcontract awards.
Rather, this amendment of the earlier notice deals with administrative
matters, mostly technical, that DOE reserved for further analysis and
action during the public comment period. DOE today amends its notice of
proposed rulemaking to redesignate most of the requirements of DEAR
970.7104 to two other subsections of the DEAR and to eliminate certain
of them. The amendment also moves two paragraphs previously set forth
in DEAR 970.7104 to another existing subsection.
DATES: Written comments on this amended notice of proposed rulemaking
must be received on or before May 30, 1995. Comments on today's
amendment should be submitted separately from those related to the
March 2, 1995, notice of proposed rulemaking. This is necessary as the
Department may elect to finalize those portions of the March 2 rule,
which are unaffected by today's amendment, in more than one stage.
ADDRESSES: Comments on the proposed rulemaking should be sent to the
following address: U.S. Department of Energy, Office of Contractor
Management and Administration (HR-55), Attention: James J. Cavanagh,
1000 Independence Avenue SW., Washington, D.C. 20585.
FOR FURTHER INFORMATION CONTACT: James J. Cavanagh, Office of
Contractor Management and Administration (HR-55), U.S. Department of
Energy, 1000 Independence Avenue SW., Washington, D.C. 20585; telephone
202-586-8257.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background.
II. Section-by-Section Analysis.
III. Public Comments.
IV. Procedural Requirements.
I. Background
On March 2, 1995, DOE published in the Federal Register (60 FR
11646) a notice of proposed rulemaking. That notice proposed to amend
the DEAR to modify requirements for management and operating contractor
purchasing systems. Principally, DEAR subpart 970.71 is being amended
to identify certain purchasing system objectives and standards,
eliminate the application of the ``Federal norm,'' place greater
reliance on commercial practices, and remove the provisions concerning
General Accounting Office protest jurisdiction over management and
operating contractor subcontract awards.
Today's notice does not alter any of the above-described principal
provisions of the proposed amendments. The main focus of this notice is
an administrative matter discussed in the Supplementary Information
section of the March 2 notice and reserved for further analysis and
action during the comment period. That issue is whether to eliminate
DEAR Sec. 970.7104.
The March 2 proposed rulemaking stated:
Section 970.7104, Conditions of purchasing by management and
operating contractors, is removed. DOE believes it is not necessary
to retain this section since many of the requirements comply with
provisions of statutes and are already reflected in contract
clauses. These requirements, will therefore, continue to be
applicable as contractual requirements. Some of the requirements,
however, are not specifically prescribed in other parts of the DEAR.
The Department will review such requirements prior to finalization
of this proposed rule and may redesignate appropriate paragraphs, in
the final rule, to other parts of the DEAR, if necessary. If such
requirements are identified, the Department will publish a Federal
Register notice, prior to issuing a final rule, listing the
paragraphs being considered for redesignation.
[[Page 20664]] DOE's analysis showed that, except for seven items
proposed for deletion as discussed below, most of the provisions of
Sec. 970.7104 should be retained either in the preaward process or in
the subcontract document itself. Moreover, DOE has reconsidered the
desirability of proposing to eliminate the convenient listing of these
subjects and the clarity that comes with such a listing. Further,
removing the section could be interpreted incorrectly as proposing to
eliminate the underlying substantive requirements identified elsewhere.
Therefore, DOE has chosen instead to propose elimination of seven
subparagraphs of that section and relocation of most of the subjects
from Sec. 970.7104 to two contract clauses, thereby removing the
content of Sec. 970.7104 in its entirety. The amendment proposes no new
policy and adds no new requirements for a contractor. For the most
part, the regulatory treatment of each subject has been simplified and
shortened. For details, see the section-by-section analysis below.
II. Section-by-Section Analysis
A. In accordance with Section II, paragraph 6 of the notice of
proposed rulemaking published on March 2, 1995, the Department of
Energy has performed a detailed review of the subjects covered by DEAR
970.7104 to determine which requirements should be redesignated in the
other parts of the DEAR. This amendment to the notice of proposed
rulemaking reflects the proposed disposition of the provisions of DEAR
970.7104-1 through 970.7104-47. The redesignation table set forth below
will graphically reflect this proposed disposition.
B. The Department has decided that the subjects of 970.7104 which
are to continue to play a part in the award of subcontracts under DOE
management and operating contracts fall generally into two categories.
The first category consists of processes that lead to the award of
prospective subcontracts, and the second category consists of those
clauses that should be included in appropriate subcontracts and
provisions that guide the administration of certain of those clauses.
As a result of this recognition, this amendment proposes to deal with
the first category as additions to an existing clause. A new clause is
proposed to deal with the subjects that comprise the second category.
C. This amendment proposes to add subjects in the first category to
the clause currently set forth at 970.5204-22, ``Contractor Purchasing
System.'' The March 2, 1995, notice of proposed rulemaking proposed to
change paragraph (a) of 970.5204-22. Today's amendment proposes to
further amend paragraph (a) to insert the phrase ``this clause, DEAR
970.5204-XX, and'' in the first sentence. It would also expand the
content of that clause to cover requirements that directly relate to
the management and operating contractor's purchasing system and methods
in the award of subcontracts.
D. This amendment also proposes to identify subjects in the second
category in paragraph (b) of a new clause at 970.5204-XX. The purpose
of that clause would be to continue to provide a convenient listing of
clauses and related requirements that management and operating
contractors would be required to include in, or apply to, prospective
subcontracts. That new clause in its paragraph (a) would contain a
general instruction directing the inclusion of the listed clauses and,
where appropriate, the application of attendant regulations governing
the subject matter of the cited clause. Paragraph (a) would recognize
that certain of the listed clauses flow down pursuant to the management
and operating contractor's prime contract with the Department (e.g.,
Employment of the Handicapped). Certain other clauses that would be
included in appropriate subcontracts either are not included in the
prime contract (e.g., Service Contract Act) or, if included, do not
contain a flowdown instruction. For these latter two types of clauses,
paragraph (a) would instruct the contractor to apply requirements to
subcontracts in the same manner as the Department does for the award of
a DOE prime contract which is not a management and operating contract.
E. For certain subjects, such as termination and indemnification,
there would be coverage of different aspects of the same subject in
both of the clauses at 970.5204-22 and at 970.5204-XX.
F. The following table identifies the new location of each item in
970.7104 and indicates whether the original requirement for the subject
provision is based on an Executive Order, Department policy, Federal
regulation or statute.
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Old citation
970.- Subject New citation 970.5204-
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7104-1........ Contingent Fees (P).......................................... Deleted.
7104-2........ Record Retention (S)......................................... XX(b)(20).
7104-3........ Utility Services (P)......................................... 22(b).
7104-4........ Leasing Property, Plant or Equipment (P)..................... 22(q).
7104-5........ Leasing of Motor Vehicles (P)................................ 22(m).
7104-6........ Strategic and Critical Materials (P)......................... 22(t).
7104-7........ Purchases of Special Items (S/R/P)........................... 22(p).
7104-8........ Purchasing Alternative Determinations (P).................... 22(q).
7104-9........ Qualification Requirements (P)............................... Deleted.
7104-10....... Organization Conflicts of Interest (S)....................... XX(b)(16).
7104-11....... Cost or Pricing Data (S)..................................... XX(b)(5).
7104-12....... Small Business and Small Disadvantaged Business Concerns (S). XX(b)(23) and 970.1901.
7104-13....... Labor Surplus Concerns (P)................................... Deleted.
7104-14....... Convict Labor (P)............................................ Deleted.
7104-15....... Contract Work Hours and Safety Standards Act (S)............. XX(b)(4).
7104-16....... Davis-Bacon Labor Standards for Construction (S)............. XX(b)(8).
7104-17....... Walsh-Healey (P)............................................. Deleted.
7104-18....... Equal Employment Opportunity (E)............................. XX(b)(11).
7104-19....... Service Contract Act (S)..................................... XX(b)(22).
7104-20....... Vietnam Vets (S)............................................. XX(b)(24).
7104-21....... Environmental & Occupational Safety & Health (S/P)........... XX(b)(10).
7104-22....... Buy American (S)............................................. 22(g).
7104-23....... Patents, Data and Copyrights (S/P)........................... XX(b)(17).
7104-24....... Bonds & Insurance (S/P)...................................... 22(f).
7104-25....... Indemnification (S/P)........................................ 22(l) and XX(b)(14).
[[Page 20665]]
7104-26....... Taxes (P).................................................... XX(b)(25).
7104-27....... Audit of Subcontractors (S/R/P).............................. 22(e).
7104-28....... Construction & A-E conflict-of-interest (P).................. 22(h).
7104-29....... Quality Assurance (P)........................................ 22(r).
7104-30....... Termination (P).............................................. 22(v) and XX(b)(26).
7104-31....... Authorization of Subcontractors' Use of Government Supply Deleted.
Sources (P).
7104-32....... Safeguarding Classified Information (S)...................... XX(b)(21).
7104-33....... Cost Accounting Standards (S)................................ XX(b)(7).
7104-34....... Clean Air & Water (S/R)...................................... XX(b)(3).
7104-35....... Air Transportation by U.S. Flag Carriers (S)................. XX(b)(1).
7104-36....... Acquisition of Real Property (S/P)........................... 22(c).
7104-37....... Management, Acquisition and use of Information Resources (P). 22(n).
7104-38....... Privacy Act (R).............................................. XX(b)(19).
7104-39....... Officials Not To Benefit (P)................................. Deleted.
7104-40....... Subcontractors' Reporting Systems (P)........................ XX(b)(6).
7104-41....... Employment of the Handicapped (S)............................ XX(b)(9).
7104-42....... Unclassified Controlled Nuclear Information (R).............. 22(w).
7104-43....... Government Property (S/R).................................... 22(k).
7104-44....... Foreign Travel (P)........................................... XX(b)(13).
7104-45....... Anti-Kickback (S)............................................ XX(b)(2).
7104-46....... Setoff of Assigned Subcontractor Proceeds (P)................ 22(s).
7104-47....... Additional Flowdown and Extension Provisions................. .................................
--Exam. of records by Comptroller General (S).............. XX(b)(12).
--Accts Records and Inspection (S/P)....................... XX(b)(20).
--Printing (P)............................................. XX(b)(18).
--Priorities (S/R)......................................... 22(o).
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(E)=Executive Order.
(P)=Policy.
(R)=Regulation.
(S)=Statute.
G. The substance of the material related to Small Business and
Small Disadvantaged Business Concerns cited in DEAR Subpart 970.7104-
12, paragraphs (a), (b), (c) and (d) have been relocated in DEAR Part
970.1901, paragraphs (c) and (d).
H. From DEAR 970.7104, it is proposed to delete seven subsections
as identified and for the reasons set forth in the following table:
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Old citation
970.- Subject Reason for deletion
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7104-1........ Contingent Fees.......... These subject matters have
been incorporated into
appropriate subcontracts of
management and operating
(M&O) contracts as a matter
of DOE policy. Because it
has been decided that these
subject matters should be
handled in the same manner
as for subcontracts under
non-M&O cost-reimbursement
contracts, flowdown is no
longer required.
7104-9........ Qualification .............................
Requirements
7104-14....... Convict Labor .............................
7104-17....... Walsh-Healy Public .............................
Contracts Act
7104-39....... Officials Not to Benefit
7104-13....... Labor Surplus Area The preference of the Federal
Concerns. procurement system that this
subsection reflected has
been substantially altered
by section 7101 of the
Federal Acquisition
Streamlining Act of 1994.
7104-31....... Authorization for The authority for contracting
Subcontractors' Use of officers to allow management
Government Supply and operating contractor
Sources.. subcontract level access to
Government supply sources
exists at DEAR 970.51.
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I. This amendment to the March 2, 1995, notice of proposed
rulemaking will also redesignate the substance of 970.7103, paragraph
(c)(7) to 970.5204-22(e)(4) to make clear that the contractor is
required to determine the allowability of subcontractor reimbursable
costs in accordance with 48 CFR (FAR) part 31.
J. Conforming amendments will be made to 970.5204-21, -5204-24, -
5204-45, and -5204-50 to remove references to text proposed to be
deleted.
III. Public Comments
DOE invites interested persons to participate by submitting data,
views, or arguments with respect to the DEAR amendments set forth in
this rule. Three copies of written comments should be submitted to the
address indicated in the ADDRESSES section of this rule. All comments
received will be available for public inspection during normal work
hours. All written comments received by the date indicated in the DATES
section of this notice will be carefully assessed and fully considered
prior to the effective date of these amendments as a final rule. Any
information considered to be confidential must be so identified and
submitted in writing, one copy only. DOE reserves the right to
[[Page 20666]] determine the confidential status of the information and
to treat it according to its determination in accordance with 10 CFR
1004.11.
IV. Procedural Requirements
The procedural requirements discussed in section IV of the
Supplementary Information of the March 2, 1995, notice of proposed
rulemaking (60 FR 11646) apply as well to this amendment of proposed
rulemaking.
List of Subjects in 48 CFR Parts 933 and 970
Government procurement.
Issued in Washington, D.C. on April 20, 1995.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set forth in the preamble, chapter 9 of title 48 of
the Code of Federal Regulations is proposed to be amended as set forth
below.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
1. The authority citation for part 970 continues to read as
follows:
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act, Pub.
L. 95-91 (42 U.S.C. 7254), sec 201 of the Federal Civilian Employee
and Contractor Travel Expenses Act of 1985 (41 U.S.C. 420) and sec.
1534 of the Department of Defense Authorization Act, 1986, Pub. L.
99-145 (42 U.S.C. 7256a), as amended.
2. At 970.1901 add paragraphs (c) and (d) as follows:
970.1901 General.
* * * * *
(c) Contractors may provide in their purchasing systems and methods
for the setting aside of requirements for small disadvantaged
businesses, provided there are sufficient qualified entities available
to assure effective competition, and provided that the cost or price of
the successful offer is found by the contractor to be fair and
reasonable.
(d) In pursuit of the objective of contractor purchasing of a fair
proportion of supplies and services from small business concerns, small
disadvantaged business concerns and woman-owned business concerns, the
HCA may authorize the use of innovative means after receipt of proper
approval by the Procurement Executive and the DOE Office of Small and
Disadvantaged Business Utilization.
970.5204-21 Property.
3. At 970.5204-21, Property, remove the phrase ``As prescribed in
970.7104-43,'' from the introductory text.
4. At 970.5204-22, the clause ``Contractor Purchasing System'' is
revised to read as follows:
970.5204-22 Contractor purchasing system.
* * * * *
Contractor Purchasing System (month year TBE)
(a) General. The contractor shall develop, implement, and
maintain formal policies, practices, and procedures to be used in
the award of subcontracts consistent with this clause, 48 CFR (DEAR)
970.5204-XX, and 48 CFR (DEAR) 970.71. The contractor's purchasing
system and methods shall be fully documented, consistently applied,
and acceptable to DOE in accordance with 48 CFR (DEAR) 970.7102. The
contractor's purchasing performance will be evaluated against
agreed-upon criteria in accordance with the performance criteria and
measures clause(s) set forth elsewhere in this contract. DOE
reserves the right at any time to require that the contractor submit
for approval any or all purchases under this contract. The
contractor shall not purchase any item or service the purchase of
which is expressly prohibited by the written direction of DOE and
shall use such special and directed sources as may be expressly
required by the DOE contracting officer.
(b) Acquisition of Utility Services. Utility services shall be
acquired in accordance with the requirements of 48 CFR (DEAR)
970.0803.
(c) Acquisition of Real Property. The contractor shall contract
for real property in accordance with 48 CFR (DEAR) Subpart 917.74.
(d) Advance Notice of Proposed Subcontract Awards. The
contractor shall provide advance notice of proposed subcontract
awards in accordance with 48 CFR (DEAR) 970.7109; shall document
purchases in writing; and shall establish and maintain subcontract
files which present an accurate and adequate record of all
purchasing transactions.
(e) Audit of Subcontractors.
(1) The contractor shall assure that its purchasing systems and
methods provide for: (i) periodic post-award audit of cost-
reimbursement subcontractors at all tiers, and (ii) audits, where
necessary, to provide a valid basis for pre-award or cost or price
analysis.
(2) Responsibility for determining the costs allowable under
each cost-reimbursement subcontract remains with the contractor or
next higher-tier subcontractor. Contractors' purchasing systems and
methods shall provide, in appropriate cases, for the timely
involvement of the contractor and the DOE contracting officer in
resolution of subcontract cost allowability.
(3) Where audits of subcontractors of any tier are required,
arrangements may be made to have the cognizant Federal agency
perform the audit of the subcontract. These arrangements shall be
made administratively between DOE and the other agency involved and
shall provide for the cognizant agency to audit in an appropriate
manner in light of the magnitude and nature of the subcontract.
(4) Allowable costs for cost reimbursable subcontracts are to be
determined in accordance with the cost principles of 48 CFR (FAR)
part 31, appropriate for the type of organization to which the
subcontract is to be awarded, as supplemented by 48 CFR (DEAR) part
931. Allowable costs in the purchase or transfer from contractor-
affiliated sources shall be determined in accordance with 48 CFR
(DEAR) 970.7105 and 48 CFR (DEAR) 970.3102-15(b). In no case,
however, shall these arrangements preclude determination by the DOE
contracting officer of the allowability or unallowability of
subcontractor costs claimed for reimbursement by the contractor.
(f) Bonds and Insurance.
(1) The contractor shall obtain from a subcontractor a payment
bond on Standard Form 25A, modified to name the contractor as well
as the United States of America as obligees, for all fixed price,
unit-price and cost-reimbursement construction subcontractors in
excess of $25,000. The penal amounts shall be determined as set
forth in 48 CFR (FAR) 28.102-2(b).
(2) The contractor may accept more than one corporate surety
upon recognizance, stipulation, bond, or undertaking in both
construction and other contracts, provided that in no case will the
liability of any co-surety exceed the maximum penal sum for which it
is qualified for any one obligation. For subcontracts other than
construction, a co-surety may reinsure amounts in excess of its
capacity with a corporate surety having the required underwriting
capacity that appears on the acceptable list of corporate sureties.
No such reinsurance is acceptable in connection with construction
subcontracts. Corporate co-sureties may individually obligate
themselves for a definite sum less than the full amount of the bond;
however, all such obligations must total the entire amount of the
bond and each co-surety must bind itself ``jointly and severally''
for the purpose of allowing a joint action or actions against any or
all of the corporate sureties.
(g) Buy American. The contractor shall comply with the
provisions of the Buy American Act as reflected in 48 CFR (FAR)
52.225-3, as amended by 48 CFR (DEAR) 970.5203-3.
(h) Construction and Architect-Engineer Contracts.
(1) Independent Estimates. A detailed, independent estimate of
costs shall be prepared for all construction work to be
subcontracted.
(2) Specifications. Specifications for construction shall be
prepared in accordance with the DOE publication entitled ``General
Design Criteria Manual.''
(3) Prevention of Conflict of Interest.
(i) The contractor shall not award a contract for construction
to the architect-engineer firm or an affiliate that prepared the
design. This prohibition does not preclude the award of a
``turnkey'' contract so long as the subcontractor assumes all
liability for defects in design and construction and consequential
damages.
(ii) The contractor shall not award both a cost-reimbursement
contract and a fixed- [[Page 20667]] price contract for construction
or architect-engineer services or any combination thereof to the
same firm where those contracts will be performed at the same site.
(iii) The contractor shall not employ the construction
subcontractor or an affiliate to inspect the firm's work. The
contractor shall assure that the working relationships of the
construction subcontractor and the subcontractor inspecting its work
and the authority of the inspector are clearly defined.
(i) Contractor-Affiliated Sources. Purchase or transfer of
equipment, materials, supplies, or services from a contractor-
affiliated source shall be treated in accordance with 48 CFR (DEAR)
970.7105.
(j) Contractor-Subcontractor Relationship. The obligations of
the contractor under paragraph (a) of this clause, including the
development of the purchasing system and methods, and purchases made
pursuant thereto, shall not relieve the contractor of any obligation
under this contract (including, among other things, the obligation
to properly supervise, administer, and coordinate the work of
subcontractors). Subcontracts shall be in the name of the
contractor, and shall not bind or purport to bind the Government.
(k) Government Property. The contractor's purchasing system and
methods for the identification, inspection, maintenance, protection,
and disposition of Government property shall conform with the
policies and principles of 48 CFR (FAR) part 45, 48 CFR (DEAR) part
945, the Federal Property Management Regulations, the DOE Property
Management Regulations, and their contracts.
(l) Indemnification. No subcontractor may be otherwise
indemnified except with the prior approval of the Procurement
Executive.
(m) Leasing of Motor Vehicles. Contractors shall abide by 48 CFR
(FAR) 8.11 and 48 CFR (DEAR) 908.11.
(n) Management, Acquisition and Use of Information Resources.
The contractor shall provide in its purchasing system and methods,
with regard to the purchase of automatic data processing resources
and telecommunications facilities, services, and equipment, for
review and approval of requirements in ways that conform to the
procedures contained in applicable DOE Directives (Orders and
Notices).
(o) Priorities, Allocations and Allotments. The contractor shall
provide in its purchasing system and methods for the extension to
appropriate subcontracts of priorities, allocations and allotments
in accordance with the clause or clauses of this contract dealing
with priorities and allocations.
(p) Purchase of Special Items. Purchase of the following items
shall be in accordance with the following provisions of 48 CFR
(DEAR) subpart 908.71 and the Federal Property Management
Regulations, as shown:
(1) Motor vehicles
908.7101
(2) Aircraft
908.7102
(3) Security Cabinets
908.7106
(4) Alcohol
908.7107
(5) Helium
908.7108
(6) Fuels and packaged petroleum products
908.7109
(7) Coal
908.7110
(8) Arms and Ammunition
908.7111
(9) Heavy Water
908.7121(a)
(10) Precious Metals
908.7121(b)
(11) Lithium
908.7121(c)
(12) Products and services of the blind and severely handicapped
FPMR 41 CFR 101-26.701
(13) Products made in Federal penal and correctional institutions
FPMR 41 CFR 101-26.702
(q) Purchase vs. Lease Determinations. The contractor shall
provide for a system to determine whether required equipment and
property should be purchased or leased. The system shall establish
appropriate thresholds for application of lease vs. purchase
determinations and shall be used in making such determinations: (1)
at time of original acquisition; (2) when lease renewals are being
considered; and (3) at other times as circumstances warrant.
(r) Quality Assurance. The contractor shall provide no less
protection for the Government in its subcontracts than is provided
in the prime contract.
(s) Setoff of Assigned Subcontractor Proceeds. The contractor
shall provide that in cases in which a subcontractor has been
permitted to assign payments to a financial institution, the
assignment shall treat any right of setoff in accordance with 48 CFR
(DEAR) 932.803.
(t) Strategic and Critical Materials. The contractor may use
strategic and critical materials and shall fulfill its requirements
in accordance with 48 CFR (FAR) 8.002.
(u) Suspended, Debarred or Ineligible Contractors. Proposed
awards to firms or individuals on the GSA Consolidated List of
Debarred, Suspended and Ineligible Contractors shall be forwarded to
DOE for approval notwithstanding any prior purchasing system
acceptance.
(v) Termination. When subcontracts are terminated as a result of
the termination of all or a portion of this contract, the contractor
shall settle with subcontractors in conformity with the policies and
principles relating to settlement of prime contracts in 48 CFR (FAR)
subparts 49.1, 49.2 and 49.3. When subcontracts are terminated for
reasons other than termination of this contract, the contractor
shall settle such subcontracts in general conformity with the
policies and principles in 48 CFR (FAR) subparts 49.1, 49.2, 49.3
and 49.4. Each such termination shall be documented and consistent
with the terms of this contract. Terminations which require approval
by the Government shall be supported by accounting data and other
information as may be directed by the contracting officer.
(w) Unclassified Controlled Nuclear Information. In its
purchasing system and methods, the contractor shall provide for the
treatment of unclassified uncontrolled nuclear information to be
handled in accordance with 10 CFR part 1017.
970.5204-24 Subcontractor cost or pricing data.
5. At 970.5204-24, Subcontractor cost or pricing data, remove the
phrase ``As prescribed in 970.7104-11,'' from the introductory text.
970.5204-45 Termination.
6. At 970.5204-45, Termination, remove the phrase ``As prescribed
in 970.7104-30,'' from the introductory text.
970.5204-50 Cost and schedule control systems.
7. At 970.5204-50, Cost and schedule control systems, remove the
phrase ``As prescribed in 970.7104-40,'' from the introductory text.
8. Add new subsection 970.5204-XX, Flowdown of contract
requirements to subcontracts, to read as set forth below:
970.5204-XX Flowdown of contract requirements to subcontracts.
Insert the following clause.
Flowdown of Contract Requirements to Subcontracts (month year
TBE).
(a) The contractor shall include the clauses in paragraph (b) of
this clause in appropriate subcontracts.
(1) To the extent that the clause is included in this prime
contract, the contractor shall comply with that portion of the
clause that directs application to subcontracts.
(2) To the extent that the clause is not included in this prime
contract, or where it is included, but there is no instruction for
treatment in subcontracts, the contractor shall include the clause
in accordance with applicable regulatory guidance which would apply
if the subcontract were a prime contract with the Federal
government.
(3) In all cases, where a regulation is cited, the contractor
shall comply with the regulation in administration of the related
clause.
(b) Clauses and related regulations.
(1) Air transportation by U.S.-flag carriers. Clause at 48 CFR
(FAR) 52.247-63.
(2) Anti-Kickback Act of 1986. Clause at 48 CFR (FAR) 52.203-7.
(3) Clean Air and Water. Clause at 48 CFR (FAR) 52.223-2, and
follow the requirements of 48 CFR (FAR) 23.1.
(4) Contract Work Hours and Safety Standards Act. Clause at 48
CFR (FAR) 52.222-4, and follow the requirements of 48 CFR (FAR)
22.3.
(5) Cost or Pricing Data. Clause at 48 CFR (DEAR) 970.5204-24.
(6) Cost and Schedule Control Systems. Clause at 48 CFR (DEAR)
970.5204-50.
(7) Cost Accounting Standards. Clause at 48 CFR (FAR) 52.230-2,
as prescribed in 48 CFR (DEAR) 970.30.
(8) Davis-Bacon Act. Clauses as directed at 48 CFR (FAR) 22.407,
and follow the requirements of 48 CFR (FAR) 22.4 to the same extent
that they would apply if the subcontract had been directly awarded
by DOE. 48 CFR (DEAR) Subpart 922.4 and 48 CFR (DEAR) 970.2273
provide guidance to assist in determining the applicability of these
regulations.
(9) Employment of the Handicapped. Clause at 48 CFR (FAR)
52.222-36, and follow the requirements of 48 CFR (FAR) 22.14.
(10) Environmental and Occupational Safety and Health. Clauses
as prescribed in 48 CFR (DEAR) 970.2303-2. [[Page 20668]]
(11) Equal Employment Opportunity. Clauses as prescribed in 48
CFR (FAR) 22.810, as applicable, and follow the requirements of 48
CFR (FAR) 22.8, 48 CFR (DEAR) 922.8, E.O. 11246 and 40 CFR part 60.
(12) Examination of Records by Comptroller General. Clause at 48
CFR (FAR) 52.215-1.
(13) Foreign Travel. Clause at 48 CFR (DEAR) 970.5204-52.
(14) Nuclear Hazards Indemnity. Clause at 48 CFR (DEAR)
970.2870.
(15) Officials Not To Benefit. Clause at 48 CFR (FAR) 52.203-1.
(16) Organizational Conflicts of Interest. Clause at 48 CFR
(DEAR) 952.209-72.
(17) Patent, Data and Copyrights. Appropriate clauses as
required by 48 CFR (DEAR) parts 927 and 970.
(18) Printing. Clause at 48 CFR (DEAR) 970.5204-19.
(19) Privacy Act. Clauses at 48 CFR (FAR) 52.224-1 and 48 CFR
(FAR) 52.224-2, and follow the requirements of 48 CFR (FAR) 24.1.
(20) Record Retention. Clause at 48 CFR (DEAR) 970.5204-9.
(21) Safeguarding Classified Information. Appropriate clauses as
prescribed at 48 CFR (DEAR) 970.0404.
(22) Service Contract Act. Clauses at 48 CFR (FAR) 52.222-40 and
48 CFR (FAR) 52.222-41.
(23) Small Business and Small Disadvantaged Business Concerns.
Clause at 48 CFR (FAR) 52.219-9.
(24) Special Disabled and Vietnam Era Veterans. Clause at 48 CFR
(FAR) 52.222-35, and follow the requirements of 48 CFR (FAR) Subpart
22.13.
(25) Taxes. Clause at 48 CFR (DEAR) 970.5204-23.
(26) Termination. Appropriate clause or clauses as set forth at
48 CFR (FAR) 52.249-1 through 52.249-14.
(c) Other. Errors in or omissions from the above DOE-compiled
listing of contract requirements requiring flowdown to appropriate
subcontracts shall not be construed as waiving a requirement for the
contractor to comply with a requirement for subcontracts appearing
elsewhere in this contract or a requirement for subcontracts as
required by law. Such errors or omissions shall not form the basis
for a defense by the contractor in a legal or administrative
proceeding.
[FR Doc. 95-10262 Filed 4-26-95; 8:45 am]
BILLING CODE 6450-01-P
